Sagar & Janushan (No 2)
[2023] FedCFamC1F 369
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sagar & Janushan (No 2) [2023] FedCFamC1F 369
File number(s): PAC 5950 of 2019 Judgment of: HANNAM J Date of judgment: 15 May 2023 Catchwords: FAMILY LAW – FINAL PARENTING – Where the father poses an unacceptable risk of harm to the child – Where the child would not receive the benefit of a meaningful relationship with the father – Where the ICL seeks orders supported by the mother –Where the expert identified deficits in the father’s parenting capacity – Where the child is at risk of parentification by the father – Where I am satisfied that the mother and child have been subjected to coercive and controlling family violence perpetrated by the father – Where the father unilaterally exercised control over the movements of the mother and the child – Where the father exercised control over the mother’s ability to obtain employment – Where the father unreasonably prevented the mother from exercising her financial autonomy and unreasonably withheld her financial support – Where I am satisfied that the actions of the father amounts to emotional abuse to the child – The mother have sole parental responsibility for the child Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CC(2), 60CC(3) Cases cited: Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) 37 FamLR 518
McCall & Clark (2009) FLC 93-405; 41 FamLR 483; [2009] FamCAFC 92
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Division: Division 1 First Instance Number of paragraphs: 318 Date of last submissions: 15 February 2023 Date of hearing: 13-15 February 2023 Place: Parramatta Counsel for the Applicant: Mr Hill Solicitor for the Applicant: Swifte Law Counsel for the Respondent: Ms Ito Solicitor for the Respondent: Jacqui Griffin Mobile Solicitor Counsel for the Independent Children's Lawyer: Ms Dart Solicitor for the Independent Children's Lawyer: Matthews Folbigg Pty Ltd ORDERS
PAC 5950 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SAGAR
Applicant
AND: MR JANUSHAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HANNAM J
DATE OF ORDER:
15 MAY 2023
THE COURT ORDERS THAT:
1.The Mother has sole parental responsibility for the child X born … 2014 (“X”).
2.X is to live with the Mother.
3.X is to spend time with the Father on the first Saturday of March, June, September and December each calendar year for a period of two hours on each occasion and this time is to take place at the C Contact Service or other supervised contact service agreed between the parties (“the contact service”). To facilitate that time:
(a)The Mother and the Father shall each contact the contact service within seven days of the date of these orders to undertake any necessary assessment;
(b)The Mother and the Father shall comply with the policies and directions of the contact service staff including any direction to attend at an alternate time if the Saturdays specified in this order are not available;
(c)The Father shall be responsible for the cost of the supervision;
(d)The father shall notify the contact service and the Mother by email not less than 21 days prior to his scheduled time with X and confirm his attendance at the contact service. In the event that email notice is not given then the time shall not proceed.
4.The Mother shall provide to the Father X's school reports within seven days of receiving any such report.
5.The Mother is at liberty to remove X from the Commonwealth of Australia for the purpose of taking a holiday.
6.To facilitate Order 5 pursuant to Section 11(1)(b)(i) and Section 11(1)(b)(ii) of the Australian Passports Act 2005 (Cth) X is permitted to travel internationally without the need for the consent of the father to be provided for the issue of her passport. The Mother is the only person with 'parental responsibility' for X for the purpose of applying for, and being issued with, an Australian passport for X.
7.The Father is restrained from:
(a)Denigrating the Mother or any member of the Mother's household in the presence or hearing of X;
(b)Speaking with X about the court proceedings or any allegations raised in the proceedings;
(c)Discussing with X family law matters including X's living arrangements.
8.The Mother and the Father are to ensure that they forthwith provide the other parent with a current telephone number and email address and that they notify the other parent of any change to their telephone number and/or email address within seven days.
9.The Mother is to facilitate X's attendance with psychologist Ms C at the earliest available time and then as recommended by Ms C. In the event that Ms C is not available then the mother is to facilitate X’s attendance with a psychologist recommended by the Independent Children's Lawyer (“ICL”).
10.The Family Reports dated 23 April 2021 and 24 January 2023 and a copy of these Reasons for Judgment shall be provided by the ICL to Ms C or other psychologist.
11.Within 7 days of the date of these orders the mother is to facilitate X's attendance with the ICL for the purpose of explaining the final orders.
12.Pursuant to 68B of the Family Law Act 1975 (Cth) (“the Act”), the Father is injuncted and restrained from:
(a)Assaulting, molesting, harassing approaching or communicating with X or the Mother except as provided for in these orders
(b)entering or coming within 100 metres of:
(i)The place of residence of the mother and X; and
(ii)Any school or educational institution attended by X.
13.Until further order MR JANUSHAN born … 1982 his servants and/or agents are hereby restrained by injunction and, irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the child X born … 2014 from the Commonwealth of Australia; AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist until the Court orders its removal.
14.The Mother shall have sole responsibility to make any application relevant for
(a)X to become an Australian citizen
(b)The renewal of X's Country B passport.
Note: The form of the order is subject to the entry in the Court’s records.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION
These proceedings concern the future parenting arrangements for the parties’ only child, a little girl aged nine (“the child”).
The parties (“the mother” and “the father” or “the parents” collectively) were married in Country B in 2013 and subsequently lived for periods of time overseas and in Australia. The marriage came to an end in 2019 at a time when the father had unilaterally taken the child into his care in Australia.
After proceedings were initiated, there have been many differing parenting arrangements for the child. Throughout the proceedings, the father has indicated an intention to relocate permanently to Country B on numerous occasions and subsequently changed his mind.
Since August 2021 the child has lived with the mother who has also had sole parental responsibility for the child and varying orders have been made for the child’s time and communication with the father.
At final hearing the father no longer sought to relocate the child’s home to Country B but still maintained a proposal that the child live with him and spend defined time with the mother on weekends and during school holidays and proposed that the parents equally share parental responsibility for the child. It is the father’s case that such orders are in the child’s best interests.
It is the case of the mother and ICL that the father poses an unacceptable risk of harm to the child arising from psychological abuse and being subjected to and exposed to family violence if orders are made as the father proposes and that this risk outweighs the benefit to the child of having a meaningful relationship with the father. The ICL and mother propose that the child have supervised contact with the father on four occasions each year for the purposes of assisting the child in understanding her identity.
The question for me to determine is whether it is proper to make orders as proposed by the father or the mother and ICL, having regard to the best interests of the child as the paramount consideration.
BACKGROUND
Events prior to the commencement of proceedings
The mother, who is 39, and the father, who is 40, were both born in Country B and married in that country in early 2013. There is no dispute between the parties that their marriage was arranged between the extended paternal and maternal families in accordance with both parents’ cultural traditions.
It is the mother’s case that the father was highly controlling of her throughout the marriage and in particular forced her (and later the child) to relocate on numerous occasions within Australia and to return to Country B from time to time.
In November 2013 the parents were granted Australian permanent residency visas. The father had been the primary applicant and the mother was the secondary applicant. It would appear that the visas were granted on the condition that the parents were to enter Australia within six months of being granted. The visas were valid for five years which meant that the parties were required to obtain a Resident Return Visa if their visa expired while they were outside of Australia.
The parents entered Australia in January 2014 when the mother was pregnant with the child. The mother spent around one week in Australia before returning to Country B where she moved to live with the father’s family and commenced work in a professional capacity. It is the mother’s case that the father required her to move back to Country B and that there was no discussion with her about the matter. The father who remained in Australia made arrangements to live in shared accommodation and found a casual contract job.
The child was born in early 2014 in Country B and the mother took maternity leave from her employment so that she could care for her. In May 2014 the father returned to Country B to visit the mother and child. During this time he arranged for a passport and applied for an Australian visa for the child. He then returned to Australia in June 2014.
In August 2014 the father returned to Country B and lived together with the mother and child in his family home with the paternal grandparents. The mother returned to work in around December 2014 and as the father was also working, the paternal grandparents assisted the parents with the day to day care of the child.
In late 2015 the parents and child made a short trip to Australia for a week as the child’s Australian visa had been granted and it was a condition that she enter Australia. The family then returned to Country B again and both parents recommenced employment in Country B. Subsequently, in late 2015 the father informed the mother that he was moving to Melbourne and left soon after without further discussion. For a short time, the mother and child remained living in Country B.
In early 2016 the mother was offered employment in Sydney. The father then rented premises in Sydney and the mother and child arrived in Sydney in early 2016. The mother commenced her new job in mid- 2016 and the father obtained employment in Sydney soon after.
From the time both the mother and the father were working, the child began attending day-care. There were arguments between the parents at this time due to financial pressures and concerns held by the father about the health of the child, who had picked up the common cold at day-care. The mother deposes that during an argument the father yelled at her and said that she should quit her job and stay at home to look after the child.
After this argument, in July 2016, on the advice of their respective families, the family made a short trip to Country B to resolve their marital issues. While in Country B, the father asserted that he wanted the mother to remain with the child in Country B while he returned to Australia to work but it was subsequently agreed that the whole family would return to Australia. The mother maintains that, in keeping with her contentions concerning the father’s control, he insisted that if issues of a similar kind concerning the child persisted, she was to cease working without discussion. The father takes issue with the mother’s contentions and claims that the mother promised to remain home to take care of the child and family and would not resume work.
In August 2016 the parents and the child returned to Australia, but continued to argue about the child’s health. In September 2016 the mother resigned from her employment to stay home and care for the child.
In October 2016 the father unilaterally made a decision that the family was to return to live in Country B permanently. He sold all of the parents’ possessions and closed their joint bank account and the family returned to Country B in early November 2016. The mother maintains that the father did not consult with her about the decision to relocate and although she felt her whole life was being uprooted again, she had no choice but to go along with his plans.
In January 2017 the father moved to live in Australia once again, while the mother and child remained living with the paternal family in Country B. After several months, the father telephoned the mother and informed her that he wanted her and the child to join him in City D where he had found a job.
In July or August 2017 the mother and child, together with the paternal grandparents moved to live with the father in City D.
In January 2018 the paternal grandparents returned to Country B.
It is the mother’s case that when she came to live in City D the father controlled virtually all aspects of her life. In particular, he did not permit her to work even though he unilaterally enrolled the child in pre-school. According to the father, the mother looked for a job herself. The circumstances surrounding the conduct of each of the parties during this period is a matter of considerable dispute to which I will return.
In May or June 2018 the family relocated again, this time moving to Sydney. The mother says that the father simply decided that the family were to move and that although she opposed this move on the basis that the instability was not good for the child, the father ignored her complaints. The father denies that the mother objected to moving and maintains that she was happy to relocate to Sydney.
In July 2018 the father who had become increasingly worried about his own health informed the mother that the family would be travelling to Country B the following day, so that he could attend a medical appointment. The mother was unaware at this time, that he had only booked one-way tickets. It is her case that once in Country B, the father declined to discuss when the family would return to Australia. The father then returned to live in Australia without the mother and child, who remained in Country B with the paternal family. The father maintains that he left the family in Country B due to a “financial crisis”.
In around August 2018 the mother was offered employment with a private company in Australia. She maintains that the father did not allow her and the child to move to Australia and as a result she subsequently declined the offer of employment. The father deposes that the mother was not prepared to live in Australia “as a family” so they mutually decided that she would continue to live in Country B. This significant matter in dispute between the parties is a matter to which I will return.
In October 2018 the child commenced school in Country B. The mother deposes that the father and paternal grandparents decided which school the child would attend and paid the necessary fees without her input. The mother deposes that the child was a year and half behind the other students at school and for this reason struggled with the classes.
The father returned to Country B in December 2018 and took the child away with him for a few days without discussing the matter with the mother. According to the father’s evidence, he first became aware at around this time, that the child had been experiencing difficulties when separated from him, including physical symptoms of “tummy pains”. The mother deposes that the child was clingy when she returned from being away from her as she and the child had previously never separated for this period of time. Later in that month, the father informed the mother that he was returning to live in Australia with the child and paternal grandmother and the mother deposes to having no ability to prevent the father from doing this. The father informed the mother that she could not come to Australia as she did not have a visa, but assured her that he would obtain one for her and she would be able to join the family within two weeks.
The father, child and paternal grandmother moved to Australia in January 2019 and lived in a suburb in Sydney where the child was enrolled in a local school. When the father and child (then aged five) first relocated to Australia, the father made arrangements for the child to speak with the mother on the phone each day.
From March 2019 following an argument between the parents, the father ceased facilitating the child’s phone calls with the mother and told the mother that the child did not wish to speak with her. From late March 2019 the father ceased answering the mother’s calls altogether. The mother’s attempts to make contact with the paternal grandmother who was living with the father and the child in Australia at the time were also unsuccessful as the paternal grandmother failed to answer the mother’s calls.
It is the father’s case that the child was unwilling to engage with the mother as she was traumatised by the mother having assaulted her, a matter the child revealed to him in about May 2019. The father also claims that the mother decided not to pursue her visa for Australia and asked him to destroy the application. The mother denies that she ever expressed an unwillingness to return to Australia and ultimately was required to take her own steps to apply for a visa.
In April 2019 the mother’s visa to return to Australia was granted, but the father who had made the arrangements for this visa did not inform the mother that it had been granted. In text message communications between the parties in May and August 2019, the mother asked the father about the progress of her visa application. The tenor of the father’s responses was that she had previously indicated that she did not wish to come to Australia (with the implication that she would thus no longer need a visa). He also indicated that difficulties with the mother’s visa were matters beyond his control.
By mid-September 2019 the mother realised that the father was not going to assist her to obtain a visa to return to Australia so she contacted a migration agency herself. In November 2019 this agency informed the mother that she had been granted a visa in April of that year which was due to expire in April 2020. The mother then immediately made arrangements to travel to Australia.
The mother emailed the father on 12 and 14 November 2019 to inform him that she was returning to Australia and to request that he pick her up from the airport. The mother did not receive a response to either email.
The mother arrived in Australia in November 2019. Upon arrival, she called the father who then informed her that she was not welcome to attend at the home in which they had previously lived as a family (“the former family home”) The mother travelled from the airport by taxi to the former family home where the father refused to open the door and contacted police, who requested that she leave the property. While the police were at the home, the father informed the mother that she could email him to arrange to see the child. Until this time, the mother had believed that the marriage was still intact.
The following day, the mother emailed the father requesting to see the child. She then attended at a local police station seeking advice and while at the station an officer called the father on the mother’s behalf and arranged for the child to spend time with her at a local park later that evening. When the mother arrived at the park the father encouraged the child to speak to the mother but after 10 minutes ended the visit.
The parents had email contact in the ensuing days and on 21 November 2019 the father agreed to another request for the mother to see the child two days later. On 23 November 2019 the father cancelled the visit due to the child’s alleged ill-health and as he believed that the child needed to see a psychiatrist (before resuming contact with the mother). The mother again attempted to make arrangements for the child to spend time with her in the future but the father informed her that he would not be making any arrangements for the child to see her, except through proper legal channels.
Events following institution of proceedings and court events in the Federal Circuit Court
On 29 November 2019 the mother commenced proceedings by way of an Initiating Application in the Federal Circuit Court (as it was then known) seeking that the parents have equal shared parental responsibility for the child, that the child live with her and spend time with the father as agreed between the parties.
At the first court event on 18 December 2019 orders were made placing the child on the Airport Watchlist and appointing an ICL. The proceedings were also listed for interim hearing.
Following an interim hearing, orders were made on 27 March 2020 (“the March 2020 orders”) that if the father remains living in Australia then the child is to live with him and spend time with the mother in a graduating regime, reaching an endpoint of nine hours each Saturday and Wednesday noting that the mother was to facilitate the child attending school each Wednesday. The mother was also to contact the child by video call each Tuesday and Thursday afternoon. Orders were also made for the parents to attend a Parenting after Separation course and for the child to attend upon a named psychologist. Various injunctions were made restraining the parents from discussing the proceedings in the presence of the child, denigrating the other party and physically chastising the child and the father was restrained from being present during the child’s time with the mother. According to the father’s affidavit, at this court event he requested the Court to “make us reunite as a family again”.
The mother began experiencing issues with changeovers soon after the new parenting arrangement commenced pursuant to the March 2020 orders. According to her affidavit, the father arrived to changeovers late, did not encourage the child to move into her care, began to film changeovers and sent copies of the recordings to the mother’s lawyer and the chambers of the docket Judge. The mother deposes to a particular changeover in May 2020 when the child would not get out of the car and when the mother attempted to encourage the child to do so, the father pulled her away and sent the child to the car before calling the police. Police attended changeover around 30 minutes later and advised the mother that they would facilitate changeover at the police station the following day.
On 19 June 2020 orders were made restraining the parents from making any recordings of the child for the purpose of the court proceedings. On that day, orders were also made for the parents and the child to attend upon a Family Consultant (as Court Child Experts were then known) for the assessment for a Family Report.
On 3 July 2020 the father requested that the mother’s solicitor provide him with a copy of the documents which had been submitted to the Federal Police to support the child being placed on the Airport Watchlist. It would appear that the father then attempted to have the child’s name removed from that list. The mother deposes that on 17 July 2020, she received a text message from a number which she did not recognise, purportedly advising her that the “family law watch list has been successfully cleared”. It was subsequently confirmed by the Federal Police that the child’s name remained on the Airport Watchlist.
On 3 August 2020 the father filed an urgent Application in a Proceeding seeking that the child’s name be removed from the Airport Watchlist and that he be at liberty to travel with the child to Country B for three weeks to visit his mother who he asserted was unwell. The parties reached agreement and on 24 August, orders were made suspending the March 2020 orders. The father was not permitted to take the child overseas and instead the child was to live with the mother until the father returned from Country B and completed a period of mandatory hotel quarantine, which was a condition of entry into Australia at that time due to the Covid-19 pandemic.
The child lived with the mother from mid- August 2020 to late September 2020, while the father was overseas and during this time the mother moved into the former family home to maintain some stability for the child. While the father was overseas, he telephoned the child most days including at 10pm at night on occasions, when the child was in bed.
The father returned to Australia in September 2020 but did not notify the mother of his arrival. On 17 September the mother’s solicitor emailed the father to confirm that he had returned and proposed that the March 2020 orders be varied to allow the child to spend time with the mother for five nights per fortnight and half school holidays.
During a court event on 22 September 2020, the ICL informed the Court that a proposal to change the interim orders had been circulated between the parties. When the Court asked the father, who was self-represented, if he agreed to the proposal the father stated that he “would be more happy if the mother is coming and living with us as a family” but otherwise indicated that if the mother was unwilling to do so, he would agree to vary the interim orders. For reasons which are not explained, although the father indicated his agreement to the variation, the interim orders were not varied at that court event.
The father subsequently rejected the mother’s proposal to vary the interim orders and the parenting arrangement under the March 2020 orders continued.
In October 2020 the father’s driver’s licence was suspended for reasons that are unclear.
On 27 October 2020 the father informed the mother by text message that he was experiencing health issues and the mother offered to assist him by taking the child to and from school. The father informed the mother by text message “daily travelling is not advisable for [the child] and more over she is not happy to stay there too keeps telling tummy pain so its better she be here” (sic). During the month of November 2020 the child was absent for five out of the 21 school days and was late with an “unjustified” reason every other day. On the days the child did attend, she was regularly taken to school by the father at around midday.
The mother was telephoned by the child’s School in early November 2020 and informed that the child was absent from school that day due to having blood in her stool. The mother contacted the father who informed her that he had taken the child to the general practitioner, who informed him that the child may need further tests and an endoscopy. The father advised that he did not want the child to undergo such further testing and instead wanted the family to return to Country B for treatment for the child. On 30 November 2020 the father forwarded to the mother, the mother’s solicitor, the School and the ICL, a doctor’s letter confirming that the child required further assessment and a photograph of what appeared to be the father holding the child’s stool over a toilet bowl.
The father withheld the child completely from school until mid- December 2020. On that day, the School telephoned the mother enquiring why the child had not been brought to school during this period. The mother contacted the father by video-call and observed the child watching television and was informed by the father that she was home as she was having “tummy pain”. The father agreed to take the child to school and the child eventually arrived at school at around midday. The mother then collected the child from school and was informed by the school that the father had reported that he intended to take the child to Country B.
On the same day,, the father resigned from his employment because according to his affidavit “things was getting too personal (sic)”. It would appear that this is a reference to the father’s belief that from the time the proceedings were initiated, a range of people were increasingly aligning themselves with the mother and taking actions or influencing the mother to his detriment including lawyers, the psychologist treating the child pursuant to court orders and various members from the parents’ community.
The mother filed an Application in a Proceeding on 18 December 2020 seeking that the child move to live with her and that she have sole parental responsibility for the child. The mother’s application came before the Court on 21 December 2020 and on that date it was noted that the father intended to travel to Country B and he was reminded by the Court that the child’s name remained on the Airport Watchlist.
In -January 2021 the family was interviewed by the Court Child Expert for the purposes of the Family Report.
At the time of this interview the mother was seeking sole parental responsibility for the child, that the child live with her, and that she spend time with the father each alternate weekend and half the school holidays. The father said he was seeking that he and the mother reconcile and that they move back to Country B with the child.
On 12 January 2021 further orders were made following an interim hearing (“the January 2021 orders”). These orders provided for the mother to have sole parental responsibility for the child in relation to medical issues and for the child to live with the mother from 23 January of that year. From 29 January 2021 the child was to spend time with the father each weekend from after school Friday until 10am Sunday, each Wednesday after school for a period of four hours and for about half the school holidays and to have daily telephone time with the father for half an hour. It was noted that the father intended to relocate to Country B in the near future, prior to the finalisation of the proceedings, and orders were made that in the event he relocated to Country B, the mother would have sole parental responsibility for the child and that the child’s telephone time with the father was to continue.
The child moved to live with the mother in accordance with the January 2021 orders and was enrolled in a new school near the mother’s home.
On 8 February 2021 the father emailed the chambers of the Judge who was then presiding over the proceedings stating that he was relocating permanently overseas from mid-February 2021.
While the father was in Country B, the mother facilitated the child having telephone time with him each day in accordance with the January 2021 orders, but deposes that the father would often be on the phone for over an hour which meant that the mother was required to end the call. Following a phone call between the father and child in late March 2021, the child informed the mother that the father had returned to Australia and was in hotel quarantine.
On 10 April 2021 the father advised the mother by text message that he had been released from hotel quarantine and would be collecting the child the following day, as pursuant to the January 2021 orders, the child was to be spending school holiday time with him. The mother was concerned about the prospect of the child spending overnight time with the father as at that stage, he had found only shared accommodation for himself for the single night of 11 April. For this reason, she allowed the child to spend only day time with the father.
On 23 April 2021 the Family Report dated 19 April 2021 (“the Family Report”) was released to the parties.
The Family Report is a matter to which I will return in further detail. It suffices to record at this stage that for reasons given in the report, it appeared highly likely to the Court Child Expert (“the expert”) that the father had attempted for a period of time to influence the child to view her relationship with the mother negatively. This matter, coupled with deficits identified in the father’s parenting capacity raised concerns for the expert about the child’s wellbeing in the father’s care. At that time, the expert recommended that the child live with the mother and that the mother hold sole parental responsibility. The expert also identified matters indicating that it may not be beneficial for the child to spend time with the father and was unable to make firm recommendations with regard to how much time, if any, the child should spend with him.
In his affidavit, the father deposes to continuing to seek that the family reunite and continuing to believe that various individuals were causing difficulties for him in various domains of his life, with the apparent suggestion that this interference was somehow connected with these parenting proceedings. In particular, the father deposes to difficulties at his workplace that caused him to lose his employment without proper reason in May 2021 and that his inability to sustain a job in his chosen profession affected his work performance and reputation. By late May 2021 the father had no job, no income and due to what he believed was “external influence”, difficulties related to his accommodation. He also claims that his privacy on various electronic devices such as his phone, email account and computer had been compromised.
From April 2021, the father on occasions failed to communicate with the mother about his whereabouts and intentions with respect to the arrangements for the child. On 25 June 2021 during the school holidays when the child was spending time with him, the father informed the mother that he was travelling with the child to the Region E. The mother raised her concerns that it was not safe or appropriate to be travelling with the child at this time, due to the Covid-19 pandemic as case numbers were then rising rapidly. The following day, the “Stay at Home” Covid-19 restrictions were instituted and when the mother attempted to contact the father, he did not answer her phone call. The father did ultimately return the child to the mother in accordance with the interim orders then in place.
On 28 June 2021 the father amended his interim application seeking that the child live with him and that he be permitted to relocate to Country B with the child.
Following a further interim hearing on 5 August 2021 orders were made that the mother hold sole parental responsibility for the child, the child live with her and spend time with the father whenever he is in Australia each alternate weekend from 9am to 5pm on Saturdays and communicate with him by telephone twice per week (“the August 2021 orders”). The proceedings were then transferred to the Family Court of Australia (as it was then known), due to their complexity and as the father had filed an application for international relocation. Following this court event, the father again emailed the Judge’s chambers seeking that the Judge reconsider his decision and allow the child to live in Country B.
Events after the proceedings were transferred to Family Court
The father returned to Country B in early September 2021. He deposes that at the time he was homeless and jobless and sought to leave to Australia on compassionate grounds for three months.
On 30 September 2021 at an electronic court event before a Registrar, the father’s interim application seeking leave to relocate with the child to Country B was withdrawn and dismissed and trial directions were made to ready the proceedings for final hearing. Despite withdrawing this application, the father again emailed the chambers of the former presiding Judge and the chambers of the Registrar after this court event, seeking that the child be permitted to move to Country B and raising concerns about the mother’s care of the child.
In October 2021 the father returned to Australia from Country B and upon completing a period of hotel quarantine, contacted the mother by text message informing her that he wished to spend time with the child the following day. The mother facilitated the child spending time with the father on 6 November 2021 and at his request she was also present during this time to ensure that the child was comfortable.
According to the father’s affidavit, upon his return he “took all the measures to live as a family”, but as at 6 November 2021 had not secured a job and had found only very short-term accommodation. He also deposes to believing that various individuals were once again interfering with his personal and family life.
On 7 November 2021 the father repeatedly called the mother’s phone and sent her text messages requesting to speak to the child. Due to the father’s persistence, the mother allowed the child to speak with him.
On 10 November 2021 the father arrived at the mother’s home unannounced and requested to see the child. Due to the father’s unexpected arrival, the mother felt that she had no choice but to allow him to see the child.
In the course of the father’s next conversation with the child he informed her that he would take her on an outing the following weekend. The mother deposes that when she reminded the father that the August 2021 orders provided for the child to spend time with him each alternate Saturday, he raised his voice in the child’s presence and stated that he would see the child when he wanted and if the mother did not allow him to do so, he would create problems.
Since the making of the August 2021 orders the father has at times continuously called the mother’s mobile phone and sent her messages telling her that she should allow the child to speak with him. The mother has felt significant pressure to allow the child to spend time with the father outside the orders. After a particular occasion in November 2021 when the mother allowed the child to spend additional time with the father she then decided to strictly follow the time arrangements contained within the August 2021 orders and not facilitate any additional time in the future and informed the father of this decision.
Since the father’s return to Australia in late 2021 he called the mother’s phone to engage in a conversation with the child every day at 6pm, including on days that are not specified in the orders for telephone contact. The father spoke on these occasions for a lengthy period of time and the mother was required to discontinue these calls after about one hour and pick up the phone only on the days that are specified in the orders.
In mid- November 2021 without giving prior notice to the mother, the father stood near the front of the child’s school and spoke to the child before she entered the school grounds. When the mother returned home, she sent the father a text message stating that she did not want him to “turn up” at the child’s school, causing unnecessary disruption to the child. The father responded to the message by stating that the mother should not try to separate him from the child.
In November 2021 the mother was unaware where the father was living, but believed it was close to her home. The child had reported to the mother that the father told her to look for him from the mother’s balcony when having telephone time with him and when in the school playground as he could see the playground from his balcony.
At around this time the father was having difficulties with his “roommates” in his shared household. He also deposes to having difficulties with the landlord and having concerns about the environment at the premises in which he was living. He describes that he was living “in the hall which was covered by a curtain”, that the unlocked windows were kept open all night and the lights were also kept on with loud music playing, so that it was an unsuitable environment for the child. He also deposes that at around this time he was having ongoing difficulties in securing a job and claims that once again, the difficulties he experienced seemed somehow related to the court proceedings and the interference of others.
When the proceedings came before a Registrar on 10 December 2021 for the purposes of a compliance check, it was noted that the father had not filed an Amended Response setting out the orders he sought or filed any affidavits in accordance with the trial directions.
From the start of the school year in 2022, the father was again present at the child’s school of a morning and in the afternoon.
At a further court event on 25 February 2022 at which the father did not appear, it was apparent that he had still not complied with further trial directions and filed documents as required for the purposes of the final hearing.
On one occasion in mid- March 2022, at the time school was due to commence, the father took the child from the mother and had a conversation with her before he would allow her to go into school. Of an afternoon, the father regularly followed behind the mother and child as they walked the short distance from the school to the mother’s home and on these occasions the child turned and waved to the father as she walked along.
On another occasion, in mid- May 2022 the mother became aware that the child’s school instrument had been taken and later that night, the father informed the child in the course of a telephone call that he had taken it. The next morning, the father arrived at the school with the instrument and handed it to the child.
At this time, the child’s time with the father in accordance with orders was only to take place each alternate Saturday. However, on the Saturdays on which that time was not to occur, the father was in the habit of attending upon the mother’s home, ringing her door bell at around 9am and then calling the mother by telephone and sending her messages requesting that she send the child out to him. The father persisted with this contact and waited outside the mother’s home for about 30 minutes on each occasion and sometimes remained there, sending messages to the mother for over an hour.
Further changes in the father’s circumstances and a change in the interim orders for the child
The proceedings were listed before me for a case management event on 1 April 2022 and an order was made for the father to file an Amended Response within seven days. It was also noted at that court event that on the next occasion, the proceedings may be listed for final hearing including on an undefended basis against the father or for a variation of interim orders, if necessary, depending on his application for final orders.
In April 2022 the father was arrested and charged with assaulting his housemate, one of the four individuals who occupied the apartment in which he then lived. According to the Statement of Facts tendered to the Court, when the father was sentenced for this offence, the father’s housemate and father had a dispute about a shopping trolley in the apartment. As the housemate attempted to close his bedroom door, the father forced the door open and pushed the housemate on his chest causing him to fall onto his bed. The father then reached down and held the housemate by his arm, preventing the housemate from getting up off his bed and slapped the housemate six to seven times on his face and head with his other hand. The housemate was left feeling dizzy and then contacted police for assistance.
At the compliance check on 12 April 2022, it was noted that the father had not complied with the order to file an Amended Response made on the last occasion and the proceedings were listed for an undefended hearing on 23 August 2022.
Although it was unknown by the Court or mother at the time, from 8 April 2022 until 2 September 2022, the father was homeless and was living (in his words) “on the street parking”.
In June 2022 the father was found guilty of assaulting his housemate and without a conviction being recorded was released on a conditional release order for 18 months. An Apprehended Domestic Violence Order (“ADVO”) was also made for the protection of the father’s housemate which remains in place until December 2023.
The Undefended Hearing
At the commencement of the undefended hearing listed for 23 August 2022, it was brought to the Court’s attention that the father had filed a number of documents the previous night including a Response and an affidavit which, it was submitted by the ICL, contained important material in relation to the father’s circumstances that would be of concern to the Court.
The hearing was then stood down to allow the other parties to read these documents and the mother then made an application that the order that the proceedings be determined on an undefended basis against the father be discharged, which was supported by the ICL and the father. I accepted the submissions of the mother and the ICL that it was in the best interests of the child that I read the material that was uniquely available from the father, particularly about his current circumstances (including his homelessness and assault charge) and for this reason the order listing the matter for undefended hearing was discharged. I also ordered an update Family Report given the numerous incidents, change of circumstances for the child and change in the father’s proposal.
The proceedings were then set down for final hearing for three days commencing on 13 February 2023. On the application of the mother, an order was made pursuant to s 102NA that the parties be banned from personally cross-examining each other at the final hearing. It was explained to the father, who was self-represented, that as he was banned from personally cross-examining the mother, a lawyer would be appointed by Legal Aid to represent him pursuant to the Family Violence & Cross-Examination Scheme, if he took the necessary steps for that appointment to be made. The father was ordered to do all things required of him to ensure that a lawyer was appointed to represent him pursuant to this scheme.
The father, in his Response filed 22 August 2022, sought that an order be made that the family “reunite” and his affidavit filed on the same day is replete with references to wanting to reunite as a family. It was explained to the father at the 23 August court event that the Court does not have the power to make such an order and therefore no order of this nature would be made. In these circumstances, the father was asked to state his position to the Court and he clarified that he sought an order for equal shared parental responsibility. When asked where he intended to live, the father was uncertain but ultimately stated that he would live in Country B and conceded that in these circumstances an order should be made that the child live with the mother. The father also stated that he wished for the child to spend time with him during the school holidays, but was unable to be more specific about the actual parenting arrangement that he proposed.
The mother was granted leave to make an oral application to vary the August 2021 interim orders and leave was also granted for her to file in Court and rely upon an affidavit which had been sworn that day.
For Reasons given ex-tempore, the interim arrangements for the child were varied by discharging all previous parenting orders. In their place orders were made (“the August 2022 orders”) for the mother to hold sole parental responsibility for the child, the child to live with the mother and spend no time with the father except for one telephone or video call which was to take place from 6pm – 6.30pm each Saturday evening. The father was also restrained pursuant to s 68B of Family Law Act 1975 (Cth) (“the Act”) from entering or coming within 100m of the home of the mother and child or any school attended by the child and the child’s name was to remain on the Airport Watchlist.
At the time the August 2022 orders were made, the father was homeless and unemployed. The following month, in September 2022 he found employment in an allied health role. He was not paid for carrying out this role, but was provided accommodation and earned a little extra money cleaning and undertaking other jobs which was sufficient to pay for his food. The father also commenced some other employment in his usual occupation from November 2022. He maintained telephone contact with the child on Saturday evenings in accordance with the interim orders.
The family was interviewed for a second time by the expert in January 2023 and the child was observed in her interactions with both parents. The update Family Report dated 24 January 2023 was released a short time later.
One again the update Family Report is a matter to which I will return. In summary, the expert continued to recommend that the mother have sole parental responsibility for the child and that the child live with her. The expert recommended that the child continue to have telephone contact with the father once per week, but did not recommend that the child spend any time with the father other than supervised time, which she opined could be for up to two hours per fortnight, so long as such an arrangement is practicable. All of the expert’s concerns regarding the father’s behaviour and parenting capacity and its impact on the child’s short and long-term development as outlined in the Family Report of April 2021 remained and these concerns were heightened by what appeared to be a deterioration in some aspects of the father’s mental health.
FINAL HEARING – FEBRUARY 2023
Preliminary Matters
At the commencement of the final hearing on 13 February 2023, the father was representing himself. He had attempted to file an application seeking various orders at the commencement of the hearing and notwithstanding irregularities in the filing of that document, this application was heard at the outset. The father first sought an order that the hearing be vacated. Second, despite the explanation that had been given at the court event in August 2022, the father was also seeking an order that he and the mother reconcile. Once again, he was informed that the Court had no power to make such an order and the mother had made it abundantly clear that she had no desire to reconcile in any event. Effectively, this application was summarily dismissed. The third application that the father wished to have determined at the outset related to the appointment of the lawyer under the Family Violence & Cross-Examination Scheme.
It was apparent from documents tendered in the father’s application for vacation of the hearing that a named solicitor had been initially appointed to represent him in the proceedings, but this solicitor had not formally come onto the record and was not present at the final hearing, even on an amicus basis.
It then became apparent from documents tendered by the father that Legal Aid had determined on Friday 10 February 2023, one business day prior to the commencement of the trial to reassign the hearing to a different legal representative. The father said that he had heard nothing further from Legal Aid other than receiving advice to represent himself and to seek an adjournment of the proceedings.
In further interchanges between myself and the father, it became apparent that he believed there had been some form of ongoing collusion between members of his community (who had previously involved themselves in some way in the parental dispute) and the lawyer who had been originally assigned to represent him. It was the father’s position that the allocation of a further lawyer had not been done in time for the commencement of the hearing and for this reason, he was seeking that the proceedings be adjourned. It was explained to the father that his application was effectively one to vacate the hearing, as, if the hearing were not to proceed, I was unable to allocate a future date due to changes in relation to such matters that had been recently instituted in the Court.
In the context of seeking that the proceedings be vacated, I understood that the father contended that his lawyers to date had not proposed an arrangement in final orders with respect to the child’s parenting arrangement that reflected his intentions. When asked about the general nature of the orders he proposed, the father indicated that he sought an order that he and the mother have equal shared parental responsibility, that the child live with him, and that she spend time with the mother on alternate weekends and school holidays. When asked whether he was seeking an order that he be permitted to relocate the child’s residence, the father said that he did not wish to relocate overseas but definitely wished to relocate from the current suburb in which the child lives to another part of Sydney. At one point, the father then appeared to re-agitate the possibility of the Court ordering that he and the mother live together and raise the child together as a family and once again was informed that this was not possible.
The father’s application to vacate the hearing was opposed by the mother’s lawyer and the ICL.
While in the course of giving ex-tempore reasons for refusing the father’s application to vacate the hearing, I was informed by counsel for the ICL that the ICL had received a message at 11:43am to the effect that a lawyer for the father had just been appointed by Legal Aid. The hearing was then stood down to enable the solicitor who was said to have been appointed to formally come onto the record and attend Court.
Although various messages were left with the solicitor who had apparently been appointed for the father in the proceedings by both my chambers staff and the ICL, no contact was made by the solicitor herself. When the hearing resumed, I was informed by the ICL’s counsel that the solicitor appointed for the father was unable to come to Court, but had offered, as understood by the ICL, to appear by telephone or video-link. As the solicitor had at that stage not filed a Notice of Address for Service and it was unclear whether she would be representing the father and had made no contact with the Court, I completed the delivery of my judgment refusing the father’s application that the final hearing be vacated.
After the Reasons for a refusal of adjournment were delivered, my associate informed me that an email had been received from the solicitor appointed by Legal Aid to act on behalf of the father and that she was on her way to Court. I then indicated that the hearing would resume at 2:30pm after a lunch adjournment commencing, for the reasons given, with the father’s case, even though he was the respondent in the proceedings. The father was provided with information about self-representation in parenting proceedings in accordance with Re F: Litigants in Person Guidelines.[1] Prior to adjourning, I also directed that the father set out in writing the orders that he sought in the proceedings.
[1] (2001) FLC 93-072.
When the proceedings resumed at 2:38pm, the solicitor who was said to be representing the father was not present, even though the ICL’s counsel informed the Court that the solicitor had made contact with the ICL and indicated she would be present at 2:30pm. A short time later, the father’s solicitor appeared but was not formally on the record at that time. The solicitor explained that she was having difficulty filing a Notice of Address for Service and was permitted to file this document in Court. She then made application for the proceedings to be adjourned until the following morning just as cross-examination of the father was to commence. The mother opposed to this application for adjournment, but the ICL consented to it.
At that stage, another issue came to light, in relation to the solicitor’s capacity to represent the father arising from an event involving the solicitor herself at another Court registry a few weeks previously. When my knowledge of this matter was brought to the attention to the father’s solicitor, she said that she had no application to make in relation to me continuing in the final hearing. Ultimately, I granted an adjournment of the proceedings until the following day.
On the second day of the final hearing, the father continued to be represented by the solicitor assigned by Legal Aid, who had also instructed counsel to appear on his behalf. At the commencement of proceedings on that day, I informed those present that I had further information about the incident involving the father’s solicitor and my concern that there may be a further application by one of the parties in light of this information. The father’s counsel was granted an adjournment to obtain instructions and counsel for the ICL took the opportunity to consult with senior counsel to receive some advice.
After an adjournment, there was a further interchange between myself, counsel for the father and the ICL and the father himself was then given an opportunity to obtain some independent legal advice in relation to any application he may wish to make about his ongoing representation by the assigned solicitor, in light of the matters that had been raised. The father was given two hours and as I understand it, did receive some independent legal advice. The father’s counsel appeared unable to inform the Court of her client’s instructions but the father himself directly informed the Court that he wished to proceed with the final hearing being represented by the assigned solicitor and counsel.
Additional relevant evidence
Under cross-examination there was considerable focus on the feasibility and practicability of the father’s proposal that the child live with him. The father at final hearing also proposed that the child attend at the previous school in which she was enrolled when living in the former family home, some distance from the father’s then current accommodation.
When asked about his work hours and how the child would get to school, the father answered variously that he might bring his parents out (from Country B to Australia), that he could find an after (school) care service if the child was willing or could exercise the option to work from home. The father then said that he would have to move to the suburb in which the child’s school was located. He then indicated that he was working in an entirely different part of the city from his home or the school at which he intended to enrol the child.
When cross-examined about the distance between his workplace and the child’s intended school, the father initially gave an estimated travel time of 20 minutes by car (a time which appeared to be given as an underestimate given the distance), but then conceded that he had not done the trip as he didn’t own a car. When asked how he was going to take the child to school without a car, the father said that he could buy a car, but then conceded that he did not have the current financial capacity to buy a car, but would be able to do so in three months’ time.
The father was then cross-examined about an earlier comment that he had made that the child could attend aftercare at school “if she was willing” to do so. The father conceded it should not be up to the child at her age to determine whether she is willing to do something like attend after school care.
As the father had claimed that his new job gave him extra financial capacity, he was asked whether he had paid any child support to the mother in the last three months and the father agreed that he had not. The father then claimed that when he last asked the mother whether she had any financial difficulty she denied that she had.
When later cross-examined by the ICL’s counsel about his current financial circumstances, the father said that he had less than $1000 in his bank account at present and had borrowed money from overseas and used his credit card when he was jobless for six months and these loans were now being repaid. He said that he had close to $16,000 owing on credit cards and owed around $10,000 to people overseas.
When asked about his current living arrangements, the father agreed that he currently lived in shared accommodation and that his employers occupy most of the home and that he had a separate room. He also gave evidence that he has access to his own kitchen and bathroom. When asked about how he had come to take up this position, the father said that the people that he lived with were not known to him previously and that he had seen the advertisement for the position on an online platform. He also agreed that he had no experience or qualifications in this role, but claimed that he “had to go through the training”, from as I understand it, another qualified person also in the same role. The father also explained that his work responsibilities are according to a roster where he is required to work between 7am and 8am, 6pm to 7pm and 10 minutes at 11pm, six days per week.
The father agreed that he proposes that the child live with him in this shared home. He said that the child would not be a sharing bedroom with him and claimed that she would have a separate room in the part of the house occupied by his employers. He explained that although his employers are “happy to welcome my daughter”, he would be required to pay rent for her room. He ultimately agreed that this meant that the child would have a room in a different part of the home to the part occupied by himself and that the child’s bedroom would be in the other part of the house to which he did not have access. The father also agreed that the child had not met any of the people in this shared house and had only had telephone contact with them on one occasion.
The father also agreed under cross-examination that when interviewed by the expert the previous month in January 2023 he told the expert that he had not asked his employers whether the child could live at their home, but claimed to have asked them since that date. This request and approval were contained in text messages which although called for, were not ever produced to the Court.
Under further cross-examination, the father confirmed again that he did not pay any money to live at his current premises. When asked why he had produced a residential tenancy agreement through his lawyer on the second day of the final hearing, the father explained that he had obtained this lease agreement for different purposes. The agreement had been obtained for the purposes of his other job where he needed to have “a special clearance” and in order to receive this clearance he was required to provide a proof of an address. The father prevaricated when asked questions about the tenancy agreement and could not concede that he had entered into this tenancy agreement with the man whose home he occupied free of charge and also had difficulty accepting that the document he had produced was incomplete and did not contain his signature.
Another matter that was explored at some length under cross-examination of the father was his belief about various people interfering in his affairs, who he referred to as the “middlemen” when interviewed by the expert for the update Family Report a short time before the final hearing.
The father agreed that he had told the expert the criminal charges were a result of the “middlemen playing a game” and that he thought his mobile phone, laptop and internet were being monitored through a third party who he nominated as “the Workforce”. When asked what he meant when he said the “the Workforce” were monitoring his electronic devices, the father claimed that he had raised a request at Centrelink “asking to see if there is a process where you wanted to file a notification that you’re being tapped for whatever” and that he received a response from Centrelink that his devices were being monitored for the child’s safety.
THE MATTERS IN DISPUTE
Is the father a perpetrator of family violence?
Both the ICL and mother seek a finding that the father has engaged in behaviour towards the mother both when the relationship was intact and since separation that falls within the definition of “family violence” in the Act. In the Outline of Case filed on behalf of the father, he appears to suggest that this is not a matter in issue in the proceedings as neither parent indicated to the expert that they were fearful of the other parent and as there is no extant AVO for the protection of one parent against the other. In final submissions made on the father’s behalf family violence was not addressed.
It is the mother’s case that the father has engaged in conduct that amounts to family violence in a number of ways. She contends that he unilaterally exercised control over the movements of herself and the child, requiring they both live where he determined in Australia and overseas, and at times exercised control over her ability to obtain employment. The mother also contends that during some periods of time the father unreasonably prevented her from exercising her financial autonomy and/or unreasonably withheld financial support needed to meet her reasonable living expenses. The mother also alleges that the father on one occasion physically assaulted her. It is also her case that the father’s actions in moving to Australia with the child in January 2019, failing to inform her that he had obtained her visa and taking other steps to disrupt the child’s relationship with her prevented her and the child from keeping connection with one another for at least 12 months, essentially for the entirety of 2019. This action she contends amounts to subjecting both herself and the child to family violence as defined in the Act.[2]
[2] Section 4AB (1) Family Law Act 1975 (Cth) defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful. The examples of behaviour that may constitute family violence include: 2(a) assault; 2(g) unreasonably denying the mother the financial autonomy that she would otherwise have had; 2(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or the child, at a time when the family member is entirely or predominantly dependent on the person for financial support; 2(i) preventing the family member from making or keeping connections with his or her family, friends or culture.
In her affidavit the mother deposes to a number of circumstances in which the father behaved in a coercive or controlling manner towards her throughout their marriage. The mother deposes that when the family first came to Australia in November 2013, the father who was the primary applicant for the parties’ visas decided that she who was pregnant with the child was to remain in Australia for only about a week and should then return to Country B to live with the paternal family. She says that this decision was made by the father unilaterally without any discussion about these matters with her. The mother deposes that the father told her what was happening and that she had no choice but to do as he said.
Under cross-examination, the mother was challenged about her evidence that there was no discussion between herself and the father in January 2014 about his plans for her to return to Country B after one week, while he remained in Australia and that she felt that she had no choice, but to do as he said. The mother remained firm about her evidence and no further cross-examination on the topic ensued.
The mother next deposes that in late 2015, the father unilaterally decided to move to Australia again and left her and the child living in Country B with the paternal family without giving her any opportunity to discuss this arrangement.
According to the mother’s affidavit, after May 2016 when she had obtained employment in Sydney and she and the child joined the father to live as a family in Australia, the father began demanding that she leave her employment and stay at home to look after the child. In September 2016 the mother resigned from her employment to stay home and care for the child in accordance with the father’s wishes.
The father deposes that at this time the mother “mentioned” that she could not balance both work and family which is why he requested that she quit her job and take care of the family.
There appears to be no dispute that in October 2016 the father decided that the family should move back to Country B and that he took steps for this to occur, such as selling the parents’ possessions and closing their joint bank account. The mother deposes to this being the father’s unilateral decision and to feeling that she had no choice but to go along with his plan, even though she felt her whole life was being disrupted again. The mother also deposes to the father determining that she and the child would live with the paternal family in Country B.
In her affidavit and under cross-examination, there was a particular focus on the period of time in which the mother and child came to live with the father in City D from July or August 2017 until they moved to Sydney about a year later. According to the mother’s affidavit, the father did not permit her to work during this period of time and many aspects of her life including access to money and the use of the internet were controlled by him.
When cross-examined by the ICL about the period of time in which the family were living in City D, the mother provided more detail about her allegations of the father’s controlling behaviour. She gave evidence that she was required to seek the father’s agreement or consent to obtain her driver’s licence because he was the person who would be paying for the licence as she was not working and earning any income at the time. The mother also said that although she had driven in Country B and wanted to obtain her licence in City D, she did not take steps immediately to do so, as she did not have access to a mobile phone or a password to use the internet.
The mother then confirmed that no steps were taken by the father for her to have a mobile phone or bank account, even though when she previously worked in Australia in 2016 the father provided her with a phone and they had a joint bank account into which her pay was deposited. The mother said that this joint bank account held by the parties for five months in 2016 was closed by the father after an argument and without her knowledge he transferred all the balance into his account. The mother gave evidence that she did not have any bank account in her name in Australia until she opened one herself in 2021 after separation.
When cross-examination returned to the period of time in which the parties lived in City D between about August 2017 and June 2018, the mother said that during this period she did not have a mobile phone, a password to access the internet, a computer or an iPad, but the father gave her his Wi-Fi password to use on his mobile phone. The mother also said that in addition to having no access to any bank account, credit card or money during that time, she had no funds to buy anything for herself or the child. She was unable to have a haircut or buy any new clothes or underwear and spent no money on herself or the child during the entire time she lived in City D. The mother also said that the father alone delivered the child to and from “school” (pre-school) and never allowed her to attend the child’s school.
The mother also confirmed that during the period of time the family lived in City D, she and the child never left the home alone. The mother agreed that she thought that the father may react negatively if she did go outside the house alone with the child and that it was easier to not do anything that might cause him to act negatively.
When he was cross-examined the father was asked about an incident of physical violence that the mother had reported to the expert as having occurred when the family lived in City D. The mother told the expert that this was the only occasion on which the father was physically violent and that this assault arose in the course of an argument about passports. The mother told the expert that when she tried to take her passport from the father, he slapped her and pushed her and then unilaterally took the child and moved out for the night. She told the expert that she had been too fearful of the repercussions from the father to report this alleged physical abuse to police.
Under cross-examination, while he disputed some matters reported by the mother such as that the argument related to passports, the father did agree that he had slapped and pushed the mother on this occasion and that he had taken the child away from the house. According to the father’s evidence, he left the child with a friend, effectively so that the child could be protected from the conflict and he could return to sort out the issue between himself and the mother. The father was then pressed about his evidence that it was he who slapped and pushed the mother but that he had then removed the child from this incident (in an effort to protect her). At this point the father appeared to suggest that the incident had involved mutual violence, claiming that he “got hit on my tummy” and had “no other choice other than self-defending”. The father then claimed that he recently had surgery at that time and was in pain and that hitting the mother was “a defensive reaction towards the action what has happened”.
There is no dispute between the parties that the family relocated from City D to Sydney in around June 2018. The mother deposes that she opposed this move, but the father ignored her, while the father denies that the mother objected to moving and deposes that she was happy to relocate to Sydney.
In July 2018 the father made arrangements for the family to travel to Country B and informed the mother that this would occur on extremely short notice. According to the mother’s affidavit, she was unaware that he had booked only one-way tickets and when the family arrived in Country B, he refused to discuss the family’s return to Australia. The father then returned to live in Australia while the mother and child remained in Country B with the paternal family.
In around August 2018 the mother was offered a job interview for a company in Australia, but she deposes that the father did not allow her to pursue this job opportunity and required that she remain in Country B. The father deposes that the mother was not prepared to live in Australia “as a family”, which appears to suggest that she was not prepared to cease working. He says they mutually decided that the mother would continue to live in Country B.
In October 2018 the child commenced school in Country B at a school that was chosen by the father and paternal grandparents without any input from the mother. The mother deposes to the arrangements being unsuitable for the child given her age and for this reason the child struggled with the classwork.
In December 2018 the father unilaterally decided to return to live in Australia with the child and paternal grandmother and the mother deposes to having no ability to prevent him from doing this. She deposes that the father informed her that she could not come to Australia as she did not have a visa, but assured her that he would obtain one for her and she would be able to join the family within two weeks.
Ultimately, there was no dispute that the father deliberately concealed from the mother that a visa had been issued for her return to Australia knowing that it had been approved in April 2019 and was to expire in April 2020. The mother only became aware of these matters when she took steps to obtain a visa herself.
Under cross-examination about events relating to the mother’s visa in 2019, the father gave an extremely complicated explanation which I found difficult to follow. He did agree however that in 2019 he made the application for the mother’s visa so that she could return to Australia as a permanent resident and that this visa was granted in April 2019, but he did not inform the mother of this fact.
Although the father’s evidence was difficult follow, he consistently maintained that the mother did not wish to return to Australia at that time. The father did however concede under cross-examination, that from April to November 2019 he stayed in Australia with the child and never told the mother that she had a visa that allowed her to travel to reunite with her daughter throughout that period. He also agreed after some obfuscation that during the same period he did not facilitate the child having telephone conversations with the mother and continued to maintain that was because the mother had said she didn’t want to speak to the child and having no telephone communication was something the mother wanted. When later asked about the impacts upon the child of not seeing her mother for about 11 months in 2019, the father said that he did not think that it impacted her at all.
The father ignored the mother’s emails advising him of her return to Australia, made no arrangements to collect her from the airport, prohibited her from entering the former family home when she arrived and called the police to have her removed from the former family home. The father’s actions caused the mother considerable distress at being separated from the child.
It is the mother’s case that the father’s actions in the foregoing incidents to which she deposes and which were revealed under cross-examination amount to family violence and to the extent that the version of events between her and father differ, that I should prefer her evidence and find her contentions about family violence proved.
It is submitted on behalf of the ICL that the father’s concessions and the mother’s unchallenged evidence in relation to his conduct towards her when they lived in City D in 2017 and his actions between April and November 2019 clearly amount to the father having been the perpetrator of family violence.
As previously noted, the father takes issue with some of the mother’s evidence concerning his actions that if accepted amount to family violence. He did not however give any version of events concerning his actions towards the mother when the family lived together in City D in 2017 and conceded the correctness of her contentions about his actions between April and November 2019. He also conceded that he physically assaulted the mother as she alleged on one occasion although, it appears he claimed under cross-examination that his actions were taken in self-defence. Evidence of the mother’s actions in the course of this incident were not deposed to in the father’s affidavit or put to the mother under cross-examination. Further, no submissions were made on the father’s behalf as to why I should accept his evidence over the mother’s evidence where it differs, or in relation to the contention that his alleged actions if found proved, amount to family violence.
I am satisfied to the requisite standard[3] that the father engaged in family violence on numerous occasions when the parties’ relationship was intact. Where the evidence of the mother is at odds with the father’s evidence, I prefer the mother’s version for the reasons that follow.
[3] S 140 of the Evidence Act 1995 (Cth) provides that in a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
The expert considered it unlikely that the father would move away from his delusional or disordered thinking without professional intervention and that he presented as having low insight that he may have any delusions or ideas that were inconsistent with reality. The expert agreed that there is a need to protect the child from the father’s disordered thinking and could offer no suggestion of orders that the Court could make (including treatment of the father) to ameliorate that risk sufficiently. The expert agreed that the only way to protect the child from the risk posed by the father is either to cease communication and the child’s time with him or to significantly limit it and subject it to supervision.
When asked about the benefit for the child of having limited supervised time at a contact centre with no telephone contact, the expert said the benefit of such an arrangement would be “purely for identity purposes”. The expert explained that the child’s relationship with the father would deteriorate over time due to there being long periods where there is no positive contact, but such “identity” time “would provide some benefit, just in the sense of contact with her biological father, understanding of parental origins”. The expert thought that from the child’s perspective the benefits of some limited supervised time would outweigh the option of no time altogether, so long as the father is able to contain himself during that supervised time. She also agreed that if any contact centre nominated in orders were not willing to provide the service, that there is no benefit of attempting to seek ongoing time with another service.
Under cross-examination by the mother’s counsel, the expert agreed that if telephone time between the child and the father is conducted in a way where it is supervised and no emotional pressure is placed upon the child, then it may be beneficial, but if these requirements could not be met, such contact would be detrimental to the child. The expert also reiterated her earlier evidence that if the Court determined that there was no benefit to the child in having face to face contact with the father, then there is no benefit to having telephone communication, especially very regular calls and if the Court is of the view that the child would suffer some form of harm if she were to have face to face contact with the father, then the telephone calls would have the same effect. In summary, she agreed that the Court should order either both telephone and face to face contact or neither form of contact.
The father’s counsel did cross-examine the expert and informed the Court that the father was “not challenging anything” and that the Family Report “speaks for itself”.
The expert holds a tertiary qualifications and at the time of writing her report had experience as a Family Consultant/Court Child Expert. Prior to that role, the expert worked in counselling and family therapy services. The expert assessed the family on two occasions, two years apart and on each occasion observed the child with each parent and had access to a large number of documents filed in the proceedings and records produced under subpoena, including from the two schools attended by the child, the Department of Communities and Justice, a medical centre and police. The expert was cross-examined at some length by the ICL in particular and maintained her views and recommendations giving a detailed explanation for each in oral evidence. None of her evidence was challenged by the father in cross-examination. In light of all of the foregoing, I accept the opinion of the expert and attach weight to it.
THE LAW & DISCUSSION
The objects of Part VII of the Act and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
Primary considerations: s 60CC (2)
The primary considerations (under s 60CC(2)) are:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
Although the meaning of the phrase “meaningful relationship” is not defined in the Act, the Full Court in McCall & Clark[4] approved the interpretation of the phrase by Brown J in Mazorski & Albright[5] that it is a relationship that is “important” or “of consequence”.
[4] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92.
[5] (2007) 37 Fam LR 518.
The authorities have not interpreted this subsection as creating a presumption that a child does receive a benefit from having a meaningful relationship with both parents. Further, in accordance with the Objects of Part VII of the Act, the best interests of a child are met by ensuring the child has the benefit of both of their parents having meaningful involvement in his or her life to the maximum extent consistent with the best interests of the child (emphasis added).
The Full Court said in McCall & Clark (supra) at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The orders proposed by the ICL and adopted by the mother, if made, would not foster the child’s meaningful relationship with the father as that expression is understood in the authorities, though it would provide a basis upon which the child may understand her identity and connection to the father and paternal side of her family through some time spent with the father.
While neither the ICL or mother submit that the child would not benefit from having a meaningful relationship with her father, both contend that such a benefit will only be derived if the child is adequately protected from the risks of harm he poses arising from abuse and being subjected to or exposed to family violence. In this regard, both the ICL and mother submit that the father poses an unacceptable risk of harm of the type contemplated in the second of the primary considerations which is harm arising from abuse and being subjected to or exposed to family violence. The ICL and mother contend that the child would be exposed to such a risk of harm if orders are made as the father proposes and that there is no other arrangement that can satisfactorily ameliorate this risk of harm other than the orders that they propose.
Pursuant to the Act[6] “abuse, in relation to a child” includes “causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence”.
[6] S 4(1)(c) Family Law Act 1975 (Cth).
As previously discussed at length, the expert identified a number of features of the father’s relationship with the child, and his behaviour and parenting practices which have caused the child to suffer serious psychological harm.[7] There is also considerable overlap between the expert’s opinion in relation to the father’s behaviour that falls within the definition of family violence and abuse of the child. The expert’s identified concerns about shortcomings in the father’s capacity to provide appropriate emotional and psychological support to the child and to separate and prioritise her needs over his own perceived needs and views is also another relevant feature of the father’s care which caused the child to suffer serious psychological harm when the child was living with him. The expert was not challenged about her identification of the father’s poor parental reflective functioning and evidence that such poor parental reflective function is linked to poor mental health and developmental outcomes in children. In a similar vein, the expert identifies features of parentification in the relationship between the father and the child.
[7] See paragraphs [195] – [196], [198] and [200] of these Reasons.
The expert was similarly not challenged on her evidence about indicators that the child has likely become highly attuned to reading the father’s verbal and non-verbal cues and her likely perception that she needs to disown her own feelings and needs including any positive views she might have about her mother in order to retain and maintain her relationship with her father and receive his approval. In this context, the expert opined about the difficulties that the father may have in supporting the child to achieve differentiation of self as she approaches adolescence and the detrimental impact upon children who are unable to achieve differentiation of self[8].
[8] See paragraph [199] of these Reasons.
For the Reasons given, I am satisfied that the father has perpetrated family violence against both the mother and the child and in particular, so far as the child is concerned, by preventing the child from maintaining her relationship with the mother between at least April and November 2019. I also accept the expert’s unchallenged evidence about the negative impact on the psychological wellbeing of those affected by controlling family violence and about the way in which a child can be adversely affected through ongoing contact with a person who perpetrates controlling family violence as well as the parenting deficits of such a perpetrator.[9]
[9] See paragraphs [191] – [192] of these Reasons.
I am also satisfied, particularly as I accept the evidence of the expert that the father as a perpetrating parent has also attempted to undermine the mother’s role as a parent and the child’s relationship with the mother.
The foregoing serious concerns and other matters about the father’s parenting style, behaviour and relationship with the child are matters which the expert considered may amount to a risk of psychological harm to the child in her first report. Over time, the expert’s views in relation to these matters became firmer.
In her update Family Report, the expert recorded that all of the concerns she held in relation to the father’s behaviour and parenting capacity and the impact that this is likely to have on the short and long-term development of the child as outlined in her Family Report remained current and that her concerns were highlighted by what appeared to be a deterioration in some aspects of the father’s mental health. The expert identified additional concerns in the course of her second assessment about psychological harm to the child if she were to spend unsupervised time with the father, arising from the likelihood that the child would become drawn into some aspects of his delusional ideations concerning the mother, unnamed community members and the child’s own health.
Significantly, in relation to the risks posed by the father in the future, the expert opined that as he lacked insight into his own psychological processes and is thus unable to contain them around the child, there is no evidence apparent to the expert to suggest that the father is aware of his own shortcomings and he is thus unlikely to seek out appropriate treatment.
On the basis of my findings, I am satisfied that the father has engaged in coercive and controlling conduct towards the mother throughout their relationship. He has also exclusively controlled many aspects of the child’s life both when the parental relationship was intact and when the child was in his primary care. He utilised poor parenting practices that resulted in the child becoming parentified and has continued to place emotional pressure on the child.
All of the foregoing matters identified by the expert and which are detrimental to the child for the reasons explained by the expert, have remained unchanged. Matters of concern relating to the father’s own psychological functioning and likely mental health difficulties have increased the risk of psychological harm posed by the father as also explained by the expert. In the foregoing circumstances, I consider it highly unlikely that the father will change and I am satisfied that he will continue to pose an unacceptable risk of serious psychological harm to the child should the child spend unsupervised time or regular time with him.
Having accepted all of the expert opinion, I do not consider that the child will receive a benefit from orders that foster her having a meaningful relationship with the father. I consider it likely however, that she will receive a benefit of having some relationship with the father.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the child and factors underlying those views
Nature of the child’s relationship with each parent and other significant persons (including grandparents or other relatives)
When interviewed on the first occasion, the child reported to the expert that she would prefer to live with the father whether he lived in Country B or Australia and following the observation session with the father on that occasion, the child claimed that she did not like spending time with the mother and made numerous complaints about her.
When assessed by the expert on the second occasion in January 2023, the child was much more positive about her mother and in relation to her living arrangements said that she wanted to live with both parents in the same house, but acknowledged that she did not think this would happen. The child then indicated that she would accept it if it were determined that it was in her best interests that she live with the mother, but that she would rather live in an equal time arrangement.
The expert assessed the child as being equally attached to both parents, but identified a number of concerns about the nature of the child’s attachment to the father. As noted earlier in these Reasons[10], while the expert notes some positive features in the child’s attachment with the father such as genuine love and warmth and the father’s level of playfulness and consistent engagement with the child, there were numerous negative features identified in that relationship. The expert first assessed that the child’s attachment to the father is partly based on the child’s perception that she needs to meet the father’s emotional needs and may consider that she needs to align with his views or she may be rejected by him. The expert also identified that the child’s relationship with the father was parentified and in oral evidence identified numerous matters that indicated to her that the father had attempted to alienate the child from the mother, that is, cause the child to reject the mother without foundation.
[10] See paragraphs [249] of these Reasons.
Given the expert’s evidence of the nature of the child’s relationship with the father, the matters that caused the expert to conclude that it was highly likely that he attempted to influence the child to view her relationship with the mother negatively, the child’s age and stage of development and the significant features of risk in these proceedings, I do not attach any weight to the child’s views in relation her parenting arrangement.
Although it was a feature of the father’s case throughout the proceedings that his relationship with the child was in some way more significant and more developed than the mother’s relationship with the child, no submissions were made in relation to this matter (or effectively in relation to any other matter concerning the best interests of the child) in final submissions made on the father’s behalf.
Despite the negative comments made by the child after she had been observed with the father at the first assessment, the child’s statements to the expert about her mother in the first part of this interview as well as the expert’s observation of the child with her mother, suggested to the expert that the child has an established positive relationship with the mother. In her update Family Report, the expert re-iterated that the child clearly loves both parents and wants to spend time with each of them. The expert identified no concerns about the relationship between the mother and child and in oral evidence confirmed her views about the strength of the child’s relationship with her mother.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child
As discussed at some length in these Reasons, when the parents’ relationship was intact and until the child moved to live with the mother, the father unilaterally made significant decisions in relation to the child, such as where she was to live, her enrolment in preschool and decisions about the child’s medical treatment. At times, it appeared that he also involved the paternal grandmother in this decision-making rather than the mother. I am of the view that during this period, the father was dismissive and disrespectful of the mother’s role as a parent.
Since the August 2021 orders the mother has held sole parental responsibility for the child which she appears to have exercised in a responsible and child-focused manner.
Both parents have at all times sought to be involved in the child’s life and have diligently sought to participate in long-term decision making and spend time with and communicate with the child. It is sad and regrettable from the child’s perspective that the father appears to have no insight into the detrimental impact that his high-handed approach to these matters has had upon the child with the result that his role in her life needs to be significantly curtailed in order to safeguard her psychological wellbeing in the future.
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
There is limited evidence concerning the financial support for the child provided by each parent since the commencement of the proceedings, other than the father’s admission under cross-examination that he had not provided any financial support to the mother for the child during the few months prior to final hearing in which he had become employed after a long period of unemployment. This is not a particularly weighty consideration in the resolution of this dispute.
Capacity of each parent and any other person to provide for the child’s needs
Likely effect of change in the child’s circumstances
These two matters which are highly interrelated (and overlap considerably to the matters discussed with respect to the primary considerations) are the most salient matters in resolution of this dispute.
As discussed at length in these Reasons, the expert was not challenged about her identification of the numerous shortcomings in the father’s parenting capacity which give rise to serious risks of harm to the child if orders were made that the child live with or spend unsupervised time with him. I accept the unchallenged evidence of the expert about the likely impact upon the child if she were to live with the father as he proposes, including the likelihood of serious psychological harm and likely breakdown of the relationship with her mother, which would be profoundly detrimental to the child.
The expert identified no concerns about the mother’s parenting capacity and observed that she interacted with the child in a “warm, cheerful manner”. The mother reported to the expert that the child is well settled in her care and is happy. The expert observed that the mother showed no indication that she speaks negatively about the father to the child and this is supported by the positive way the child views the father. It is noted by the expert that the child’s health, mood and school attendance are much better in the mother’s care than in the father’s care.
I also accept the expert’s evidence about the likely impact upon the child if orders are made as proposed by the ICL and mother. In particular, it is likely that the child will experience ongoing feelings of sadness as a result of separation from the father as the child reported to the expert on the second occasion. There is also some risk that the child may hold the mother responsible to some extent for the circumstances in which she will spend such limited face to face time with the father, as the child also reported to the expert. The expert made recommendations in relation to the provision of psychological support and therapy and the need to provide an explanation to the child for the court orders to address these impacts. All the recommendations in this regard have been incorporated into the proposal of the ICL and adopted by the mother.
Practical difficulty and expense involved in spending time with and communicating with the other parent
Other relevant facts or circumstances
There are no practical difficulties arising from either of the parent’s proposals for the child to spend time with the non-residential parent. There is some expense involved in the proposal of the ICL adopted by the mother, in relation to the child’s time with the father if that time is to be supervised at a contact centre and the father is to bear that expense as proposed. However, as the ICL’s orders, if made, would see the child spend time with the father only four times per year and the father is employed (and also as no submissions were made in this regard), I do not consider that any such expense will substantially affect the child’s right to maintain personal relations and direct contact with the father, although such contact will not be on a regular basis.
There are however significant practical and other difficulties involved in the child living with the father as he proposes, which I take into account as another relevant fact or circumstance pursuant to s 60CC (3)(m). I consider that the father’s oral evidence concerning his proposal that the child live at the premises he occupies was not child-focused and not capable of practical implementation. Even if it were the case that the father had discussed his proposal that the child come to live in his shared house, he showed no understanding of the impact upon the child of being separated from her primary and stable caregiver and brought to live with people who are effectively strangers to her. This is especially so as the father proposes that the child live in a part of the home to which he has no access, while he lives and works in another part of the home.
The father’s ill thought-out plan is also fraught with other practical difficulties. He was unable to ensure the child’s regular attendance at a school near his home when she lived with him in the past and his current proposal involves facilitating her attendance at a school some distance from their home between attending to his allied health role and attending his workplace. The home, school and father’s workplace are in three different parts of Sydney. At some stages in his evidence, the father suggested that he would drive between his home, the child’s school and his workplace, although he then conceded that he did not own a car. His evidence that he intends to purchase a car cannot be accepted in light of his other evidence concerning his significant level of indebtedness.
At another stage in his evidence, the father appeared to suggest that he would obtain accommodation for himself and the child in a location close to the school which he wished for the child to attend. He had taken no steps to obtain accommodation in this area and his understanding of the costs involved appeared fanciful. Once again, the father showed no understanding of the impact on the child of a change in both home and school together with the separation from the mother.
The father also adduces no evidence from which I would be satisfied he now has the capacity to exercise sufficient authority over the child to ensure her attendance at school if she expresses reluctance. The evidence is to the contrary, that is that the father’s mental state has deteriorated in a manner which is likely to be adversely affecting his everyday functioning and capacity.
Maturity, sex, lifestyle and background including culture and traditions of the child and either parent
The child now aged nine, has had the advantage of being able to enjoy her Country B cultural heritage when living in Country B and in Australia, as both of her parents clearly consider this an important right for the child and part of her identity. The parents, through gaining permanent resident status for themselves and the child have also facilitated the child enjoying the benefits of life in Australia and intend that she becomes an Australian citizen.
The mother and father have the same cultural and ethnic heritage and practice the same faith. They have ensured that the child has enjoyed the traditions of her cultural heritage and faith regardless of her parenting arrangements. The child will be able to continue receiving the benefits of her cultural heritage if orders are made as proposed by both parties.
Attitude to the child and responsibilities of parenthood demonstrated by each parent
I have no doubt that each of the parents love the child and genuinely believe that the orders that they each promote are those that meet the child’s best interests. Although the expert identified many risks associated with the father’s behaviour and parenting, she was unchallenged on her assessment that the child had an equally strong attachment to both parents and that there are some positive features of the child’s relationship with him[11]. The expert assessed the mother’s approach to parenting and understanding of the child’s needs including the need to have a relationship with the father as particularly impressive. All of the evidence indicates that the mother has an equally impressive attitude to the responsibilities of parenthood.
[11] See paragraph [284] of these Reasons.
As previously noted, no particular findings were sought and effectively no submissions were made on the father’s behalf. To the extent that his evidence suggests the mother rejected or abandoned the child in 2019, I am not satisfied that this was the case. I am satisfied that the only reason the mother did not come to Australia with the father and child in January 2019 was because she did not hold a valid visa to do so and after April 2019 when her visa was granted, she was deceived by the father to believe that this had not occurred. The mother attempted to maintain her relationship with the child after April 2019, but the father prevented this occurring on the spurious basis that either the mother herself or the child did not pursue that relationship.
Even if it were the case that the child was expressing negative sentiments about her relationship with the mother in 2019, it was unreasonable and irresponsible for the father as a parent to have acquiesced to these expressed views of a young child. Similarly, the father’s actions fell well short of a responsible parent when he acquiesced to the child’s statements of not wishing to attend school when she was in his care, especially as it would appear that the child made statements along these lines as she perceived that this would meet the father’s rather than her own needs.
Family violence relating to the child or a member of the child’s family
Family violence and its significance in this dispute has been dealt with at length in these Reasons.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child
I am of the view that the orders proposed by ICL and mother are least likely to lead to the institution of further proceedings in relation to the child, but this is not a particularly weighty factor in the circumstances of these proceedings.
I consider that the orders proposed by the father, if made, would be highly likely to lead to the institution of further proceedings, as it is likely that the father would experience difficulties in having the child spend time with the mother as he proposes under the orders. I accept the unchallenged evidence of the expert that the father made significant efforts to alienate the child from the mother when the child lived with him, that the nature of the child’s relationship with the father is one in which she acts in a manner to meet the father’s perceived needs, including the need to align herself with him and that over time the child’s relationship with the mother would break down. Given the father’s lack of appropriate authority over the child to ensure even when she was much younger that she attend school, I consider it highly unlikely that he will ensure that the child spends time with the mother if orders are made as he proposes.
In the foregoing circumstances, it is more likely that the mother will institute contravention proceedings or initiate further proceedings in relation to the child than if orders are made as she and the ICL seek. However, the orders proposed by the ICL and mother are extreme orders that if made will foster the child having a relationship which will assist her only in understanding her identity with her paternal side rather than foster her relationship with the father that is meaningful. While I attach some limited weight to the fact that this proposed arrangement is least likely to lead to the institution of further proceedings with respect to the child it is far less weighty than those factors that directly relate to the child’s wellbeing and the need to protect her from harm under each of the proposed arrangements.
It is to be noted that the orders proposed by the mother and the ICL include both an order allowing the mother to obtain a passport for the child and to travel outside of Australia without the father’s consent and an order placing the child’s name on the Airport Watchlist (which would practically restrict her ability to travel outside of Australia with the child). In oral submissions, counsel for the ICL submitted that while these orders on their face appear inconsistent, both orders are sought so in future if the mother wishes to travel with the child internationally she is only required to bring an application to the Court to remove the child’s name from the Airport Watchlist and not to additionally seek an order that she be permitted to travel with the child. The mother gave oral evidence that while she wishes to travel to Country B with the child, at this stage she has significant concerns that she may have difficulty in returning to Australia for a number of reasons. First, the mother has concerns that if she travelled to Country B with the child the father would travel to Country B soon after and may apply for a stay order, requiring the child to remain in Country B. Second, the mother gave evidence that the extended paternal family live nearby to the extended maternal family and it is the mother’s belief that if she travelled to visit her family with the child, the paternal family would become aware that she and the child were in Country B. The mother further stated that she believes that the extended paternal family would attempt to remove the child from her care including physically doing so. In these circumstances, I accept the submission of the ICL that it is appropriate to make both orders as she proposes.
CONCLUSION
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
In Goode & Goode[12] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[12] (2006) FLC 93-286.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, 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 for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA (2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for the child (subsection 61DA (4)).
The father seeks an order that the parents equally share parental responsibility while the ICL and mother seek an order that the mother have sole parental responsibility.
The presumption of equal shared responsibility does not apply in light of my findings that the father has engaged in family violence.
Having regard to all of the evidence and findings as discussed and attaching particular weight to my findings concerning family violence and the risks posed by the father to the child and the absence of any evidence about the parties’ capacity to make joint decisions concerning the child, I am easily satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for the child.
The mother is a responsible, dedicated and child-focused parent and it will be in the child’s best interests for her to have all of the duties, powers, responsibilities and authority which by law parents have in relation to the child.
As to the balance of parenting orders, for all of the Reasons given in relation to the child’s best interests and on the basis of my findings and the expert’s opinion, I am satisfied that the orders proposed by the ICL and supported by the mother are proper and in the child’s best interests. Accordingly, I make the orders set out in the forefront of this Judgment.
I certify that the preceding three hundred and eighteen (318) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 15 May 2023
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