Ressam & Benida
[2022] FedCFamC2F 874
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ressam & Benida [2022] FedCFamC2F 874
File number(s): PAC 4744 of 2018 Judgment of: JUDGE OBRADOVIC Date of judgment: 8 July 2022 Catchwords: FAMILY LAW – Parenting – allegations of family violence – allegations of sexual violence – whether the father is acting in the best interest of the child – whether father has ability to co-parent with the mother – whether mother should have sole parental responsibility for the child – whether father should spend time with the child – child has severe behaviour issues – whether father spending time with the child is causing child’s behavioural issues – mother to have sole parental responsibility – child to spend no time with the father. Legislation: Family Law Act 1975 (Cth) ss.60B, 60CC, 60CA, 61DA, 65DAA Cases cited: Banks & Banks [2015] FamCAFC 36
Browne v Dunn (1894) 6 R 67
Conroy & Penner [2022] FedCFamC1A 39
Hull v Thompson [2001] NSWCA 359
In the Marriage of LC and TC (1998) 23 Fam LR 75
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Poniatowska v Higginbotham [2009] FCA 680
Slater & Light [2011] FamCAFC 1
Taupau v HVAC Constructions (Qld) Pty Ltd [2012] NSWCA 293
Division: Division 2 Family Law Number of paragraphs: 159 Date of last submission/s: 9 May 2022 Date of hearing: 28, 29, and 30 October 2020, 13, and 14 September 2021, 8 October 2021, 3 November 2021, and 9 May 2022. Place: Parramatta Appearing for the Applicant: Mr Shaw (8 October 2021, and 3 November 2021) Solicitor for the Applicant: Applicant in person (28, 29, and 30 October 2020, and 9 May 2022), Mr Agbugba (13, and 14 September 2021) Counsel for the Respondent: Ms Windsor Solicitor for the Respondent: Burridge & Legg Solicitors Counsel for the Independent Children’ s Lawyer: Mr Ladopolous Solicitor for the Independent Children’ s Lawyer: Sarah Bevan Family Lawyers ORDERS
PAC 4744 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RESSAM
Applicant
AND: MS BENIDA
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
8 JULY 2022
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The mother, Ms Benida, have sole parental responsibility for the child, X, born in 2016.
3.The child live with the mother.
4.The child spend no time with the father, Mr Ressam.
5.The father is restrained from:
(a)Approaching the child.
(b)Communicating, or attempting to communicate, with the child.
(c)Inciting any other person to approach or communicate with the child on his behalf.
6.The mother must, in a timely manner, provide the father with:
(a)Updates about significant matters regarding the child’s health and his progress at school;
(b)Information about decisions made by her in the exercise of her sole parental responsibility;
(c)Copies of any relevant reports about the child.
7.The father is a liberty to send the child a card and/or gift at Christmas and on the child’s birthday each year, but such gifts must be addressed to the mother and she is at liberty to open the items and then pass them to the child unless the contents are, in her opinion, inappropriate.
8.Both parties must inform and keep each other informed of their email or other electronic contact details, and the mother must, within 14 days, provide the father with an appropriate address (which does not need to be her residential address) to which he can post items pursuant to the preceding order.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Ressam & Benida has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC
INTRODUCTION
X (“X”) has recently turned 6. His parents have been separated since he was some two and a half years old. He has known parental conflict his whole life.
Since October 2021 X has been living with his mother, Ms Benida (“mother”), the respondent in these proceedings and has not spent any time with his father, Mr Ressam (“father”), the applicant in these proceedings. That is because at the conclusion of the evidence at final hearing and prior to delivering judgement, the Court suspended the time which X had been spending with his father pursuant to interim orders. Brief ex-tempore reasons were given at the time.
During the final hearing, the issues morphed from a determination of how much time X is to spend with each of his parents to whether he will continue to spend time with his father at all, and if so how much time. Coupled with this, the Court is to determine the question of parental responsibility.
X’s behaviour and attachment to each of his parents are central to the determination of these parenting proceedings, as is the father’s insight into his own behaviour and his capacity to meet X’s emotional needs.
LEGAL PRINCIPLES
The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“Act”). Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in s.60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s.60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1 at [45]
In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm than to the benefit to the child of having a meaningful relationship with both of their parents.
A meaningful relationship “is one which is important, significant and valuable to the child”.[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]
[2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 (“McCall”) at [121]
[3] McCall at [122]
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[4]
[4] MRR v GR [2010] HCA 4 at [15]
While all relevant primary and secondary considerations have been considered, not each of the considerations has been discussed in the reasons. The reason for this is not only that discussion does not mean consideration[5] but also because the issues to be determined by the Court were significantly narrowed at the conclusion of the evidence and before submissions. Likewise, not all of the evidence at trial has been discussed in the reasons, and only the relevant factual findings are referred to.
[5] Banks & Banks [2015] FamCAFC 36
CHRONOLOGY AND PROCEDURAL HISTORY
The father was born in Country C in 1984, and he is currently 38 years of age.
The mother was born in Australia in 1986, and she is currently 36 years of age.
The parties met in 2006, and started living together in about mid to late 2006.
The parties’ only child, X, was born in 2016.
In September 2018, the parties separated. This occurred when the mother left the parties’ home with X.
The father initiated parenting proceedings in the then Federal Circuit Court of Australia on 4 October 2018.
Interim parenting orders were made on 29 March 2019 providing that X live with the mother and spend time with the father in a two week cycle as follows:
(a)In week 1 from 10am Saturday to 4pm Monday and from 4pm Thursday to 4pm Friday; and
(b)In week 2 from 4pm Tuesday to 4pm Wednesday.
A Family Report was prepared and released to the parties on 11 February 2020.
On 5 August 2020, the matter was set down for an undefended final hearing as against the mother on 15 September 2020, and by way of application in a case filed 4 September 2020 the undefended hearing was vacated on the same date.
On 15 September 2020, the matter was also then set down for a final defended hearing on 28, 29 and 30 October 2020.
The final hearing commenced in person with the father being self-represented. The evidence did not conclude on the third day and accordingly the matter was adjourned part-heard to 13 and 14 September 2021. Orders were made by consent for the parties to attend family therapy and to obtain a behavioural assessment of X. In addition, further interim orders were made for the father to spend time with X as follows:
(a)In week 1 from 10am Saturday to 4pm Tuesday; and
(b)In week 2 from 4pm Sunday until 4pm Tuesday.
During the adjourned period, the mother filed an application in a case on 24 March 2021 seeking that the father attend an appointment with a clinical psychologist for family therapy, and that the mother facilitate the carrying out of a behavioural assessment for X by D Psychology without the involvement of the father, save for that she inform him of the initial appointment.
That application was determined by another Judge and on 7 June 2021, orders were made by consent, amongst others, that both parties attend an appointment scheduled on 16 June 2021 at D Psychology to commence a behavioural assessment of X and that the father attend upon family therapy with clinical psychologist Ms E.
The final hearing resumed on 13 September 2021. The father was then represented by a solicitor who at the commencement of the resumed hearing pressed an application in a case filed 3 September 2021 to vacate the part-heard final hearing dates on the basis that he had not had sufficient time to prepare for the hearing. The application was refused by the Court, and the transcript of the proceedings on 28, 29 and 30 October 2020 was made available to the father’s solicitor and the other parties.
The proceedings resumed on 13 and 14 September 2021 via video link. On 14 September 2021, the matter was again adjourned part-heard for submissions on 8 October 2021.
On 30 September 2021, the father’s solicitor, filed a Notice of Intention to Withdraw as Lawyer.
On 7 October 2021, the mother filed an application in a proceeding seeking that all previous parenting orders be discharged, that she have sole parental responsibility for X, that X live with her, and that X spend no time with the father pending further order. Due to an administrative error that application was not formally given a return date, however was the subject of discussion at the next listing. The application was ultimately not pressed.
On 8 October 2021, counsel appeared for the father on a direct access basis, and orders were made for the father to file his submissions within 14 days, the mother to file and serve her submissions in reply within a further 7 days, and for judgment to be reserved thereafter. In addition, orders were made for the interim parenting orders to be stayed and that X live with the mother, pending the delivery of final judgment.
On 3 November 2021, the matter was listed before the Court to determine the father’s application filed on 27 October 2021 to extend the time for filing his submissions by one week, noting that the mother opposed the granting of such extension. The Court set down a timetable for submissions to be filed by the father by 5 November 2021 and for submissions in reply to be filed by the mother and Independent Children’s Lawyer (“ICL”) by 12 November 2021. The mother attempted to agitate an interim application on this occasion, more particularly the application in a proceeding which was lodged on 7 October 2021 and not formally provided a return date. Ultimately, the mother withdrew that application as she did not seek to re-open the proceedings. Judgment was therefore reserved on 12 November 2021.
Almost 6 months after the Court reserved its decision, in May 2022, on its own motion, the Court relisted the matter in order to hear from the parties as to whether the matter should be re-opened, an order made for a Child Impact Report, and further evidence from the parties. After hearing from the parties and the ICL, the proceedings were not re-opened and the Court’s decision remained reserved.
Father’s Case
The father was self-represented on the first three days of the final hearing (28 to 30 October 2020). When the final hearing resumed on 13 and 14 September 202, he was represented by a solicitor, and subsequently by counsel via a direct access brief (with counsel preparing the submissions the father relies upon). The father was cross-examined by counsel for the mother and counsel for the ICL.
The father’s case in summary is that:
(a)The mother was possessive, controlling, and abusive throughout their relationship.
(b)The mother applied excessively harsh and psychologically abusive disciplinary practices on X, and that she was also neglectful.
(c)The mother is not capable of meeting X’s needs.
Mother’s Case
The mother was represented throughout the hearing. She was cross-examined by the father’s solicitor, and counsel for the ICL.
The mother’s case in summary is that:
(a)The father was possessive and controlling through their relationship, and has been emotionally, financially, physically and sexually abusive towards her. The mother says that some instances of abuse occurred in the presence of X.
(b)The father continues to seek to control and undermine her post separation, particularly her parenting capacity. The mother says that the father has also engaged in stalking and anti-social behaviours since separation.
(c)The father’s approach to parenting and his lack of support for X having a relationship with the mother, including his manipulation of X, has resulted in serious behavioural issues for X.
(d)The father lacks insight into the future needs of X, specifically when one has regard to the father’s denial about the behavioural difficulties the mother says X has, the father’s inability to recognise the value of the mother’s relationship with X, and the events which occurred when the mother’s eldest brother recently passed away.
RELEVANT FINDINGS
Credit
The parties were in dispute about a significant number of facts, and each told the story of their time together through the prism of their own beliefs, experiences and prejudices:
Each witness sees events from his or her own perspective. Over time there is sometimes a degree of rationalisation to fit objective material (documents) as it emerges into the understanding of events. Some witnesses’ memories become refined by a strong belief in the rightness of their role, so that objectivity is lost to a degree…
There is a tendency in all of us to put past events in a perspective which fits with our own beliefs, but there is an undisputed core of fact underlying many of [the]… allegations…[6]
[6] Poniatowska v Higginbotham [2009] FCA 680 at [47], [75] (not disturbed on appeal)
Each of the parties portrayed themselves in a favourable light in terms of their own parenting style. For example, the mother says that she believed in “unconditional love and appropriate responses according to X’s needs” while the father considered that in contrast to the mother’s relationship with X “X and I have a healthy and secure relationship”[7].
[7] Father’s “Case information” document emailed on 28 October 2020
The relevant core of fact underlying the parties’ relationship, their differing parenting approaches and their way of dealing with conflict are particularly relevant to determining an outcome that is in X’s best interest. What orders may be in X’s best interest is a matter to be determined by an exercise of the Court’s discretion, based upon findings relevantly made.
The Court had the opportunity of hearing from both the father and the mother, and of observing the parties give evidence.
There was little to no cross-examination of the parties about many of the allegations each made against the other. There was some cross-examination of the father in respect of the allegations he made against the mother, but no cross-examination about the allegations the mother made against him. There was no cross-examination of the mother whatsoever about the allegations she made against the father.
The Court finds that the mother is a credible witness, who did not shy away from the difficult questions and tried her best to provide insightful and honest answers. The mother’s case was child focused, as was observed through her evidence and particularly her answers in cross-examination.
The father on the other hand, gave evidence in a manner that appeared to be self-focused and obfuscatory. While the Court appreciates that witnesses give evidence in all sorts of manners, and that nerves and stress might play a role in the way a witness appears or seems to appear, even with these things in mind, the Court finds that the father was self-absorbed in much of what he had to say and that he had difficulty in separating his needs from those of X.
The father’s evidence was often at times rambling, and rather than clarifying relevant issues and providing clear, concise, and/or helpful answers, the father attempted to shift the focus from his own behaviours and actions onto those of the mother. A primary example of this was the evidence in relation to the father travelling to Town F after the mother’s brother passed away in 2021, as outlined at paragraphs [91] below.
The father’s accounts are, unfortunately unsurprisingly in this jurisdiction, significantly different to what the mother alleges relevantly occurred. Where the two are in conflict, the Court prefers the evidence of the mother to that of the father.
The story of the parties’ relationship
The parties met in 2006 and commenced cohabitation in 2006. At the time, the father was 22 years old and the mother was 20.
In 2010, the mother commenced a degree, which she completed in 2015. Subsequently, the mother worked as an educator approximately 3-4 days per week.
At the time the parties commenced living together, the father was working and studying full-time. The father worked full-time until 2016, when he was made redundant.
X is an only child and he was born in 2016.
After being made redundant in 2016, the father says that because X was 4 months old this provided him the opportunity to implement a “father first approach to life”, work on his own business, and support the mother to return to work. The father says that he was the primary carer of X. He says that the mother began to have “mood swings and lashing out occasionally”, and so he absorbed most of the household chores and caring duties, including waking up during the night to bottle feed X and, at times, sleeping with X on the couch to ensure the mother’s sleep was not disturbed.
The Court does not accept the father’s evidence about the level of the care he says he provided to X. Rather, the Court further accepts the mother’s evidence about the father being involved in his business and work, and therefore not available to provide care to X in the manner the father deposed to.
The Court finds that both parents were involved in X’s care when he was a baby, although due to the paid work each of them engaged in, the mother was, in X’s early life, primarily responsible for the majority of X’s daily needs, including feeding, bathing and his overall care. The father, when available, also participated in X’s care.
The mother returned to work in 2017, after 12 months of maternity leave. X attended day care three days a week, whilst the mother worked 4 days per week. The father would care for X one day during the week, although he would often leave X with the paternal aunt while he worked on business projects.
From 2017 to 2018, the paternal aunt cared for X when the parties were both at work and when X did not attend day care.
From March to September 2018, X attended day care for three days, and the mother also worked three days per week.
On or about 26 September 2018, the parties separated on a final basis when the mother left the home with X. At the time X was 2 years old. The mother and X initially lived in a refuge, then in assisted housing, and are now they are in private rental accommodation.
Since October 2020, X has been living with the mother and not spending any time with the father. Also living in the mother’s home is the maternal grandmother, who provides assistance to the mother in caring for X.
Physical discipline
The parties frequently disagreed about parenting styles during the time they lived together.
Each of the parties put evidence before the Court of the other parent’s authoritarian parenting style, and gave details of instances of what they considered to be excessive physical discipline. The mother gives examples such as the father smacking X’s hand and yelling at X, while the father gives examples such as the mother being short-tempered, disinterested and using time-out in an inappropriate manner.
The mother says that she was unable to parent X the way she understood good parenting to be, and over time her feelings of helplessness increased. The father conversely says that he was concerned for X, that the mother applied excessively harsh and psychologically abusive discipline upon X, in addition to neglectful behaviours.
By the time of the final hearing, there was no evidence that either party was engaging in physically chastising X as a regular and usual method of discipline. The mother no longer used time-outs.
Neither party relied on the asserted historical disciplining of X as a basis for suggesting that X was at present at an unacceptable risk of harm due to excessive physical discipline in that parent’s care.
The father however, remained concerned about what he considered the mother’s lack of capacity to deal with X’s (alleged) behaviours and the impact this was having on X’s emotional wellbeing. The mother likewise remained concerned about the father’s approach to parenting and his behaviour towards X, which manifested in some very concerning behaviours by X when he returned to her care after spending time with the father. These matters are addressed later in the reasons.
Family Violence
The mother has detailed a significant history of abuse by the father towards her, and maintains that she is terrified of the father due to his past actions, and coercive and controlling behaviours. Only certain events are referred to below.
The father “categorically” denies the mother’s accounts and allegations of family violence in their entirety, and makes allegations against the mother. He also says that he believes the mother is trying to “exploit the current domestic violence climate in order to weaponise false allegations” against him.
Not every allegation of family violence which has been made is the subject of particular findings, nor is it referred to in these Reasons for Judgment. Indeed there are only a few findings which are relevant to determining the ultimate issue.
Sexual Violence during the relationship
The mother puts before the Court ample evidence of sexually abusive behaviour towards her by the father. The father denies these allegations at final hearing, and asserts that the mother was the perpetrator of both physical abuse and sexual coercion in the parties’ relationship.
Neither party was cross-examined in respect of the sexual abuse allegations which have been made. Neither party relied on such allegations as a basis for findings that the alleged perpetrator of the sexual violence poses an unacceptable risk of harm to X at present.
No findings were sought in relation to the specific allegations of sexual abuse, and none have been made.
However, in the context of the coercive and controlling behaviours which have been found to have been engaged in by the father, it is more likely than not, that the allegations by the mother of sexual abuse did occur. Those behaviours described by the mother are consistent with the father’s other behaviours towards her.
Furthermore, the Court observes that the allegations by the father that the mother engaged in sexual coercion simply do not ring true in the context of the overall findings made herein.
Psychological, financial and emotional abuse
The mother submits that the central form of abuse suffered by her at the hands of the father was his control and determination to undermine her relationship with X, and diminish her role as a mother and parent. The mother says the father’s controlling behaviours escalated after she fell pregnant and after X was born.
It is the mother’s evidence that the father would verbally attack her, ignore her, invalidate her feelings as a parent, and that the father would say things such as the following:
You are an irresponsible mother. You are irresponsible. You need to be a proper mother.
You are making X’s development recede, if it goes backwards it’s your fault. You are negligent.
If he gets a cold, it’s on you. If you are negligent then you are at fault for him being sick.
On one occasion, the mother woke to the father taking a photograph of X, and then explained that he was photographing X because “you’ve left him uncovered and it’s cold”.
The father would also continuously blame the mother for X’s behaviours. The mother says that in or about 2018, X would scream and hit her after being disciplined by the father. The father would then say the following:
You need to change your relationship with your son. X’s reaction is your fault and your relationship with X has a deficiency which you need to fix.
The mother further complains that the father would constantly criticize and yell at her in front of X. The mother also says that the father would engage in gas-lighting behaviours which often disorientated and confused her, if she ever disagreed or challenged him. For example, if the mother tried to talk to the father about something which upset her, or even an issue at work, the father would say:
You are emotionally unstable. You’re paranoid. You’re too sensitive. You are responsible.
The mother says that the father also restricted her access to the family car, and the only alternative he provided was for her to purchase her own vehicle, which he knew was financially unrealistic without his support. The mother was rejected for an application for finance by a car dealership, and the father refused to be on the loan and/or provide a written letter to the dealership to confirm that he contributed to the living expenses, to assist the mother with being approved the loan herself.
It is further the mother’s case that the mother was never made fully aware of the father’s full financial circumstances and situation. Additionally, in or about 2016, the father purchased a property in City G Victoria, and the mother was excluded from the purchase and ownership of the property, despite the mother making both financial and non-financial contributions to the parties’ household.
On 28 October 2016, the father says that the mother “lashed out” and aggressively launched X’s high chair towards the father whilst he was holding X. It is the father’s evidence that the chair grazed X’s forehead. The father “immediately walked out with X”[8] and then took him to see the paternal grandmother (a health care worker) that night to “check on him as a precaution”. The mother’s account is that she picked up the chair and “banged it down on the ground cracking the inside plastic base”. She says that the outburst was the result of extreme fatigue and stress.
[8] Apparently taking him around the block to settle him first
The father further says to the Court that the mother was verbally and emotionally abusive, calling the father names like “bitch” and “asshole”. On 18 March 2017, the father says the mother became upset at the father and then aggressively threw car keys at him to which he ducked. The mother denies this.
In or about September 2018, after the mother vacated the parties’ home with X, the mother contacted X’s day care centre to end his enrolment, and was advised that the father instructed that X’s enrolment remain open and be increased from 3 to 5 days. The mother received invoices for an even higher amount and at present, the mother has an outstanding debt of $1,500 in her name to the centre.
Since separation in September 2018, the mother has received no financial assistance from the father.[9] The mother says that shortly after separation, the father would contact the mother’s supervising manager to enquire as to whether the mother had been at work. The father was promptly advised to stop calling.
[9] Mother’s Affidavit filed 31 August 2020 at paragraph 316
There is little doubt that at times, following X’s birth, the mother likely did appear to be volatile and aggressive. The Court however, does not find that the mother did so because of some innate sense of aggression or lack of capacity to act in a socially acceptable manner, but rather that such appearances may be explained by the father’s gas lighting of her and the father’s own actions.
A prime example of this is the allegation that the mother threw a high chair at the father which resulted in the high chair breaking. The Court for reasons which have already been explained, prefers the evidence of the mother to that of the father where the two are in conflict. The Court accepts the mother’s version of events as to what occurred on that day. The mother was upset and she reacted, her reaction resulted in the high chair breaking. She did not throw the chair at X or in X’s direction. The father then in his usual manner of coercion and control, took X and kept him away for the night. He was in effect “teaching the mother a lesson” that if she did not behave in a way that he considered appropriate she would miss out on her child. It was a move designed to manipulate and control.
Father’s concerns about the mother’s parenting
The father complains about the mother’s capacity to parent and meet X’s emotional and physical needs. The father refers to the mother as having “uncontrolled aggression” that she “lashes out” in a manner where she has “thrown objects’, actual physical violence and use of “abusive and/or inappropriate detached methods of behaviour management”[10].
[10] Father’s “Case information” document dated 28 October 2020
Relevant examples of the father’s evidence in respect of his concerns may be summarised as follows:
(a)In September 2018, the mother became “very forceful” about her involvement in the care of X. The mother insisted on feeding dinner to X despite him not responding well as he would throw his food. The mother would then become frustrated and place X in “time out”. The father asserts that the mother was easily frustrated because X responded well to the father as opposed to her.
(b)The mother on one occasion was playing with X on a glass table and only cautioned X to get off the table when the father had seen them. The father asserts that the mother’s behaviour provided mixed messages and confusion for X.
(c)On 25 September 2018, the mother “disrupted” X’s routine by again insisting that she bathe X herself. X again did not respond well to this, and ran to the father. The father says he encouraged X to allow his mother to bathe him. The father says that X did not settle to sleep until after midnight because of this disruption, and as result impacted his morning routine because the father allowed X to sleep in the next morning.
(d)On 26 September 2018, the father says that an argument occurred with the mother because he was unable to drive the mother to work as X was still sleeping. He normally would drop the mother to work then drop X to day-care. Later that day, when the father went to collect X from day-care, the mother had signed X out an hour prior. The father was unable to contact the mother or the maternal family, and at approximately 8pm that day the father presented at Suburb H Police Station to report the incident. He was later advised by police that the mother was safe and they were unable to disclose her location. The father was also advised to seek some legal advice.
The father also says to the Court that the mother has exposed X to threats of violence and illicit substance use through her younger brother, Mr J. The father says that in January 2021, Mr J was arrested for a number of charges relating to possessing an unauthorised prohibited firearm. The father refers to the mother’s actions as “exposure [of X]… to drugs, firearms and violence”. This is a concern that the father maintained throughout the final hearing and it has simply not been borne out on the evidence, that is there is no evidence of the mother acting in a way that exposed X to any dangers that might be associated with her brother’s lifestyle.
While it might be suggested that the examples referred to above are an unfair representation of the father’s concerns, this is not the case. The father’s evidence in chief as well as his oral evidence was filled with similar examples and what might objectively be referred to as petty concerns or complaints, but all the while veiling an intent to undermine the mother, and her parenting capacity.
The example the father gives of the mother “disrupting” X’s routine on 25 September 2018, is a prime example of the father needing to control minute aspects of the mother’s parenting of X and thereafter punishing her for some perceived wrongdoing, in this instance by not driving her to work the following morning (in circumstances where she did not have access to a motor vehicle).
Events surrounding the death of Mother’s Brother
One more concerning behaviours of the father is his conduct in or about July 2021. The events occurred during the adjourned period of the final hearing, and are as follows:
(a)In 2021, the mother’s brother, Mr K, unexpectedly died. The mother, X, and the paternal grandmother, travelled to Town F, NSW in 2021.
(b)In 2021, the mother instructed her solicitors to advise the father of the death, that she had travelled to Town F with X to be with family and to attend to the necessary arrangements, that the scheduled telephone call with X could not occur that night, and that she was unsure when exactly she would return to Sydney.
(c)That same evening, the father responded with an email to the mother’s solicitor which read:
I’m sorry to hear about [Mr K] and please pass my condolences to [Ms Benida] and her family.
I am a bit concerned that there has been a unilateral decision made without my consent to take [X] to [Town F] particularly when he is meant to be in my care tomorrow morning. Your letter addresses my phone call with [X] which I was meant to have with him around the time at which you emailed me, does this mean that [X] will be at the changeover tomorrow at 10am.
I feel for [X]’s plight but I also have concerns about [X], his arrangements and uncommunicated travelled (sic) during a Covid outbreak.
May you please respond as a matter of urgency.
(d)Prior to travelling, the mother contacted Service NSW to check the travel restrictions and was advised that she, her mother, and X, could travel to Town F under compassionate grounds (subject to stay at home orders and a negative covid-19 test). The mother, X, and the paternal grandmother, received a covid-19 test and isolated until 2021, when they received all negative results.
(e)On the evening of 2021, the following text exchange occurred between the parents. This was at the same time that the father was corresponding with the mother’s solicitor:
(i)Mother’s text at 7.36pm
Hi [Mr Ressam]. Further to my solicitors email from this afternoon about my brothers (sic) sudden passing. I will arrange a phone call for you and [X] tomorrow. Just letting you know [X] is well and fine. Will update you when I have more information. [X]
(ii)Father’s text at 7.44pm
Hi [X]
Just noticed your lawyers (sic) email. My condolences about [Mr K] but may you please leave [X] behind since he is supposed to be in my care in the morning?
(iii)Mother’s text at 7.59pm
Hi we are already almost there. I will update you soon and to arrange make up time. Please know [X] is safe and well. Please have understanding for us in this difficult time.
(iv)Father’s text at 8.05pm
I really feel for you [X] but you cannot just up and leave with [X] like that, particularly in the current context.
(v)Mother’s text at 8.08pm
This is a family crisis. I will update you soon.
(vi)Father’s text at 8.20pm
There was no need to disregard me and no need for exposing [X]. I want to see [X] tomorrow.
(f)In 2021, the father continued to message the mother. Shortly prior to 1pm he messaged the mother noting that “X was a no show at the changeover today”, and he also advised that he could collect X from Town F that evening. The mother informed the father shortly prior to 2pm that day, that they were awaiting their covid-19 test results, and in any event it was important that X remained with her during this difficult time. She also reassured the father several times that make-up time would be given to him, and she asked him not to come to Town F to pick X up. At approximately 8.36pm the mother received a message from the father to say that he was in Town F and had sought clearance from police to effect changeover. His text message warned “If you fail to organise this with me, I will be seeking further remedies with the authorities”.
(g)At approximately 9.10pm in 2021, the mother observed the father’s car driving past the paternal grandmother’s home, and he then parked his car opposite the home. The mother called the police and advised that they would send a police car immediately. Another set of police officers attended at the home to question the mother regarding the father’s allegation that she was “acting in breach of Court orders in detaining a child”.
(h)The mother explained the situation to the officers and informed them that the father was also aware of the situation, which they indicated was not what the father had told them. They did a welfare check on X, and the father was asked to leave and return back to Sydney.
(i)In 2021, the father wrote a lengthy email to the mother, setting out his concerns and grievances in respect of the mother’s actions in taking X to Town F after the sudden and unexpected passing of her brother.
(j)In 1, 3, and 6 August 2021, the mother facilitated telephone calls between the father and X.
(k)The mother’s solicitor and the father exchanged numerous correspondence regarding changeover and make-up time between 30 July 2021 and 7 August 2021. The mother proposed that changeover occur on 8 August 2021 at City L and that make up time conclude on 19 August 2021, with time in accordance with orders resuming thereafter. The father it seems insisted on changeover occurring on 7 August 2021 at City M with “normal” handover to be on 21 August 2021.
(l)On 8 August 2021, the mother effected changeover with the father in City L.
(m)The mother’s solicitors again wrote to the father on 16 August 2021, to confirm when X would come back into the mother’s care on 19 August 2021. There was no response. On 19 August 2021, the mother attended Suburb N to receive X but the father did not attend with X. The father then on 20 August 2021, wrote to the mother’s solicitor advising that he could “confirm” that the parties could resume normal changeover on 21 August 2021 “after making up our time with X” and insisting that he had been “blindsided and on the backfoot (sic)” since 2021.
The mother says that she had spent a lot of time responding to the father’s communications and corresponding with her solicitors while she was grieving, preparing a funeral and eulogy. The mother says that this caused not only herself, but also her family, added stress. The Court accepts that the father’s actions did have such an effect on the mother.
It is significantly concerning that the email the father sent to the mother’s solicitor on 23 July 2021 referred to at [91c] above inferred that the mother had somehow done something wrong and that she was placing X in danger. It also clearly ignored the express communication by the mother’s solicitor that the mother did not know when she would be able to return to Sydney, but that the father would be updated as soon as possible. There could not have been any confusion in the father’s mind that X would not be available for changeover at 10am the following day, given that he was in Town F with the mother and that the mother was not in a position to advise when she would return to Sydney. It is also significantly concerning that the father had prior to sending the email to the mother’s solicitor, also communicated with the mother directly via text message, where she had referred to her solicitor’s letter and let the father know that X is well and fine, and that she would arrange a phone call for the following day.
The fact that the mother, at such a stressful and terrible time, had arranged not only for her solicitors to correspond with the father but had herself engaged in direct communication with the father, speaks volumes not only about her commitment to X and the importance to her mind of X’s relationship with the father, but also to her fear and apprehension of the father. Even as she was travelling to Town F from Sydney upon the sudden passing of her brother, she was concerned to appease the father by offering make-up time.
The fact that the father decided to drive to Town F without making any arrangements as to what was to happen to X once he got there after having driven for some 8 hours, his involvement of the police in the face of the communications between him and the mother, and him and the mother’s solicitors, speaks volumes not only of his contempt for the mother’s capacity to make appropriate decisions for X, but his contempt for the mother in general. The father’s actions are not those of a concerned and loving father, or of a sympathetic bystander. They are the actions of a self-absorbed, controlling and coercive man.
In addition, the unreasonable stance of the father in respect of when he would effect changeover after X was returned to his care, and lack of communication about his reasons for doing so or any notification of disagreement with what make-up time might have been owed or might have been appropriate, shows his obstinate and inflexible attitude in respect of co-parenting.
Child’s Behaviours
The mother gives detailed and lengthy evidence of X’s behaviours following X’s return into her care following time with the father. Such behaviours include:
(a)Punching the mother to the side of the head;
(b)Spitting in the mother’s face;
(c)Throwing things at the mother and the maternal grandmother;
(d)Attempting to strangle the mother, pulling her hair and pushing her head against a wall;
(e)Picking up a knife and threatening to cut the mother’s throat;
(f)Punching the mother in the stomach; and
(g)Hitting and kicking the mother.
During such times as described above, X has also said the following to the mother:
•This house is my mum’s house not [X]’s house… That’s what my dad tells me.
•Dad had to call the police on you because you always hurt me. Dad says my mum is a bully. My dad had to call the judge because you’re a bully.
•My dad says you’re a bully… my dad says you’re a bad person… my dad says he wants me to stay with him forever… only my dad loves me I am only important to my dad.
•You’re dangerous and stupid. I want to live in a mountain far far away from you so I can never see you again.
•I hate you guys, I’ll be telling you every night.
•I will kill you… When I get confidence I’ll kill you with a knife.
•I don’t love you because you have yellow skin, I am allergic to your skin, because it’s light. You have light skin.
•Mummy I don’t like you you’re a monster and you’re nothing, you’re nothing, you’re nothing. Dumb mum, dumb, mum.
Discussions between the parties have been occurring since 2018 about obtaining a behavioural assessment of X. The father stated in cross-examination that these behavioural issues were linked to the conflict between the parents. In his evidence in chief however, the father suggests that the behaviours are linked to the separation of X from his father, that is the “trauma of being suddenly cut off from a person with whom you have a very deep and affectionate relationship with…”.[11]
[11] Father’s affidavit filed 29 May 2020 at [147]
It is clear from the father’s evidence as a whole that he either does not believe that X exhibits such behaviours when he is with the mother or that if he does, then the father is of the view that the mother is the reason as to why X behaves in that manner.[12]
[12] See cross-examination of father on 29 October 2020, in particular T:26-27
The father has steadfastly denied that X misbehaves in a similar manner while he is with him, and he has steadfastly denied that he has said anything to X or in X’s presence which would incite or encourage him to behave in this manner.[13]
[13] Father’s “Case information” document dated 28 October 2020
It is well established that the rule in Browne v Dunn[14] does not apply where a witness is on notice that the witness’s version of events is in contest. That notice may come from the pleadings or the other side’s evidence, the other side’s opening, or it may even come from the general manner in which the case is conducted. In general, however, this exception to the rule should only operate where the issue is a fairly clear and obvious one.[15] In the present circumstances, the father was on notice as to the evidence in the mother’s case about X’s behaviour post the parties’ separation and about the father’s behaviour towards X while the parties lived together.
[14] Browne & Dunn (1894) 6 R 67
[15] In the Marriage of LC and TC (1998) 23 Fam LR 75 at [38]; See also Conroy & Penner [2022] FedCFamC1A 39 at [23]
As such, while it is not necessary to cross-examine to meet the rule in Browne & Dunn, if a witness is not cross-examined and their evidence is not challenged in any way, this does not mean that their evidence must be accepted.[16] Unchallenged evidence should prima facie be accepted by a tribunal of fact. However, the Court is not bound to accept such evidence as there may be circumstances in which the evidence may be rejected or subject to criticism or doubt, such as where it is illogical or inherently inconsistent.[17]
[16] Taupau v HVAC Constructions (Qld) Pty Ltd [2012] NSWCA 293 at [130]
[17] Hull v Thompson [2001] NSWCA 359 at [21]
There are no such circumstances in the present case, that is, there is no justifiable basis as to why the mother’s evidence about X’s behaviours and about the father’s behaviour towards X (prior to separation) should not be accepted.
The only reasonable inference to be drawn from a failure to cross-examine, is that the cross-examiner had instructions that the witness’ evidence was probably right or that a calculated decision (perhaps influenced by the first point) was taken to try to argue the matter without attacking the evidence.[18]
[18] Hull & Thompson at [25] said in the context of an expert’s report, however, there is no reason as to why the same principles would not apply to evidence of lay witnesses
As such, the Court accepts the mother’s evidence about the behaviours which X exhibits when he is returned to her care after spending time with the father, and that over time those behaviours have not only become progressively worse but that it takes X a longer time to cease such behaviours and return to a non-distressed and non-aggressive state. The Court also accepts that X does not exhibit similar behaviours upon return to the mother’s care from pre-school.
Father’s Lack of Engagement with orders concerning therapy and behavioural assessment of child
On 30 October 2020, following the first three days of the trial, the parties approached the Court for orders to be made by consent in respect of family therapy and a behaviour assessment of X. Orders were made for the parties to undertake family therapy and for that purpose provided machinery provisions requiring the parties to do certain things “as soon as practicable” and to obtain a referral for the purposes of a behavioural assessment of X. Likewise, there were machinery provisions requiring the parties to take certain steps for the purposes of the behavioural assessment taking place.
On 24 March 2021, the mother filed an Application in a Case due to the father’s non-compliance with the consent orders made on 30 October 2020. Further orders were subsequently made on 7 June 2021, once again by consent, for the father to do all things necessary to effect the order for family therapy and for both parties to attend an appointment for behavioural assessment of X.
The behavioural assessment subsequently occurred on 16 June 2021 and a report was produced. That report is not before the Court. [19]
[19] The orders made on 7 June 2021 expressly provide that neither party is to seek to obtain or rely upon the behavioural assessment report for the purposes of the substantive proceedings
There has been no family therapy to date.
The lack of compliance with orders was explored with the father in cross-examination. The evidence given by the father by way of explanation for his delay in respect of the orders was that:
(a)He needed time to read the material provided which he received in November 2020 and which took a week or two to read – this does not explain a 10 month delay;
(b)He had financial constraints which were not articulated – this does not explain the delay;
(c)He needed to get legal advice about the terms of the agreement for family therapy – this is incredulous and does not explain the delay, indeed he never sought any advice; and
(d)X was hospitalised – this does not explain the delay, X was in hospital for one day in November 2020 and was discharged on the same day.
It is clear from the father’s evidence that he was less than honest in his explanations as to why the behavioural assessment and family therapy did not occur in accordance with the 30 October 2020 orders, and why family therapy had not commenced by the time the trial resumed on 13 September 2021.
The father’s explanations are not satisfactory and his actions in not ensuring that the family therapy and behavioural assessment occurred after the interim orders were made again show a lack of insight into the needs of X, an inability or incapacity to meet the needs of X, and an inability or incapacity to co-parent with the mother.
Other relevant matters
There has been continuous and significant dispute between the parties regarding almost all aspects of parenting, including which pre-school X is to attend, medical treatment, cultural requirements, parenting styles, and the time which X spends with extended family members.
In choosing a pre-school the parties exchanged numerous emails, with the father suggesting X attend a number of pre-schools which were all unsuitable, as they either did not have availability, or due to excessive travel they would create unnecessary hardship for the mother.
When the mother suggested a possible solution, being O Preschool, which was located approximately half-way between both parents, and which had availability on consecutive days, the father did not respond. Instead, he continued to suggest alternative pre-schools, even after X had begun to attend O Preschool and positive feedback about his development had been received by the mother, and subsequently provided to the father.
The father was invited to attend the pre-school to meet the staff and pick-up X. Again, instead of taking up the opportunity to engage in a meaningful manner, the father instead created an altercation with the pre-school staff which ultimately ended in him being asked to leave the premises.
This is but one of many examples which show the father’s poor attitude toward the mother and his inability to co-parent in a manner that is child focused.
The father has made a number of reports to the Department of Communities and Justice (as it is now known) (“DCJ”) as well as the police, in respect of matters which objectively did not warrant such reports being made. An example, from the father’s evidence, of one such matter being reported to DCJ is as follows:[20]
[20] Father’s affidavit filed 29 May 2020, paragraphs 140-146.
140. Following on from the upper respiratory infection discussed in 112 above, [X] (on 12 April 2020) called an ambulance to take [X] to the hospital for having a low temperature "35C", then high temperature "38.7C", shortness of breath, and vomiting. [X] was discharged that afternoon with no clinical concerns sustained (an x-ray and blood sample did confirm that he had Mycoplasma Pneumonia though).
141. On 13 April 2020, [X] texted me saying that she had taken [X] back to the hospital for the same reasons as above. I called the hospital at 03:30 am and I was informed that they had agreed to keep [X] in hospital on fluids but had no real clinical concerns. The nurse said he would probably go home that afternoon.
142. On both days, I went to the hospital to see [X], I neither witnessed him vomit, nor did I see any puke. Each time, I would receive a text message to the effect, "[X] has just vomited again", after leaving his room. On the 13th I kept getting updates about [X] not being able to hold anything down including water.
143. On 14 April 2020 at 08:00 am, I called the hospital and I spoke to [Ms P] who informed me that [X] would be discharged with me that afternoon. I kept getting the vomiting updates including a text in the afternoon speculating on whether [X] would be discharged or if he'd be kept overnight.
144. That afternoon, [X] was discharged with me. As soon as we walked out, [X] asked for water. I gave him his water bottle and he drank a quarter of it with no problem.
144.1. He was hungry so I also gave him a yoghurt sachet.
144.2. we headed to "[Q]’s house", where I left him with my mother and [Ms R] whilst I dashed to the supermarket. When he was offered dinner, [X] refused and told [Ms R] and my mother that, "mummy said I need to vomit", and told them that "she put her finger in my mouth".
144.3. [X] repeated this to me again when we were going to the change-over
145. On the follow-up call from the hospital 15 April 2020, I informed the nurse of what [X] had revealed. I then asked if any of the hospital staff had actually witnessed [X] vomit. The nurse confirmed that no-one had actually witness it and she would note it for future reference.
146. I was very disturbed by this, and upon discussing this with my counsellor, he recommended that/ report this to Child Protection Services. I did.
The father has on his own admission, caused the police to conduct welfare checks on X whilst he is in the mother’s care, including when X and the mother were staying at the domestic violence shelter when the mother left the family home and also when X was with the mother at Town F following the death of X’s uncle.
What must a little child think if the police keep knocking on his mother’s door to see that he is ok? These matters were explored, once again at some length, with the family report writer Ms S (“Ms S”). There is no doubt that such welfare checks have had a negative impact on X, his relationship with the mother and his trust of the mother.
The father’s answers in cross-examination lead the Court to find that the father does not value the mother’s involvement in X’s life. The Court does not accept that the father either has legitimate, or indeed genuine, concerns or fears for X’s safety while in the mother’s care, but rather finds that these actions by the father undermine the child’s relationship with the mother.
Expert Evidence
In evidence before the Court is a Family Report prepared by Ms S dated February 2022. Ms S was cross-examined at the final hearing.
The Family Report, identified that issues in dispute and issues identified during the assessment were couched in the following terms:
•The most appropriate arrangements for [X] to live with and spend time with each parent.
•The most appropriate arrangement for parental responsibility for [X].
Identified by the Parents
•Whether or not [X] is at unacceptable risk of harm living with [Ms Benida] due to her alleged emotional instability.
Identified by the Family Consultant
•The impact of ongoing conflict on [X]’s emotional and psychological well-being.
•Whether or not [Mr Ressam] and [Ms Benida] would have a co-parenting relationship that would support [X] living with each of them equally.
It is unclear why the issues which were identified by Ms S did not include whether or not X is at an unacceptable risk of harm spending time with the father due to his emotional manipulation of X, by speaking badly of the mother to X, and by telling X that he is sad when X is with the mother.
At [88] the Family Report reads:
[Ms Benida] and [Ms Benida] express concern that [X] is not coping with the number of changeovers and different routines between [Ms Benida]’s house and [Mr Ressam]’s house. It is outside the scope of this assessment to fully understand the aetiology of [X]’s reported behaviour. However, a child of three years is learning their space within the world, especially within their family and increasing in independence. As such, they can display challenging behaviours as they test this growing independence. Behaviours can include (but are not limited to) a feisty attitude (for example yelling when unable to get their own way), resisting requests, refusals, outbursts and tantrums. The behaviour displayed by [X] could be indicative of a normal developmental stage experienced by children of his age. Alternatively, it could be an indication that he is experiencing increased stress as he adjusts to a new routine of living and spending time with each parent and adjusting to different parenting styles and routines. Another possible explanation could be the impact of the conflict and the alleged denigration of each parent by the other, which may cause or exacerbate negative behaviour in an undesirable way. This is something that [X] is unlikely to adjust to over time. The potential negative impact of conflict on a child’s well-being is discussed further below.
(emphasis added)
The Family Report made a number of recommendations, namely:
(a)That X live with the mother and spend time with the father, prior to starting school in week 1 from Saturday morning to Monday afternoon and in week 2 from Tuesday afternoon to Thursday afternoon; and after he commences school each alternate weekend from Thursday after school to Tuesday before school (provided this is practical);
(b)That the parents share parental responsibility;
(c)That there be a restraint on physical punishments;
(d)That the mother attend an anger management program (if there are concerns regarding her anger);
(e)That the father attend a men’s behaviour change programme if there are concerns he is continuing to monitor the mother’s movements; and
(f)That there be non-denigration restrains upon both parents.
Prior to Ms S being cross-examined, she was provided with copies of the parties’ affidavits which had not been available prior to the Family Report being completed. Ms S was also updated in respect of the oral evidence given at trial. There was a significant shift in the recommendations of the expert, such that ultimately Ms S was of the opinion that the risks to X in continuing to spend time with his father far outweighed the risks to him of not spending any time with the father. The ultimate recommendation was that X should spend no time with the father.
The mother was visibly surprised and shaken by the recommendations Ms S made when she gave her oral evidence.
The possible explanations for X’s behaviour were carefully explored with Ms S in cross-examination as were the risks which were identified in varying scenarios of X living with the father, X living with the mother, X spending significant and substantial time with the father, X spending limited and/or supervised time with the father, and X spending no time with the father.
It was Ms S’s opinion that if the Court accepted X’s behaviours were as reported by the mother, then it would be in X’s best interest that he no longer spend any time with the father.
RELEVANT CONSIDERATIONS AND DETERMINATION
Child’s views and nature of relationships
X has a close and loving relationship with the mother, she has been his primary care giver for most of his life. It is an important and meaningful relationship to X.
The evidence supports a finding that X wants to spend time with the father and that he has an attachment to the father. However, this must be understood in the context of X’s behaviours, his young age and the overall findings made herein. X’s relationship with the father is an important one, but not meaningful in the requisite sense as explained throughout these reasons for judgment.
That X refers to the father’s home as “X’s home” coupled with X’s comments that for example, his mother has different coloured skin to him and that he is allergic to it, is quite informative of the level of emotional manipulation that X has been subjected to and speaks of an unhealthy and dangerous relationship with the father.
X also appears to have close and loving relationships with the parties’ respective extended families.
Parental involvement in decision making and Parental Responsibility
There has been ongoing conflict between the parents in respect of decisions which need to be made. The father has time and time again criticised the mother for decisions she has made or which she intends to make, and he has likewise criticised the mother for her lack of consultation with the father in the making of those decisions.
Even where there has been agreement about a particular course, such as for example the course agreed upon in October 2020 for family therapy and a behavioural assessment for X, the father has obfuscated and delayed.
It is unlikely that the father will show a level of mature and co-operative involvement in the decision making required for X’s future or that he will make decisions which best serve X.
The fact is that the parties are at constant logger-heads and the only way that things seem to move forward is if one of the parents makes the decision to the exclusion of the other, which is what has at times occurred. This can be a dangerous path where there are inconsistent decisions being made by the parents and they affect a child. It can also be a dangerous path if there is disagreement leading to inaction where action is needed or warranted.
In such circumstances it is important there the decisions made are consistent and warranted, and that the decision maker has the capacity and authority to not only make the decisions, but that those decisions are not undermined or capable of being reversed.
In the present circumstances, the presumption of equal shared parental responsibility has been rebutted, not only due there being reasonable grounds to believe that the father has engaged in family violence, but also because on the evidence it would not be in X’s best interest for the parents to have equal shared parental responsibility.
In all of the circumstances of this case, an order for the mother to have sole parental responsibility is an order that is appropriate and in X’s best interest.
Likely effect of change
The likely effect of change on X of any order which would see his time with the father reduced or coming to a standstill is expected to be negative and significant. Such an order would also involve for X, the loss of the extended paternal family. This itself will likely have negative effects on X. However, as noted, these negative impacts will be outweighed by the identified risks if X continues behaving as he did at the conclusion of the evidence in September 2021.
Capacity of parents to provide for child’s needs, and Attitude to child and to responsibilities of parenthood
These reasons for judgment identify in some detail the father’s lack of capacity to provide for X’s needs, his self-focus and his bad attitude towards the mother and the responsibilities of parenthood.
At the conclusion of the third day of trial on 30 October 2020, the evidence of the father seemed to indicate:
(1)That he had taken on-board the possibility of innocent explanations for incidents which he considered concerning for X while in the mother’s care;
(2)That he had acknowledged he had a role to play in addressing X’s behaviours; and
(3)That there was a need to reduce conflict between him and the mother and to improve communications.
The father’s actions, or rather lack thereof in respect of these matters, between the 30 October 2020 and the resumption of the hearing on 13 September 2021, support a finding that the father will not in future moderate his behaviour or take responsibility for his actions, in a manner that serves X’s best interests and meets X’s needs.
Family violence
As noted, it is more likely than not that the father perpetrated family violence. The Court has already identified some of the father’s behaviours as gas lighting, and of a coercive and controlling nature. Such behaviours undermine the child’s relationship with the mother.
Lifestyle, culture and tradition
The father’s Country C heritage is an important cultural factor. Without the presence of the father or the paternal family in his life, X will miss out on learning the Country C language, he will miss out on learning important cultural and familial traditions and he will miss out on important relationships with his paternal family. It is a factor which weighs in favour of orders that X spend time with the father, but does not of itself significantly tip the balance.
Other relevant matters
The various concerns the father has in respect of X’s safety while in the mother’s care and with regards to the maternal family, are simply not borne out on the evidence. While the mother did concede that she would agree to an order restraining her from permitting X to be alone with her brother, the making of such an order is not warranted on the evidence.
Benefit of meaningful relationship and need to protect
One of the most difficult aspects of these proceedings is determining why X behaves the way that he does. This was a matter that was explored at some length with Ms S.
Ms S gives evidence that children tend to report what they hear. While Ms S purported to opine that the behaviour likely resulted from the father’s interactions with X, precisely what those interactions are is not the subject of any evidence. The father was not cross-examined on this issue.
It is instructive to consider the father’s complaints about the mother’s parenting in order to understand his attitude towards the mother and to understand the reasons why X is acting out in the manner that he is. There is little doubt, given the father’s oral evidence and presentation in Court, as well as the evidence of what X says to the mother and how he behaves after spending time with the father, that the father continues to hold similar views of the mother as he did at the time of writing his affidavit, and that he shares such views with X, despite his denials that he does so.
The child’s behaviour, including the way X speaks to the mother and the things that he says to the mother, support a finding that he does so because of the father’s treatment of him and the father’s attitude to the mother.
The Court accepts the submissions made on behalf of the ICL and the mother, that the causes of X’s misbehaviours are best explained by the father’s treatment of X, the father’s attitude to the mother and his undermining X’s relationship with the mother (whether active or passive).
In those circumstances, the Court accepts the opinion of Ms S as to the risks that exist for X if he is to spend time with the father. The Court accepts that those risks cannot be ameliorated or appropriately minimised, even with time between X and the father being significantly reduced, and/or supervised, or indeed by an order that X live with the father and spend time with the mother.
X’s behaviour is very concerning. There is no doubt that an order for X to spend no time with the father will have a significant impact on him. Ms S explained the likely effects on X of not spending time with the father, and the risks associated with that. However, balancing those risks against the risks to X if he is to continue on his current trajectory of behavioural issues and manipulation at the hands of the father, are much more serious and likely to have a long term impact.
Conclusion
In the end the Court concludes that it is in X’s best interest that there be an order that he spend no time with the father, and that the mother have sole parental responsibility.
Such orders are supported by the findings made herein.
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
I certify that the preceding one hundred and fifty-nine (159) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 8 July 2022
0
8
0