Thakur & Asgari
[2022] FedCFamC1F 162
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Thakur & Asgari [2022] FedCFamC1F 162
File number(s): SYC 6676 of 2021 Judgment of: REES J Date of judgment: 17 March 2022 Catchwords: FAMILY LAW – INTERIM PARENTING – Competing applications for time spent with the child – Allegations of sexual abuse perpetrated by the father – Whether the mother and maternal grandmother have concocted evidence and coached the child – Orders for the father’s time with the child to be suspended in the interim. Division: Division 1 First Instance Number of paragraphs: 73 Date of hearing: 16 March 2022 Place: Sydney Counsel for the Applicant: Mr Ladopoulos Solicitor for the Applicant: New South Lawyers Counsel for the Respondent: Mr Gould Solicitor for the Respondent: Farah Lawyers, Solicitors & Barristers Solicitor for the Independent Children's Lawyer: Mr Bourne, Medcalf Grant Lawyers ORDERS
SYC 6676 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS THAKUR
Applicant
AND: MR ASGARI
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
REES J
DATE OF ORDER:
17 MARCH 2022
THE COURT ORDERS:
1.That the operation of the orders relating to the child X (“the child”) spending time with the father that were made on 21 August 2019 are suspended, pending further order.
2.That in relation to all affidavits filed in these proceedings after this date, the rules of evidence will apply.
3.That the mother is restrained from taking the child to any psychiatrist, psychologist, therapist or counsellor without the written consent of the father and the Independent Children's Lawyer EXCEPTING THAT the mother may continue the child’s engagement with a fully registered psychologist at D Clinic, Suburb C (D Clinic), and may engage the child with a certified practising speech therapist/pathologist in accordance with recommendations of the child’s psychologist or a general medical practitioner.
4.That if the mother wishes to seek the leave of the Court to change the child's psychologist, or to have the child see or engage with any other psychiatrist, psychologist, therapist or counsellor which is not consented to by the father and the Independent Children's Lawyer, the mother may approach the Magellan Registrar (with a copy to the father and the Independent Children's Lawyer) after giving 14 days’ notice to the father and the Independent Children's Lawyer.
5.That the parties and the maternal grandmother are restrained from filming, videoing or otherwise recording the child or any conversations with the child.
6.That the parties and the maternal grandmother are restrained from taking photographs of any part of the child which is not clothed.
7.That the Independent Children’s Lawyer is requested to forward a copy of these orders to the maternal grandmother who may apply to vary orders 5 and 6 by making an Application in a Proceeding supported by an affidavit which is to be listed before the Honourable Justice Rees by arrangement with the associate.
8.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
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 Thakur & Asgari has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
X (“X”) who was born in 2016 and is now aged six years, is the child of Ms Thakur (“the mother”) and Mr Asgari (“the father”). The parents separated in 2016 when X was less than four weeks old. They reconciled for a month in September 2016 but have otherwise lived apart.
A Magellan Report, detailing the involvement of the Department of Communities and Justice (“DCJ”) with the family has been prepared. I am conscious that the Magellan Report is a summary taken from the DCJ’s file and that summary would not be admissible if challenged. However, it is instructive, for the purpose of this determination, in that it chronicles the escalating allegations of abuse.
Commencing in 2016, when X was only two months old, DCJ has received 17 Risk of Significant Harm reports (“ROSH”) and three non-ROSH reports in relation to his welfare.
Between 27 August 2018 and 4 November 2021, eight referrals were made to the Joint Response Unit (“JRU”) by DCJ in relation to X because of escalating and increasingly bizarre allegations of sexual abuse at the hands of the father and other members of the paternal family and household. JRU has prepared four field response assessments, the last in June 2021, in relation to allegations that X has been physically and sexually assaulted by his father. None of those allegations was substantiated.
X has engaged in three forensic interviews with the Joint Child Protection Response Program (“JCPRP”). The Magellan Report which was provided in January 2022, indicates that X did not disclose any abuse of any kind in the first two interviews and in the third interview he “made concerning statements but was unable or unwilling to provide details or contextual information”.
Parenting orders were made by consent on 21 August 2019 which provided that the parents have equal shared parental responsibility for X, that he live with the mother and that he spend time with the father, unsupervised, initially on a day time only basis but advancing to alternate weekends and an evening during the week. When the parenting orders were made, there had been no allegations that X had been sexually abused although it had been alleged that he had been exposed to his father abusing his mother and another member of the maternal family and that he had been physically abused by his father.
Sexual abuse was first reported to DCJ on 15 January 2020. The first interview with JCPRP was conducted on 10 April 2020.
On 13 September 2021, the mother filed an Initiating Application seeking both parenting and financial orders. Relevantly, the mother seeks sole parental responsibility for X and that he spend no time with the father.
The father seeks an order that X live with him and that he have sole parental responsibility for X. He proposes that X spend time with the mother on weekends and overnight during the week.
The matter comes before me in relation to the interim parenting arrangements in circumstances where X has spent little or no time with his father since May 2021.
The father seeks interim orders for X to live with him immediately or, in the alternate, to spend time with him, initially professionally supervised, moving then to weekends.
The mother seeks to adjourn the hearing of the father’s interim application and for the appointment of a Chapter 7 expert and the preparation of a report.
She also seeks to restrain the father from attending at X’s school and removing X and an order placing X on the Family Law Watchlist (“the watchlist”).
An Independent Children’s Lawyer (“ICL”) has been appointed for X. The ICL submitted that the appropriate course was to obtain a report from a single expert and then reconsider what orders, if any, should be made. Ultimately, for reasons I will explain, I have adopted the position of the ICL.
Before me, the mother relied on an affidavit sworn by her on 24 February 2022. The father relied on an affidavit sworn by him on 24 February 2022 and I was referred to a number of documents in the tender bundles of the ICL and of the father.
The parties are all agreed that a single expert should be appointed and those orders were made by consent.
A number of other orders are agreed, specifically, that the rules of evidence should apply to all future affidavits in the proceedings, that all parties and the maternal grandmother should be restrained from filming, photographing and recording the child, and that the child should not be taken to any therapist, other than the current psychologist and the proposed speech therapist, without consent or leave of the Court.
There are significant and concerning aspects of the evidence that suggest that a cautious approach is required.
In relation to the father’s application for an immediate change of residence, the evidence is that X has not seen his father since the end of May 2021. The father, in his affidavit, does not assert that X has any attachment to him or that they have a loving relationship from which X could draw comfort and security. There is no evidence of an attachment between X and his father.
X has been cared for by his mother since birth and on any analysis of the evidence he has spent very little time with his father. The father instituted court proceedings in November 2016 because, he asserts, the mother refused to let him see X. I infer from his affidavit that he did not start spending time with X until after the orders were made in August 2019. The father asserts that he had regular contact with X for about a year after those orders were made.
The relationship between the parents since they separated shortly after X’s birth has been acrimonious and characterised by allegations of physical violence and later of sexual abuse of X.
The father deposed that, in March 2016, he withdrew his support for the mother’s partner visa. The mother blocked the father on social media and her telephone and refused contact with him. He asserts that the mother registered X’s birth but crossed the father’s name on the documents and registered X’s surname as her own.
In May 2020, there was an incident at changeover involving the father, the mother and the maternal grandmother as a result of which the father was charged and an Apprehended Domestic Violence Order (“AVO”) was made for the protection of the mother. The charges were dropped but the father agreed to the continuation of the AVO.
The father asserts that the mother and the maternal grandmother have deliberately coached X to make allegations against him and that they have fabricated evidence in order to prevent him from having a relationship with X.
He asserts that X is not well cared for by the mother. X’s school attendance records show that in 2021 he had 59 unexplained absences from school and was late on numerous occasions. Further, the father asserts that X’s teeth have been neglected such that the father has been advised by the mother that X needs oral surgery and extensive dental treatment. In March 2021, the father asserts that he noticed that when he collected X from school there was no lunchbox and that he was told by a teacher that X was not being provided with an adequate lunch. The father gave a teacher $50 a week for a couple of weeks to buy lunch for X from the canteen. However, that does not appear to have continued. The father asserts that the mother has been remiss in attending to X’s speech difficulties.
The mother’s case is that she noticed behavioural indicators that X was being abused from about January 2020 including distress at changeovers when he went to his father. What those behaviours were is not articulated.
Police records note a report on 12 January 2020 that X had been hypnotised by “the doctor”. The report states:
These were not [X]’s words, however, [X] described that “the doctor” had used a watch to “tick tick tick”, in front of him. [X] moved his eyes “from side to side like he was being hypnotised” when demonstrating what “the doctor” had done to him.
On 13 January 2020, the mother took X to see a general practitioner (“GP”) because, she asserts, his anus was “inflamed”. Exhibited to the mother’s affidavit are three photographs of X’s anus although the affidavit does not reveal who took the photographs. The GP noted that the mother was concerned about assault by the father. The GP wrote a referral letter which is quoted in part in the mother’s affidavit but is not in evidence. The portion quoted by the mother states:
I advised [the mother] to take him to hospital as I am concerned he may be experiencing sexual assault. He has been sharing stories about assault both physical/sexual and it appears he has been viewing his father and his partners conducting sexual acts. He also brings up being hurt by his father with sharp objects, choking with a cord. He responds with anxiety about being touched and even being bathed and showered. I would like him to be assessed.
No doubt the GP’s notes will be in evidence when the matter is finally determined.
X was physically examined at B Hospital. The hospital records are not yet in evidence. The mother asserts that a bacterial infection, or alternately, poor hygiene was diagnosed.
The Magellan Report makes reference to a notification on 15 January 2020 which includes an allegation that there was a cut on X’s penis (something the mother deposed happened in April 2020). The notification also appears to make reference to the mother’s allegation that the father was using X to make child pornography although the mother does not make that allegation until March 2020.
A caller reported to police in January 2020 that the father was in the mafia and had connections that “would kill them”.
On 18 January 2020, the Magellan Report notes a notification that X has disclosed that the father’s girlfriend and his sister penetrate X’s anus with their fingers and that the father was naked with his sister and his girlfriend and invited X to join them and to play with their breasts.
When X was interviewed on 19 January 2020 the interviewer noted that X had difficulty expressing himself in more than one word and could not speak in sentences, even to his mother. The police record notes:
Investigators saw no evidence of the [child’s] ability to describe in words any of [the] incidents in the report, and have concerns about his ability to express himself at the level appropriate to his age.
On 20 January 2020, the Magellan Report notes that the mother checks X’s anus when he is asleep.
Also on 20 January 2020, police recorded an anonymous report:
At night before [X] goes to bed, he has been making disclosures to [redacted] about abuse that has occurred to him while in [the father’s] care. [X] has disclosed that there are “people” who “hide” in the father’s home while he is there; [X] said there are seven people who hide there, including [redacted] who is “pregnant”, his maternal aunt [redacted] and her partner, [redacted], [redacted] and “the Doctor”…[redacted] is well known to police and is allegedly a rapist.
The record notes that it was alleged that the father put X in the washing machine while it was running and that X said that every time he goes to visit his father, the father fills the tub and puts X’s head in it.
On 7 February 2020, the Magellan Report records a notification that X was on a jumping castle and the father “started to hump him”. The same notification made reference to X’s saying that his aunt and his father’s girlfriend “sleep on top of him” and put their fingers in his “bum”. He is alleged to have said that his father “put the gloves on his hands and held scissors and a syringe”.
The mother deposed that on 1 March 2020 when X was returned by the father he “pointed to his anus to suggest that someone had inserted something into it”. She “checked his anus and observed it was inflamed and irritated” and took X next day to another GP who wrote a referral to another doctor whose qualifications are not explained stating, inter alia:
…putting bag on his head, scaring him to put him in washing machine, allegedly child is hinting that father is inserting finger or objects in his anus? Wrapping cable around his neck and dragging him around.
The mother asserts that X continued to say things which caused her concern. Exhibited to her affidavit is a photograph of X’s penis being held by an adult hand which the mother deposed depicted a laceration. The mother deposed that the photograph was taken in around April 2020. She deposed:
The laceration appears to have been caused by an object being applied to it with force rather than being caused because the child has accidentally bumped into a hard surface.
The mother took X to the GP who noted that X had told his mother and grandmother that the father, and another person, put his finger in X’s anus. The GP reported:
He also reports [the father] and another person rubbing against his penis and anus as well as injecting him with needles. He reports needles being injected into his toes and hands also.
The mother deposes to further things said by X to her or the maternal grandmother.
The mother deposed:
When [X] was in my mother’s care on 26 November 2020, he began to behave erratically for no apparent reason and began to make motions with his hands and body and say words suggestive of sexual acts. She was concerned hence she took out her phone and filmed him in a series of videos because she wanted to document the behaviour to show health professionals and for the purpose of tendering evidence in legal proceedings…
There are three separate video recordings filed, according to the mother, at 4.28 pm, 4.50 pm and 5.01 pm, over a period of more than half an hour on 6 November 2020. The videos are not in evidence and not in English but the mother deposed to her transcript and description which suggests that the maternal grandmother was conducting an interview with X to obtain evidence.
The mother deposed that on 21 March 2021, X described his father having oral sex with another person or persons and said “and [the father] did not die eating his balls… did not die”. The mother deposed:
I contend that the reference to death is a death threat made to [X] if he discloses what he witnessed.
The mother then stated:
[X] then is depicted making sexual gestures imitating sexual acts of intercourse and making sounds of orgasm and says “[father]” and further says “[father] do like this” and demonstrates by making sexual gestures imitating having sex.
I infer from that evidence that X was also videoed on this occasion.
The maternal grandmother videoed X again on 22 March 2021 and although the video is not in evidence, the mother deposes to her interpretation of it which is broadly that the child is being filmed by the father to make child pornography. She concludes that when X said “chick, chick, chick, chick” he was referring to a clicking camera shutter.
The Magellan Report refers to a notification on 3 April 2020 that X said his father “may have given him a needle in the buttocks and put a cable around his neck”.
A report on 10 April 2020 referred to X allegedly saying that other people in the father’s household held him down while the father assaulted him and that X made a slashing motion across his neck indicating that he is not allowed to tell.
The mother was interviewed by DCJ on 24 April 2020. The record of the interview states that “X keeps saying that [the father] is putting cockroaches, snake and lizard in his mouth”.
On 8 May 2020, X is alleged to have said that “mummy and Mr E hurt me and touch me here pointing to the husband bottom”.
On 19 May 2020, it was reported that X alleged that his father tied a charger cord around his neck.
Further sexually explicit video recordings were made by the maternal grandmother on 4 June 2021 when there were five separate videos. In relation to those video recordings, which are not in evidence a police officer who viewed the recordings reported, on 11 June 2021:
All videos contained disclosures of physical abuse albeit there was an obvious conversation before the commencement of the recordings so it is hard to know the context of the recordings or if they were voluntary disclosures. Furthermore the child seems happy and jovial when making the disclosure which is not a response associated with a traumatic incident.
The police officer stated:
Other recordings contained the child commencing the recordings and speaking into the device, presumably an IPAD or similar. The child is heard to say certain things referring to his father and grandmother and aunty. In each recording the child’s can be seen to struggle to tell his story and his eyes dart to the side of the recording as if seeking confirmation or guidance and then he continues telling his story.
I note further that the video recordings are not conducted in English and that there is no verified translation of them.
On 7 June 2021, there was a notification that X had alleged that the father tapes his hands and ankles and removes his clothes, that his father urinates on him and that other people are present and take photos.
X was interviewed by a police officer on 11 June 2021. The record of interview is not in evidence but the entry recorded by the police in COPS is in evidence. The notes state:
…[The officer] asked specifically if the anybody has hurt “Where you wee from” and he said no. [The officer] asked has anybody “hurt your bottom”. [The child] seemed to think and responded yeah my Dad. when asked further if “Anybody has put fingers or anything else in your bum” he answered “Yeah my dad and with his fingers and it hurt”. It was hard to gauge this as being a real disclosure at it seemed non voluntary and it was hard to assess if it was a ‘real’ disclosure…
(As per the original)
A report to DCJ on 11 June 2021 stated that X alleged that “Mr F takes photos and has red, green and blue hair”.
In October 2021, X told his psychologist that his father took photographs of his “bum” and put medicine and a needle on his bum.
In November 2021, X told his psychologist about his father using “needle and gloves”.
On 15 December 2021, there was a report alleging that X said his father touched his penis and put medicine in his eyes, on his mouth, on his neck and on his bum.
The matters which are set out above don’t assist in an assessment of whether X has been sexually abused or is at risk of abuse but they do illustrate a number of issues:
Firstly, the narrative demonstrates the dangers of affidavits which purport to set out evidence and which, in fact, set out the deponent’s impression of the evidence or the conclusions the deponent has drawn from the unstated evidence.
Conclusions, suppositions, interpretations and conjecture are not evidence and can be ascribed no reliable weight in the determination of the important issues which will dictate X’s future parenting arrangements. It will be of use to the trial judge if the lay deponents of affidavits confine their evidence to what they did, what they heard and what they saw.
Nextly, the narrative demonstrates the danger of multiple, unskilled and inappropriate interviewing of this child. The nature of the questioning will be the subject of evidence in the substantive hearing but the state of the evidence at this time suggests that this child has been asked grossly leading questions on multiple occasions. No doubt the effects of such questioning will be a matter for the single expert’s comments in due course.
Lastly, the narrative makes it clear that this is a child who is being subjected to psychological, if not physical harm, but the pathology of that damage is not easy to determine. Nothing in the evidence available at this time rules out the possibility that X has been sexually abused in the paternal household but, equally, nothing in the evidence rules out the possibility that the mother and the maternal grandmother have concocted evidence and coached the child so as to ensure that he does not spend time with his father.
At the very least, it is imperative that the next steps in the proceedings should not subject X to more harm.
Therefore I do no propose to change X’s residence as the father seeks or to institute a regime of supervised time. I cannot be sure that spending time with the father, however objectively safe that would be under professional supervision, will not cause psychological harm to X whether because he would be spending time with a past abuser or because he would feel obliged to recount stories of abuse to his mother and maternal grandmother, regardless of their veracity. Those are, of course, not the only possible causes of harm but they are obvious. No doubt more subtle consequences will be considered by the single expert.
Further, while professional supervision will undoubtedly protect X from physical harm, the supervisor is not a person with whom X has a relationship of trust and he has no reason to believe that the supervisor will keep him safe from real or imagined harm.
Thus orders will be made as proposed by the ICL for the appointment of the single expert and the preparation of a report. The matter can then be relisted by the ICL, once the report is available, before the Magellan registrar for directions to be made to prepare the matter for hearing.
I do not propose to make the watchlist order that the mother seeks. She could have made arrangements with the Federal Police to have X’s name placed on the watchlist at any time after the filing of the Initiating Application and has not done so. There is no evidence that either parent is likely to remove X from the Commonwealth.
Similarly, there is no evidence that the father is likely to remove X from school and I will not make the restraining order sought by the mother to that effect.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 17 March 2022
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