Samad & Haider
[2022] FedCFamC2F 1256
Federal Circuit and Family Court of Australia
(DIVISION 2)
Samad & Haider [2022] FedCFamC2F 1256
File number(s): PAC 3296 of 2020 Judgment of: JUDGE STREET Date of judgment: 16 September 2022 Catchwords: FAMILY LAW – PARENTING – final hearing – where the parties had one child aged 2 in the context of a very short relationship – where the Child is of a young age – where the Father had no earlier contact and then ceased supervised time with the Child – allegations of family violence – whether there should be shared parental responsibility – who the Child should live with – whether a supervised access regime between the Father and the Child – graduated time periods for meaningful relationship – change of name Legislation: Family Law Act1975 (Cth) pt VII ss 4, 4AB, 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 60CG, 61C(1), 61DA, 61DA(1), 61DA(3), 64B, 65DAA, 65Y, 65Y(1)(c)(ii) Cases cited: Chace & Huxley [2021] FedCFamC1F 26
Goode & Goode [2006] FamCA 1346
Division: Division 2 Family Law Number of paragraphs: 76 Date of hearing: 7-9 September 2022
12 September 2022Place: Parramatta Counsel for the Applicant: Ms R Druitt Solicitor for the Applicant: Farrah Lawyers, Solicitors & Barristers Counsel for the Respondent: Mr S Richardson Solicitor for the Respondent: Thurlows Family Lawyers Counsel for the Independent Children’s Lawyer: Ms S Hayward Solicitor for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
PAC 3296 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SAMAD
Applicant
AND: MS HAIDER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE STREET
DATE OF ORDER:
16 September 2022
THE COURT ORDERS THAT:
1.All earlier parenting orders are vacated.
2.The Mother shall have sole parental responsibility for the child X, born in 2020 (“the Child”).
3.The Child live with the Mother.
4.That the Father shall spend time with the Child as follows:
(a)Attending the D Program run by B Counsellors Suburb C for six supervised times once a fortnight for 2 hours over a period of approximately three months, and to that end the parties shall:
(i)Within 14 days of the date of these Orders each contact the D Program, complete and submit any necessary application form and arrange any necessary appointments for intake and assessment for suitability for the Father to spend supervised time with the Child;
(ii)Attend the intake assessment as directed by the D Program;
(iii)Comply with any appointments made by the D Program for supervised time;
(iv)Comply with all reasonable policies, rules, requests and directions of the staff of the D Program.
5.That the Father shall be solely responsible for all costs of spending supervised time with the Child.
6.That upon the conclusion of six supervised times by the Father pursuant to Order 4 above, the Father spend time with the Child unsupervised, as agreed between the parties in writing or failing agreement as follows:
(a)On the Child’s birthday from 2pm to 4pm;
(b)For a period of two months, from 10am to 12pm on a day to be agreed between the parties in writing and failing agreement, each alternate Saturday;
(c)For a period of four months, from 10am to 2pm on a day to be agreed between the parties in writing and failing agreement, each alternate Saturday;
(d)For a further period of 6 months, from 10am to 5pm on a day to be agreed between the parties in writing and failing agreement, each alternate Saturday;
(e)Following time in Order 6(d), each alternate weekend on both Saturday and Sunday from 10am to 5pm until the Child reaches 6 years of age;
(f)After the Child’s sixth birthday, from 10am Saturday until 5pm Sunday each alternate weekend;
(g)After the Child’s seventh birthday, from 3pm Friday or after school until 5pm Sunday each alternate weekend;
(h)After a further six months:
(i)From 3pm Friday or after school until 9am Monday or before school each alternate weekend during school terms; and
(ii)For an additional 2 nights each school holiday period following terms 1, 2 and 3 to be agreed between the parties in writing or failing agreement, from the last day of the school term until the following Wednesday at 9am; and
(iii)For 5 nights in each school holiday period following term 4 as agreed between the parties in writing and failing agreement, from 10 to 14 January each year.
7.That the Father be permitted to attend two events per calendar year, which parents are ordinarily invited to attend at school, or in which the Child participates at school or as an extra-curricular activity; on the condition that the Father shall first:
(a)Advise the Mother of his intention to attend the event no less than 7 days prior;
(b)The Mother shall respond within 5 days prior to the event.
8.If the Father fails to comply with Orders 4 and 5, the proposed regime under Orders 6 and 7 is suspended, as is the ability of the parties to agree in writing to the contrary, until the Father has completed the six supervised times in accordance with Order 4.
9.Any changeover which is to take place other than at the Child’s school be at McDonald’s Suburb E or such other location as agreed in writing by the parties.
10.That the Father be permitted to receive information usually provided by schools to parents including copies of reports, newsletters and school photographs, at his sole cost.
11.That the parties communicate by the smartphone application ‘Appclose’ or such other smartphone application which facilitates communication between parents as agreed in writing by the parties in respect of the welfare and parenting arrangements for the Child only.
12.That the Mother continue to attend upon her treating medical practitioners, including but not limited to her psychiatrist, psychologist and her general practitioner as directed by them, and follow all recommendations and comply with any treatment as recommended by her treating medical practitioners.
13.That each parent be restrained by injunction from:
(a)Discussing these proceedings, or showing any document related to these proceedings, to the Child;
(b)Denigrating the other party, or members of the other party’s family to the Child or in the hearing or presence of the Child or permitting any other person to do so;
(c)Denigrating the other party to a sibling of the Child or a member of the Child’s family.
14.That the name of the Father being Mr Samad and his age of 40, being born in 1979, and if provided by the Father his occupation and place of birth, so as to be included as the Child’s Father in the Child’s birth certificate, and to that end, within 14 days the Mother shall do all acts and things to provide the Father with a copy of the application to correct the entry, and within a further 14 days, the Father shall provide a signed copy with his details included, and with photocopies of required identification documents, and that within a further seven days, the Mother shall lodge the application either by post or in person.
15.That the Mother also complete and lodge at the time of lodging the documents under order 14 a properly completed change of name form with the registry also attaching a sealed copy of this order changing the Child’s name so that the surname of the Child is “F”, deleting the surname “Samad”, and that the Child’s given name is recorded as “X”, and deleting the reference to “Samad” as given names.
16.For the purpose of s 65Y(1)(c)(ii) of the Family Law Act1975 (Cth), the parties may at any time take the Child X, born in 2020, to a place outside Australia after she attains the age of 6 years, provided that it is to a Hague Convention country, and that after the Child attains the age of 10 years, with the agreement in writing of the other party, to a non-Hague Convention country;
17.The Mother inform the Father within 28 days of decisions about the Child’s school, elective surgery, treatment of chronic conditions and other long-term medical issues of the Child, or other emergency affecting the Child.
18.That the each year, if not a time of the Father with the Child under the above orders, the Father spends time with the Child between 10am and 5pm on the Father’s birthday, Father’s Day, or other significant dates as are agreed between the parties in writing. And
19.That the Father’s time will be suspended, if not a time of the Mother with the Child under the above orders, so that the Mother spends time with the Child between 10am to 5pm on the Mother’s birthday, Mother’s Day, or other significant dates as are agreed between the parties in writing.
20.That once the Child is 6 years of age, the Child, if not a time of the Father with the Child under the above orders, is to spend the first day of Big Eid and the first day of Small Eid in even years between 10am and 5pm with the Father.
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 Samad & Haider has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET:
INTRODUCTION
These proceedings were commenced on 3 July 2020 in relation to the only child (“the Child”) of a short relationship between the Applicant Father (“Father”) and the Respondent Mother (“Mother”). The Child was born in 2020 and is now aged two. The Father had not spent any time with the Child since birth other than 4 supervised visits in 2021 under parenting orders. The father then ceased attending the supervised visits that were supposed to continue under order 3 the interim parenting orders 22 December 2020.
At the final hearing that took place over 7, 8, 9 and 12 September 2022. The Court heard cross-examination of the Father, the Mother, and the expert, Dr G, who provided a family report dated 7 July 2021, as well as a letter dated 5 July 2021 and a letter dated 15 July 2021.
The Issues
·Whether there should be shared parental responsibility;
·Whether the Child should live with the Mother or the Father;
·Whether, if the Child is living with the Mother, access by the Father should commence as a form of supervised access and, if so, the period of time and, thereafter, what graduated increases of significant and meaningful time should take place.
·Whether there should be a change of the Child’s name
·Whether and when overseas travel may commence with the Child
PROCEDURAL SUMMARY OF EVIDENCE
The Court received into evidence the Father’s affidavit dated 9 August 2022, as well as the Father’s notice of risk and tender bundle, and the family report dated 7 July 2021. The Court also received into evidence the Mother’s affidavit made on 3 August 2022 and the Mother’s notice of risk. The Court also received into evidence the Independent Children’s Lawyer’s (“ICL”) tender bundle which was marked Exhibit E, and the proposed final orders by the ICL were also marked as Exhibit G.
chronology
A relevant chronology is as follows:
Date Event 1979 Father born in Country H
1993 Mother born
2011 Father’s first child, J (mother Ms K) born, 11 years old at present
2012 Father’s second child, L (mother Ms K) born (almost 10 years old at present)
2014 Mother’s first child, M, born
2015 Father’s third child, N, mother Ms K, born
2016 Mother’s second child, O, born (six years old at present)
2019 Father’s fourth child, P, mother Ms K, born (three years old at present)
2019 Commencement of relationship between the Father and Mother, Islamic ceremony of marriage;
2019 The Child X is conceived
August 2019 Parties separate and divorce
November 2019 to February 2020 Father travels to Country H with children from prior relationship 2020 X, (sic), the Child of the parties is born
June 2020 Father attends Suburb E Police Station and he communicates with Suburb Q DCJ
17 June 2020 Mother is admitted to R Centre
June 2020 Father contacts DCJ seeking to become carer for the Child
29 June 2020 Father informed by DCJ that X has been placed with a friend
1 July 2020 The Child X returned to the Mother’s care from a friend 3 July 2020 Father files initiating application seeking parenting orders, parental responsibility, and the Child, X, reside with him
6 July 2020 Mother discharged from R Centre
19 August 2020 Mother’s response to the Father’s parenting orders seeking that the Father’s visits be supervised at a contact centre
December 2020 Mother files amended response for the Father to spend no time with the Child
22 December 2020 Interim orders by a senior registrar for the Father to have one hour per week access at the S Contact Service, supervised April 2021 The Father commences supervised time with the Child, X, at S Contact Service. July 2021 The parties attend FDR 23 July 2021 Supervised visits between the Child and Father ceased. 12 August 2021 The Father travels overseas to visit sick mother 14 April 2022 The Mother receives termination of Islamic marriage certificate. Father’s EvidencE
The Father gave evidence as to the circumstances in which he discovered the Child was in someone else’s care. The Court accepts the Father’s evidence that he was concerned as to the Child’s welfare in the bringing of these proceedings in which the relief he actually sought was that the Child live with the Father and that he have sole parental responsibility.
In the course of his oral evidence, it is apparent that the Father acknowledged that, if there was no risk to the Child, he did not take issue with the Child living with the Mother. The Father explained the source of his concerns as to the Mother’s mental health and, effectively, wanted the Child to spend supervised time with the Mother.
Consistent with the initiating application, the Father’s case outline contended the Father to be the preferable parent due to the Mother’s alleged fragile mental health and alleged lack of family support. Father sought orders for a full psychological assessment of the Mother’s mental health and parenting capacity and then for there to be supervised time in accordance with dates nominated by the coordinator of the S Contact Service with the costs to be met equally. The Father also sought orders for the parents to keep each other informed of mental problems and illnesses and other material events, relevantly, including their telephone contact number, and for the correction of the Child’s birth certificate by adding the Father’s name and identifying the surname of the Child as “F” and the first name as “X”.
The case outline on behalf of the Father also identified alternative proposed orders if the Court found that the Child was not at risk with the Mother. The alternative orders advanced shared parental responsibility, with the Child living with the Mother. The orders proposed that the Father then spend time with the Child on a graduated basis for four weeks: two hours every Saturday, then for four weeks: every Saturday for four hours, and then for four weeks: every Saturday for eight hours, and then for four weeks: from 10 am Saturday till 6 pm Sunday. Then, until the Child commences school, every Wednesday from 2 pm until 6 pm and every second week from 10 am Saturday until 6 pm Sunday. Then, in relation to when the Child commences school:
·Week 1: Wednesday after school or 3 pm until Thursday before school;
·Week 2: Friday after school, 3:30 pm, until Monday before school or 9 am;
·For one half of each term holiday period as agreed and, in default, for the first week in odd years and the second week in even years;
·For half of the long summer school holidays as agreed and, in default, in fortnightly blocks;
·For the first day of Big Eid and Small Eid in odd years, and the second day of Big Eid and Small Eid in even years; and
·At such other times as agreed between the parties.
The proposed place of changeover in the Father’s orders was Suburb E McDonald’s or the Child’s school.
The Court accepts the Father’s evidence that he has not pursued female circumcision with his other two daughters and accepts the evidence that he would not permit such a procedure on the Child whether in Australia or overseas. The Father’s evidence that he had taken his other two daughters to Country H without any such process being considered supports that evidence. The Father understood that such procedure is illegal and said whether or not illegal, no such procedure would be undertaken on the Child. The Court finds that the Child faces no risk of female circumcision from the Father.
The Father’s evidence in relation to the circumstances in which he came to cease spending supervised time with the Child are unsatisfactory. The reason offered by email by the Father to the contact centre was financial difficulties. The reasons in his affidavit descended into his own personal anxiety and the stress in having supervised access. The Father’s oral evidence conveyed a belief of entitlement to unsupervised access to the Child. The Father then gave oral evidence that, if the Court were to make orders for an initial period of supervised time, he would comply with the same and then changed his evidence in this regard to indicate that he would not comply with the same.
The Father’s evidence in relation to his willingness to persist in a limited period of supervised access showed little, if any, insight by the Father as to the best interests of the Child. The Father’s answers to the Court reflected controlling behaviour by the Father in seeking to dictate what he believed to be best for the Child, regardless of what the Court might order. The Court is satisfied that as a result of this lack of insight and controlling behaviour and as supported by the expert evidence of Dr G, the Child should live with the Mother and not the Father.
It is apparent from the Father’s affidavit that the real source of his cessation of the supervised access, notwithstanding that there were orders in place for him to do so, was the refusal of the Mother to agree to the Father’s requests that the time be unsupervised. When the Father did not obtain the Mother’s agreement for unsupervised access to the detriment of his own child, he ceased attending the supervised access. This is greatly to be regretted.
The access notes at the supervised centre identify an initial difficulty of unfamiliarity of the Child with the Father on the first occasion. That visit was cut short due to the Child crying, and the Father returning the Child to be with his Mother after about half an hour. The second, third and fourth visits appear to have been constructive in the building of a bond with a two year old Child in respect of whom the Father otherwise had no relationship.
The Father’s assertions in evidence that the Child would remember him are simply not credible. The proposition that a Child who had earlier been distressed in the first contact visit should resume visits with the Father without the benefit of any supervision or observation reflect a very limited understanding by the Father of his parental responsibility to advance the best interests of the Child. The Father’s repeated evidence in cross-examination that he would be unable to participate in supervised access was one that revealed a misplaced entitlement by the Father rather than an understanding of his parental responsibility to advance the best interests of the Child.
There was evidence also from the Mother in relation to controlling behaviour during the course of the relationship including impeding communications with the father of her other children, derogatory and critical remarks and absence of any real or significant emotional and financial support. The relationship was extremely brief. The Father in cross examination said there were a few occasions of sexual intercourse. The Father in his affidavit said the relationship ceased after six weeks as he had enough and said that they had sexual relations during this period. It is apparent that the Child, X, was conceived during that brief relationship. There was a contest advanced in relation to a more serious allegation of physical family violence, which is unnecessary for this Court to decide. The reason it is unnecessary is that the parties in their evidence made relevant concessions that identified the ability of the Court to make final orders without descending into the determination of an issue that was not necessary for deciding the best interests of the Child and making orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”). Because the Court does not propose to make a finding on that issue, the Court has not descended into the evidentiary detail of the competing contentions advanced by the parties in respect of that alleged physical family violence.
However, the Father’s affidavit makes clear a level of controlling behaviour by the Father in circumstances where he refers to there having been arguments and his decision to terminate the relationship. The Father gave evidence as to those arguments concerning the time he was spending with the Mother and financial support. The Court is not satisfied that that was the whole of the source of the arguments taking place between the parties. However, the Court does find that the Father raised the proposed divorcing of the Mother as a controlling factor of the Mother in the course of that brief relationship.
The Court is satisfied that the Father engaged in controlling conduct during that short period of the relationship. There was competing evidence about other communications relating to the physical allegations, but it is not necessary to determine those issues.
Allowing for the cultural differences and evidence being given through an interpreter, the Court finds that the Father was willing to change his evidence if he believed it would advance his interests. In this regard, the Father gave evidence in relation to the supervised access that he always paid for the same and that there was no financial difficulty. This was contradicted by the email sent by the Father to the child support centre upon which the Father was cross examined. The Father’s further evidence about his more difficult financial circumstances have more limited credibility, given the two trips he has taken to Country H in approximately the last 12 months and the time that he has spent there.
It is not necessary for the Court to determine the core alleged physical family violence allegation between the parties, but the Court does find that, during the relationship, there was controlling behaviour by the Father in relation to the Mother. The Court finds that similar controlling behaviour has been engaged in by the Father in seeking to dictate the circumstances in which his access to the Child should recommence. In this regard, the Court finds that the Father was an unsatisfactory witness in relation to his reasons for the cessation of supervised access as required under orders of the Court and was an unsatisfactory witness in relation to his alleged financial difficulties. The Court finds that the Father was an unreliable witness in relation to his allegations of stress and anxiety in relation to the supervised access. The Court also finds the Father an unreliable witness in relation to his alleged unwillingness to comply with Court orders in respect of supervised access.
However, the Court does accept that the Father has a genuine concern as to the wellbeing of the Mother in respect of her ability to parent their Child. The Court does not, however, accept that the Father’s concerns identify any proper on-going evidentiary basis beyond the period that the Mother spent at the R Hospital from 17 June 2020 to 6 July 2020. The placing of the Child into the care of a friend for a period of approximately two weeks voluntarily by the Mother does not identify a proper basis for the ongoing concerns expressed by the Father as to the mental health and parenting ability of the Mother. To the extent that the Father sought to characterise the Mother as still having mental issues impacting on her ability to parent, the Court rejects that evidence as unreliable.
mother’s evidence
The Mother has been the sole carer for the Child since birth and is the primary carer of her sons. The Mother gave evidence that explained the circumstances in which she came to be admitted to the R Hospital, the improvement of her mental health, the cessation of medication and her current regime of seeing a psychologist and having a local GP. The Mother impressed the Court as a person having genuine and real insight as to her role as a parent and her parental responsibility and, in particular, advancing the best interests of the Child, X. The Mother was willing to show the Child a picture of the Father and in due course her paternal half siblings.
The Court accepts the Mother’s evidence as to there being controlling behaviour by the Father during the short relationship. The Parties did not live together. The Mother saw the Father only 3 or 4 times and the Mother identified having sexual relations on only 2 occasions. For the reasons already given, it is not necessary for the Court to resolve the dispute thrown up on the parties’ evidence in respect of the alleged physical family violence. That is because of the evidentiary concessions made and future insight by both parties as to the best interests of the Child. In this regard, the Father conceded that he had no issue with the Child living with the Mother if she was well.
The Mother identified an ability to put behind her and segregate the former allegations, and to move forward with steps to facilitate a meaningful relationship between the Child and the Father by a period of supervised time, and progressing thereafter with more significant and meaningful time. For the reasons given, it is not necessary for the Court to make findings about the circumstances in which the text messages were sent, or in relation to the contents of the same beyond knowledge of pregnancy. The Court finds that the Father was aware that the mother was pregnant at or about the time of divorcing her. The issue of consent is not determined by text messages. Consent may be withdrawn at any time. The Court does not need to determine the issue of consent or alleged inconsistencies or delay in complaint or the different evidence adduced on these issues. The evidentiary concessions by the parties make it unnecessary and unhelpful to decide this historical non-determinative issue given that the Court is focused on the current and future best interests of the Child.
The Court does accept the Mother’s evidence in relation to the controlling behaviour as to threats of divorce being raised by the Father during the very brief relationship and divorcing the Mother knowing she was pregnant. This controlling behaviour falls within the meaning of family violence. The Court also accepts that the Father engaged in controlling behaviour in the context of the cessation of the supervised access to the Child, in circumstances where the Mother had not agreed to his communications seeking unsupervised access to the Child.
The Mother also gave evidence as to her resilience and ongoing ability to cope. The Mother identified a preference not to change the existing name of the Child. However, the Court finds that a change of name as sought by the Father would not undermine the resilience or ongoing capacity of the Mother to care and perform her parental responsibility for the Child X.
The marriage and divorce were undertaken in Australia under Islamic religious law and did not comply with the governing laws of Australia for marriage or divorce. This non-compliance with Australian laws of marriage and divorce in this case enhanced the opportunity for controlling behaviour and family violence.
Dr G
Dr G, who has been an outstanding expert for many years, prepared a detailed and helpful family report and two further letters and gave extensive helpful and perspicacious evidence to the Court on the issues raised between the parties. Again, it is not necessary to summarise the whole of Dr G’s evidence beyond identifying that Dr G, having seen the GPs records in relation to the Mother, was satisfied as to the Mother’s mental health and her ability to perform the parental responsibilities, and that the Child should live with the Mother. The Court accepts that evidence of Dr G.
Dr G also characterised the conduct of the Father in the cessation of the supervised visits as being to the detriment of the best interests of the Child. Dr G also identified the potential concern as to the Father’s ability to exercise parental responsibility in circumstances where he was willing to engage in controlling behaviour in relation to supervised access, and lacked insight in relation to the best interests of the Child. Dr G identified the importance of a parent complying with a supervised access regime in order to move forward to more meaningful and significant time. Dr G referred to the small amount of pain by the parent to the significant gain of the Child in participating in that supervised access and permitting the appropriate rekindling of bond between the Father and the Child.
Dr G also identified that the failure to continue the supervised access was to the significant disadvantage of the Child and was not in the Child’s best interests. Dr G identified the concern as to the Father’s inability to participate in some brief period of discomfort compared to the potential long-term detriment of the Child, if the relationship was not one that was rekindled. Dr G postulated who was the adult in the room. It is apparent from Dr G’s evidence that the conduct of the Father in purporting to contend that he would not participate in supervised access in order to move forward with more significant and meaningful time would be potentially very much to the detriment of his own Child and her best interests.
Given that the Child has not formed a relationship at this stage with the Father, Dr G maintained that some level of supervised access was necessary to rekindle the bond. Dr G did not accept that a Child at the age of two, where the limited supervised access had ceased, would still have a bond in relation to the Father. The Court accepts the evidence of Dr G and that it is necessary for the Child to resume a bond with the Father in a safe supervised environment.
Evidence was adduced as to there being a cost-free observed community service facility described as a D program run by B Counsellors Suburb C that could facilitate a level of observed supervision without the cost that would be incurred at the S Contact Service. The brochure for the B Counsellors Suburb C observation service was tendered into evidence and was also provided to Dr G. The Court accepts Dr G’s evidence that this would be a satisfactory form of supervision to facilitate the re-bonding of the Father with the Child, provided that the Father participates in the same.
Dr G identified a concern in relation to the Father’s lack of insight and controlling behaviour as impacting on the duration and speed at which there should be steps advancing the meaningful time between the Father and the Child. The Court accepts Dr G’s evidence that the supervised time should come to an end as soon as practicable. The Court finds that six supervised visits once a fortnight, for a period of approximately three months, for two hours should be a sufficient period for the Father to re-establish his bond with the Child, notwithstanding her young age. The Court notes that the Mother wanted a longer period of supervision for six months. The Court finds that this longer period of supervision is not appropriate as it presents the very real risk that the Father may fail to continue and complete the same, as a result of which there would be a real risk of damage to the Child. The Child may not only feel abandonment and assume some blame for the Father having ceased to continue his contact with the Child, but this could provide significant ongoing adverse effects to the Child.
The Court accepts the evidence of Dr G that it is very much in the interests of the Child X for the Father to participate in the short period of discomfort of supervision so as to advance the best interests of the Child and to then facilitate the growth of that relationship through significant and meaningful time in a graduated way. The Court accepts the evidence of Dr G that, given the Father’s controlling conduct and lack of insight to which the Court has referred, that overnight time should not commence until the Child has reached the age of six. Dr G also referred to the parties undertaking alternate periods attending school events or other significant occasions.
Submissions of the Father
The Father advanced submissions that, if there was found to be a risk to the Child in relation to the Mother, then the Child should live with the Father. It was submitted that the evidence of Dr G might be accepted as having addressed such a risk, albeit that it was pointed out that no proper evidence was adduced from the psychologist who the Mother had been seeing. The absence of that material is diminished given the objection by the Father to the attempt to adduce that evidence which was upheld on the grounds of late notification.
The Father presented alternate orders, as referred to earlier, if the Court were to find that the Child should live with the Mother. It was submitted that there should be shared parental responsibility, and it was also submitted that the commencement of time should progress without supervision. It was submitted that there should be a change of surname for the Child and that overseas travel orders should apply equally.
Submissions of the Mother and ICL
In substance, the Mother adopted the submissions of the ICL, seeking that the Mother have sole parental responsibility, that the Child live with her, and that supervised time between the Father and the Child commence through the D program run by B Counsellors Suburb C. The Mother sought a period of six months, whereas the ICL sought a period of three months.
The Court notes that the ICL had initially proposed a series of provisos in relation to the sole parental responsibility. The Court raised with the ICL that these this appeared to be contrary to the statutory pathway in terms of the proposed provisos. Those provisos were not pressed by the ICL in respect of the sole parental responsibility of the Child being with the Mother. However, it was suggested that the Court should make orders in relation to information to be provided to the Father.
In substance, the Mother and the ICL sought similar orders in relation to the graduation of time and also in relation to communications concerning events. The ICL initially proposed an order that the Father spend no time with the Child if there was a failure to comply with proposed orders in relation to supervision. The Court raised its concern with that proposed order, and the ICL identified a willingness to adopt a suspension regime if there was a failure of the Father to comply with the proposed supervision, albeit suggesting that there should be a time period introduced in that regard. The Court is satisfied that an order making clear the need for six supervised visits over a period of approximately 3 months is sufficient to re-establish the paternal bond.
The Mother and the ICL both advanced a proposed location for changeover and procedural orders in relation to the Father being informed concerning relevant school matters and the use of a smartphone application for communication between the parties. The benefit of that smartphone application is that the communications through that third party entity are, relevantly, recorded by the third party, and it also diminishes the scope for discord and dispute between the parties as well as preserving the privacy and confidentiality, relevantly, in this case of the address, email and telephone details of the Mother.
There is a proposed order for the Mother to continue with relevant treatment and proposed orders for restraining inappropriate communications. It was accepted that that should be extended to denigrating the other party to other siblings or relatives of the Child.
The parties all agreed on the correction of a birth certificate to include the Child’s father’s name. The ICL took no position in relation to the name change sought by the Father. The Mother opposed the name change, and reference was made to a potential concern as to the impact of the use of the Father’s name, potentially, every day by the Mother.
It was also identified that there would be utility in the parties undertaking the Keeping Kids in Mind course, to be completed within 12 months. The Court heard submissions that, because the Mother had parental responsibility, there is no need for any order in relation to the issue of an Australian passport. The Mother sought an order facilitating her being able to take the Child to a place outside Australia but not a non-Hague Convention country.
The Law
Part VII of the Act sets out the provisions relating to children, and s 60B sets out the objects of the Act and the principles to be applied. Section 60CA of the Act provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders.
Section 60CC of the Act sets out how the Court is to determine what is in the child’s best interests by reference to the primary considerations set out in s 60CC(2) of the Act, being the benefit of the child having a meaningful relationship with both the child’s parents and the need to protect the child from physical or psychological harm or being subject to or exposed to abuse, neglect or family violence. The additional considerations in s 60CC(3) of the Act include the nature of the relationship between the child and each parent and others, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with each parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the child, and any other relevant facts or circumstances.
The Court notes that, in applying the primary considerations, the Court must give greater weight to the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence under s 60CC(2A) of the Act. The Court has taken into account the definition of abuse in s 4 and the meaning of family violence in s 4AB of the Act.
In considering what order to make under s 60CG of the Act, the Court, to the extent possible, is to ensure that the order does not expose a person to an unacceptable risk of family violence, and enables the Court to include in the order any necessary safeguards. The Court has also taken into account the statutory pathway identified in Goode & Goode [2006] FamCA 1346 at 65.
In relation to pt VII of the Act, the Court must take into account, subject to the orders of the Court, that each parent has parental responsibility under s 61C(1), the presumption that is potentially triggered under s 61DA, and the consequences that apply if it is appropriate to apply the presumption under ss 61DA(1) and 61DA(3) or if rebutted under ss61DA(4). The Court must also take into account the consequences when the presumption is applied, the meaning of the Act in relation to substantial and significant time, and the meaning in relation to reasonably practical in s 65DAA of the Act. If the presumption under s61DA is rebutted s65DAA doesn’t have application so that Court is not expressly required to go on and consider either equal time or substantial and significant time.
analysis AND FINDINGS
The Court finds that the Child should continue to live with the Mother and that the Child should not live with the Father. This findings is based on the lack of insight and controlling behaviour of the father as referred to above as well as the expert evidence. In the present case, the Court finds that the presumption under s 61DA of the Act has no application because there are reasonable grounds to believe that the Father has engaged in family violence in the nature of controlling behaviour. The Court also finds that the presumption is rebutted as the Court is satisfied that it would not be in the best interests of the Child for the parents to have equal shared parental responsibility. These finding is based on the Mother’s evidence, the lack of insight by the Father in relation to supervised access and the cessation of the same and the evidence of Dr G. The Court finds that there is no risk to the Child for the Mother to have sole parental responsibility and for the Child to live with the Mother.
The Court is not satisfied that the Mother has any continuing mental health issues that give rise to an unacceptable risk if the Mother has sole parental responsibility and if the Child lives with the Mother.
The Court is of the view that the Child will be able to have a meaningful relationship with both parents if the Father participates in the graduated orders starting with six visits over a brief 3 month period of supervision for starting development of a meaningful relationship and paternal bond with the Child. Given the very young age of the Child, the Court is satisfied that it is in the best interests of the Child for there to be an initial short period of six supervised visits with the Father to rebuild a bond with the Child.
The Court has taken into account the conduct of the Father in ceasing the earlier supervised access, notwithstanding the existence of earlier orders, which was a level of controlling behaviour, which the Child should be protected from. This is not a case where the Child is of an age to express any views. However, the Court has taken into account that, on the first occasion of supervised access, the Child was clearly distressed and crying.
The Court accepts the evidence of Dr G that the Child would not have a continuing bond and knowledge of the Father, and that it is necessary for there to be a short period of supervised access to re-establish the bond between the Father and the Child. The Court also has accepted the evidence of Dr G as to the significant detriment to which the Father would be subjecting the Child to if he fails to participate in that short period of six supervised visits. The adverse consequences for the Child in terms of paternal neglect and self-esteem and her future well-being significantly outweigh any purported distress or anxiety that the Father may have to undergo in the brief period of supervision for six visits under the orders to be made by the Court.
The Court has taken into account that the Father has not established a relationship with the Child, and that the four visits that he had under supervised access occurred at a period of time that means there is no existing bond or relationship between the Father and the Child, notwithstanding the Father’s belief to the contrary.
The Court has taken into account that the Father failed to take up the opportunity to complete the supervised access as was required under the earlier orders. It is now incredibly important for the Father, in order to advance the best interests of the Child, to spend a brief period of supervised time over six visits and then, on a graduated basis, to spend increasing time with the Child, including introducing the Child’s siblings from the Father’s other relationship, and to communicate with the Child on a regular basis.
The Court has taken into account the evidence in relation to the very brief period when the Mother had to hand the Child over to a friend for part of the time while she was in hospital. The Court has accepted the Mother’s evidence as to her current wellbeing and mental capacity to meet the emotional and physical needs of the Child which is also supported by the evidence of Dr G.
The Court has also taken into account the likely change in the Child’s circumstances as the Child progresses through the education system, and the benefit likely to be obtained from developing a meaningful relationship with the Child’s siblings.
The Court has taken into account the practical difficulty and expense in the supervised access. In that regard, the proposed supervision or observation is at a location which is run at Suburb C by B Counsellors without charge (or significant charge) and would facilitate the very brief period of supervision over six visits which the Court finds is required to rebuild the initial bond between the Father and Child before progressing to unsupervised time.
The Court finds that the Mother does have the capacity to provide for the needs of the Child, including emotional, physical and intellectual needs. Notwithstanding the Court’s observations about the Father’s controlling behaviour, provided that the Father undertakes and completes the brief period of supervision required for the benefit and best interests of the Child, the Court is satisfied that the Father can provide for the needs of the Child, including emotional, physical and intellectual needs.
The Court has taken into account the young age of the Child and the absence currently of a relationship with the Father. This is not a case where then there is any issue in respect an Aboriginal child or Torres Strait Islander child. The Child is too young to express an attitude beyond the observation that was made as to the distress on the first visit by the Father under the supervision that ceased.
The Court has taken into account the notices of risk and has made a finding of controlling behaviour in relation to family violence between the Mother and the Father. The Court finds that it is not necessary to make any other finding in respect of contested alleged physical family violence. The Court has taken into account that the controlling behaviour has occurred in circumstances of the short duration of the relationship and then during the Father’s endeavour to have immediate unsupervised time with his very young Child. The Court has also taken into account what might be least likely to lead to the institution of further proceedings.
Accordingly, the Court finds that it is in the best interests of the Child that the Mother should have sole parental responsibility for the Child X, and that the Child should live with the Mother.
The Court finds that it is in the best interest of the Child that the Father should spend time with the child initially for six supervised visits over approximately three months through the D Program run by B Counsellors, Suburb C. The Court finds that the Father has the capacity to and should meet the costs, if any, of that supervised time.
The Court finds that, after the six supervised time visit over the period of approximately three months, there should be a progression of meaningful time during the day until the Child reaches the age of six, and then a further progression when the Child reaches the age of seven, and a participation on an alternate basis in school events. The Court has also taken into account that the Father was earlier able to undertake four visits in 2021 despite his alleged discomfort. The Court that the burden imposed by the Father repeating that exercise of four supervised visits and two additional supervised visits due to his failure to continue to comply with the earlier supervised access parenting orders is of short duration and is a relatively brief burden for the benefit of his daughter as determined by this Court. The Court has also taken into account the ability of the Father to seek professional counselling, psychological or other expert help in undertaking the required six supervised visits, which was not a step he took in 2021.
The Court does not accept the submission that was advanced that the sole parental responsibility of the Mother should be on a proviso of the kind identified in the ICLs proposed order. Given the controlling conduct which the Court has found to be family violence, the Court is satisfied that the parties do not have the ability to co-parent, and to introduce a notifying and consultation regime would be likely to lead to the development of fresh disputes.
The Court finds that there is no unacceptable risk that would warrant an order for the Child to be the subject of orders for sole parental responsibility in favour of the Father or for the Child to live with the Father, in the circumstances where the Child has been living with the Mother, and to which the Court has referred. The Court is satisfied that the proposed orders of the Father for him to have sole parental responsibility or shared responsibility, or for the Child to live with him, are not in the best interests of the Child.
The Court does not accept that there should be a no-time order if the Father fails to comply with the opportunity for supervision. The Court expects its orders to be complied with. A failure to comply with the Court’s order in respect of supervised access over six visits can give rise to the Father being the subject of a contravention application. Such an application is a far more appropriate remedy than to entrench a no-time order, as was in the ICLs proposed order.
However, the Court is satisfied that, if the Father has failed to comply with and undertake the supervised access, the progression to more meaningful time with the Child, including facilitating the parties agreeing on significant and meaningful time, is to be suspended until the Father has completed the six fortnightly supervised visits, which is the subject of the Court’s order.
The Court is satisfied that changeovers should take place at McDonald’s Suburb E, and that the Father should receive appropriate material from the school. The Court is also satisfied it is appropriate to make orders for communication by the smartphone application “AppClose”.
The Court is also satisfied that it is appropriate to make orders for the Mother to continue to attend upon her medical practitioner, psychiatrist and psychologist, and general practitioner, as directed by them.
The Court is satisfied that it is appropriate to make non-derogation orders of the parties in respect of each other, and to expand the ICLs orders to include denigrating the other party to a sibling of the Child or other family member of the Child.
The Court is satisfied, taking into account the principles identified in Chace & Huxley [2021] FedCFamC1F 26, and in particular, the best interests of the Child as identified in the statutory regime, the short-term and long-term effects of any change of name, issues of embarrassment if the name were different, issues of confusion of identity, and the effect of any change of name, that it is appropriate that there be a change of the Child’s surname to “F”. The Court accepts the evidence of Dr G that this would be in the long-term best interests of the Child in respect of her relationship with her half-siblings. The Court is also of the view that this change of name will also advance the best interests of the Child in engaging the Father, both in undertaking the initial discomfort of supervision over six visits so as to advance the meaningful and significant time, and to advance the relationship between the Father and the Child. The Court does not accept that the different spelling being X advanced in the Father’s application is appropriate given that the Child has been known as X since birth and that change of spelling was not supported by the Mother.
The Court is also satisfied that the Mother has sufficient resilience, notwithstanding the overlap of the surname with the Father’s first name, not to be deflected from her capacity to properly perform her parental responsibility and meet the needs, psychological, emotional and physical, of the Child. Accordingly, the Court proposes to make orders for correction of the birth certificate to include the Father’s name as the father of the Child, for a change of the Child’s name so that the surname is the same as her half-siblings, being “F”, and her name “X” is the only other name that will appear on the birth certificate, removing “Samad”, albeit misspelled, and removing the other name of the Father. The Court is satisfied that this change of name is in the best interests of the Child.
The Court is also satisfied that it would benefit both parents to undertake a Keeping Kids in Mind course, to be completed within 12 months.
The Court is not satisfied that it is in the best interest of the Child for the Child to be able to be taken overseas until the age of six, and will make an order under s 65Y of the Act that the parties may take the Child, born in 2020, to a place outside Australia once the child has attained the age of six, being a Hague Convention country only. The Court will make a further order that, once the child has reached the age of 10, the parties may agree in writing to permit the Child to be taken to a non-Hague Convention country.
The Court is also satisfied that it is in the best interests of the Child to order that the Mother inform the Father as to the school at which the Child is attending, and about elective surgery, treatment of chronic conditions or other long-term illnesses affecting the Child, or other emergencies affecting the Child. The Court is also satisfied that it is in the best interests of the Child to spend graduated time on her birthday with the father and also on special days.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Street. Associate:
Dated: 16 September 2022
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