Waine and Ferber
[2018] FCCA 2959
•21 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WAINE & FERBER | [2018] FCCA 2959 |
| Catchwords: FAMILY LAW – Parenting – whether time with the father should be supervised – consideration of the court’s family violence best practice principles – allegations of family violence – consideration of unacceptable risk – consideration of the definition of family violence. |
| Legislation: Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 60CC(2A), 61DA, 65DAA, |
| Cases cited: N & S & The Separate Representative (1996) FLC 92-655 Other articles cited: |
| Applicant: | MS WAINE |
| Respondent: | MR FERBER |
| File Number: | WOC 42 of 2018 |
| Judgment of: | Judge Harman |
| Hearing date: | 21 March 2018 |
| Date of Last Submission: | 21 March 2018 |
| Delivered at: | Wollongong |
| Delivered on: | 21 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Williamson |
| Solicitors for the Applicant: | Acorn Lawyers |
| Counsel for the Respondent: | Mr Hosking |
| Solicitors for the Respondent: | Hosking Legal |
ORDERS
THE COURT ORDERS PENDING FURTHER ORDER THAT:
Pursuant to s.11F of the Family Law Act 1975, the parties are directed to attend with a Family Consultant for the purpose of a Child Inclusive Child Dispute Conference with the Applicant to attend at 9:00am and the Respondent at 10:00am on 17 May 2018 and:
(a)The parties shall continue to attend at such times, dates and places as the consultant may advise;
(b)The parties and each of them shall do all things necessary to ensure the attendance of their child/ren the subject of these proceedings to attend at the conference and to be available to meet with the Family Consultant;
(c)The Family Consultant is requested to provide to the Court (and if, in the Consultant’s view it is appropriate to do so, the parties) a memo outlining and reporting on:
(i)Any agreement reached between the parties;
(ii)The issues raised by the parties and which will require determination by the Court;
(iii)Any views or opinions expressed by the child/ren interviewed and any comment regarding the factors perceived to influence or impact upon those views and opinions or otherwise relevant to same;
(iv)Any recommendations by the Consultant including as to Case Management, referral to external (community based or private) services and/or programs and resources to be allocated to the matter including but not limited to expedition, Independent Children’s Lawyer and/or full Family Report or Part 15 experts report.
The matter is adjourned for further mention and directions and, if required, interim hearing to 18 May 2018 at 9:30am.
Pursuant to s.68L an Independent Children’s Lawyer is appointed for the reasons and with ancillary orders as set out in the usual form of order Exhibit A hereto.
Pending further Order and until 5:00pm 18 May 2018, suspend the operation of prior parenting Orders made 2 April 2014 insofar as they relate to the child [X] born 2011 spending time with her father (including but not limited to Order 11 of those Orders).
EXHIBIT A
APPOINTMENT OF AN INDEPENDENT CHILDREN’S LAWYER
Pursuant to s.68L of the Family Law Act 1975 an Independent Children’s Lawyer shall be appointed to represent the interests of the child the subject of these proceedings, [X] born 2011.
The Legal Aid Commission of NSW is requested to make arrangements as soon as practicable to facilitate the above order.
Each of the parties shall, within seven (7) days of any request by the Independent Children’s Lawyer:
(a)Complete and provide to the Independent Children’s Lawyer a parenting questionnaire and/or such other information as may be requested.
(b)Provide to the Independent Children’s lawyer copies of all any documents filed by them in these proceedings together with:
(i)Any medical reports they hold relating to the child;
(ii)Any psychological or school counsellor or pre-school intervention reports they hold relating to the child;
(iii)Any school reports they hold for the child;
(iv)Any other documents they hold and wish the Independents Children’s Lawyer to see and/or that they intend to seek to tender to the Court or rely on in these proceedings.
Each of the parties shall present the child to such places and at such times and dates as are requested and/or advised by the Independents Children’s Lawyer for the purpose of the Independents Children’s Lawyer meeting with the child.
Leave is granted to the Independents Children’s Lawyer to inspect the Court file and any material produced to the Court pursuant to s.69ZW and/or in response to subpoena.
Leave is granted to the Independent Children’s Lawyer to issue such further subpoena as they may consider relevant, appropriate or useful and such leave expressly authorises and allows the issue of more than five subpoenas.
The appointment of the Independent Children’s Lawyer is made on the following bases:
(a)There are issues of alcohol abuse in relation to either party or other persons having significant contact with the child which are alleged to impact negatively upon that parent’s capacity to care or otherwise negatively affect the child/ren;
(b)The child is of tender years and require protection from conflict;
(c)The child is of an age and apparent maturity whereby the International Convention on the Rights of the Child would require that the child have a voice in the proceedings and with respect to decisions that will affect their future;
(d)It is suggested that the child is expressing clear views to which weight would be attached and/or with respect to which there are allegations that such views have been influenced such as to not warrant the attachment of weight and/or are suggested not to accord with their best interests;
(e)There are allegations of Family Violence and/or abuse suggested to impact upon the child’s best interests.
IT IS NOTED that publication of this judgment under the pseudonym Waine & Ferber is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 42 of 2018
| MS WAINE |
Applicant
And
| MR FERBER |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to interim care arrangements for a young child, [X], born 2011. [X] has recently turned seven.
The parties to the proceedings are [X]’s parents, Ms Waine, her mother, and the Applicant in the proceedings, and her father, Mr Ferber, the Respondent.
The parties have previously been involved in proceedings albeit, for reasons which are completely inexplicable from the Court file, with a different proceedings number, which proceedings culminated in Orders made by consent, 2 April 2014. In those proceedings, an Independent Children’s Lawyer represented [X]’s interests.
This is the first return date of this tranche of proceedings, thus, there is no Independent Children’s Lawyer appointed, although the parties consent to such appointment. On the basis of the number of Re K [1994] FLC 92-461 criteria which are met by the evidence presented, even that which is undisputed or agreed, the reappointment of an Independent Children’s Lawyer seems entirely appropriate.
The Orders made in April 2014, at which point in time [X] was just three years of age, are extensive. The Orders provide for seven separate stages of advance of the child’s practice of relationship with the father. The last of those advances, (stage 7 at Order 11.9), provides that upon [X] commencing her formal schooling, (which there could be no controversy she has), that time would then occur, during school terms, each alternate weekend from Friday to Monday and each Wednesday for a period of some hours, as well as periods during the school holidays, for special events and the like.
Circumstances that have recently arisen, if the term “recently” might be used in a loose sense, have led to the present controversy.
By an Application initiating proceedings, filed on 12 January 2018, Ms Waine seeks, on a final basis, to discharge those Orders. Ms Waine seeks to reserve[1] her position as to what might occur with [X]’s practice of relationship until a Family Report is completed. Of course, if a Report were not ordered, there would never be a position advanced. However, such uncertainty is, perhaps, explicable in these circumstances bearing in mind that the information relied upon by Ms Waine at that this point is largely, if not solely, confined to things relayed to the mother by young [X] or by others, such as counsellors or psychologists, with whom [X] has engaged.
[1] After two years of protestation regarding such Applications, they sadly persist. Such Applications create difficulty by reference to the High Court of Australia’s decision in U and U [2002] FLC 93-112, do not properly invoke the Court’s jurisdiction and do not afford due process to the party served with such an Application as they cannot understand the case they are to answer.
On an interim basis, the mother proposes that the existing Orders would be suspended and that [X] would practice a relationship with her father by attending through a supervised contact service. In the alternative, it is proposed by the mother, as has been occurring for the last few months, albeit for lesser periods of time than provided by the earlier Orders, that time would be supervised by [X]’s paternal grandmother. The mother’s Application has now been amended. The relief that is sought by the Amended Initiating Application largely discontinues the alternate plea. The Amended Application, filed 9 March 2018, simply proposes that time occur through the supervised contact service.
It is trite to observe that there can be some benefit to periods of supervision when there is controversy between the parents, particularly with respect to either the relationship between a child and the other parent, or the impact, consequences and sequalae of past behaviours upon that relationship or upon the child themselves (see, for example, the decision of Coleman J sitting as a single Judge comprising the Full Court of the Family Court of Australia in Green & Graham [2011] FamCAFC 248).
The difficulty in this case, of course, is that such arrangements would be entirely impractical, if not illusory, as the matter is to be adjourned for a period of approximately eight weeks so that an Independent Children’s Lawyer can be appointed and so that a Child Inclusive Conference can occur. The conference will permit and facilitate the child’s voice in the proceedings and will provide to the Independent Children’s Lawyer admissible evidence as to the child’s views. It will also assist the Court with case management guidance and direction.
The difficulties and delays with the implementation of time through a supervised contact service, through no fault of those services, must obviate against such an Order being made on this occasion. If an Order were made, the present delay at the supervised contact centre nominated and which serves this region, is four to six months. The matter is to be adjourned for two months. Accordingly, the Order will effectively do nothing more than place the parties on a waiting list. That is not to say that expediency can be offset against risk. If the level of risk necessitates such formal supervision then the attendant delay would be unfortunate but irrelevant.
The father, by his Response filed 20 March 2018, seeks that the mother’s Application be dismissed. The father proposes, on an interim basis, that the Orders of April 2014 continue, but subject to an alternate plea that the Orders continue with the addition of a requirement that the paternal grandmother supervise the father’s time with the child. There is an issue as to the feasibility and efficacy of an Order for supervision being made for what are block periods of time, 48 hours in the case of alternate weekends and block periods of a week at a time during school holidays. If the obligations of supervision were to be met, the supervisor would need to remain awake and alert the entire time. That alternate position, as is advanced by the father, is, resisted by the mother for reasons that will become apparent.
As a further alternate position, the mother proposes that if her substantive position, that the Orders be suspended, is not favoured, that time would occur for a period of six hours or so each alternate Sunday, and the time would be supervised by the paternal grandmother.
Material considered
In dealing with the proceedings, I have read and considered each of the documents that the parties have filed in the proceedings. An attempt was made, consistent with the national practice direction, to confine the evidence that the parties would rely upon. However, portions of the material relied upon by one or other of the parties could not be properly understood or stand by itself without reference to evidence of the other, including portions not read. Accordingly, all of the material has been read and considered.
I should be clear that is not intended as a criticism of the legal representatives for the parties. The material that has been filed is not voluminous, prolix or unnecessarily detailed. The mother’s Initiating Application, for example, was accompanied by an Affidavit of some six pages and one annexure, the annexure being the existing Orders that both parties now seek some degree of interference with. That is fortuitous in light of the fact that, for whatever reason, the filing counter has considered it necessary or appropriate to create a new and separate file for this Application. The mother has filed a second Affidavit. It is not of any great length, indeed the two read together are only slightly over 10 pages.
The father, in his case, has filed an Affidavit which certainly complies with the limit of 10 pages. However, there are two additional Affidavits, explicably so in the circumstances and in light of the allegations which are the root cause of this dispute. The additional Affidavits are by the father’s partner, Ms J, and the father’s mother, Ms R.
Each party has also filed a Notice of Risk. The Notices of Risk are of some assistance in this case, unlike so many, in that the notices eruditely identify the risks that are apprehended and alleged.
In this case, the mother’s position is very much founded in alleged unacceptable risk. That risk is apprehended as exposure to family violence. I make clear that what is alleged, at this time, is not violence directed towards the mother or, for that matter, towards the child. What is alleged is a more general exposure of the child to violence. That is not intended to minimise the allegations or dismiss them, far from it. It is an important factor in the case although the evidence is very much contested.
It is germane to commence with a consideration of the definition of family violence in section 4AB(1) of the Family Law Act 1975, and which I incorporate herein:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful
The definition of family violence is contained within subsection (1). Subsection (2), which too often receives far more substantial consideration than subsection (1) containing the definition of family violence, provides nothing more than an illustrative list of behaviours which may constitute family violence, whether individually or collectively. The list is intended to be helpful. However, it is often misapplied or misinterpreted, visiting mischief. The preamble to the subsection is clear, that the behaviours may constitute family violence, thus leaving open the possibility that they may not.
The illustrative list is not intended as a checklist to determine if family violence has occurred. It is not a matter of identifying one of the behaviours within the list and then, as night follows day, alleging family violence. It is necessary to establish a nexus between the behaviour and its affect, being coercion and control or generation of fear. There needs to be a causative link. The behaviour or act needs to have a consequence being coercion and control or fear. The act alone is not enough (although a number of the illustrative behaviours are far more amenable to readily establishing family violence such as intentionally causing death or injury to an animal).[2]
[2] See for example Linda Merz-Perez & Kathleen M. Heide, Animal Cruelty: Pathway to Violence Against People (Rowman Altamira, 2004); Alan Parkes, Animal Law Compendium - Part 2: Criminal and Cruelty Offences: The Link between Animal Cruelty and Interpersonal Violence, A selection of student research papers School of Law and Justice, Southern Cross University.
Section 4AB(2) of the Act is not intended to provide a definitive list of behaviours which must constitute family violence. Indeed, there are many behaviours within those illustrative examples which might be innocently explained or which, even if the behaviour has occurred, might not have led to coercion and control or may not have caused fear and which may not lead to a finding that family violence has occurred. This includes, for example, derogatory taunts.
Derogatory taunts are suggested to have occurred in this case. The making of derogatory remarks does not, by and of itself, constitute family violence[3] (although I do not refer to that example to suggest that derogatory taunts, as allegedly made in this case, have not been disadvantageous, if not injurious, to this child). A distinction must be clearly drawn between the illustrative examples of behaviours which may constitute family violence (section 4AB(2) of the Act) and the definition of family violence (section 4AB(1) of the Act). The definition of family violence is “violent, threatening or other behaviour that causes coercion and control or fear”. Thus, a derogatory taunt may not lead to those consequences and if it did not then would not, if the consequence was not apparent, constitute family violence by and of itself.
[3] Derogatory taunts are not appropriate. But appropriateness is not the test.
It would seem that the parties have very much approached the evidence that is available, largely through subpoenaed material to which I will shortly turn, from different perspectives, viewing that material, as it were, through different lenses as to whether those reported behaviours constitute risk to this child.
It is also germane to observe that exposure to family violence is a matter of real significance under the Act. The definition of abuse in section 4 of the Act includes, as a basis for a finding of abuse, a child’s exposure to family violence resulting in serious psychological harm.
The primary considerations in section 60CC of the Act place a focus upon children being protected from subjection or exposure to family violence, such protection being prioritised over the benefit to the child of a meaningful relationship (by section 60CC(2A) of the Act). Similarly, the objects and principles, whilst they are not the subject of such express legislative prioritisation, require that the Court, in all that it does, ensure that children’s best interests are met by protecting them from exposure to family violence. It could not be suggested that the framers of the legislation have done other than to seriously weigh, balance and provide for the protection of children from the risk of family violence.
If that were not enough, the Court’s Best Practice Principles in Cases involving Family Violence[4] speak to and augment those considerations. The best practice principles do not form part of the law to be applied to the facts or circumstances of any case, as is made clear by the introduction to those principles. They provide practical guidance for Courts, legal practitioners, service providers and litigants. That is all the more important in interim proceedings where the evidence is quite often truncated, untested, shrouded in controversy, and where findings cannot be safely made (see, for example, the discussion of that principle at paragraph 68 of Goode & Goode (2006) FLC 93-286).
[4] Family Violence Committee, Family Violence Best Practice Principles (December 2015, Edition 3.2).
Thus, the best practice principles, which can be considered by the Court in addressing any proceedings, are, as the Full Court of the Family Court of Australia observes in Cameron & Walker (2010) FLC 93-445, of some use. They can be considered, but they do not fetter the Court’s discretion. The Court must, in each individual case, have regard to the evidence that is presented. That is fundamentally important in light of the nature of family violence.
Family violence does not lend itself readily to arbitrary or specific definition. It is experiential. What might objectively be viewed by one person as family violence is largely irrelevant unless that one person is the person who experienced the violence. What is important is the subjective experience of the person who has experienced violence. The very fact that a white, middle age, male Judge such as I may look at a particular behaviour and feel that such a behaviour, if directed towards him, or to which he was exposed, would not trouble him,[5] does not equate to that which the Court must do, namely to consider this seven-year-old child’s exposure to behaviours through the eyes of that seven-year-old.
[5] That is assuming, for one moment, that the impact of effect of such exposure was apparent and realised or manifested itself at the time. It is possible that an impact might be misunderstood, misdiagnosed, not understood or even, through “bravado” or otherwise dismissed. That is also before regard is had to the potential for vicarious trauma in hearing the experience of others individually or cumulatively.
In this case, the mother’s evidence, well-prepared, erudite and addressing matters of relevance, does give some cause for concern. I make clear, findings of fact are not made accepting one version of events over the other. But that again, at an interim hearing, is not the test (see, for example, Goode & Goode (2006) FLC 93-286, Marvel & Marvel (No.2) [2010] FamCAFC 101 and importantly, the Full Court of the Family Court of Australia’s discussion of that issue in Salah & Salah [2016] FamCAFC 100).
On the basis that the evidence is untested and is largely disputed, there is all the more reason to approach the evidence with some caution. However, caution does not mean disbelief or even scepticism but merely acknowledgement that the evidence might not ultimately be established. The evidence must be approached with a duality of cautions by posing the rhetoric questions “what if the allegations are true and what if they are not?” I propose to turn to and discuss the evidence that is presented with respect to family violence, particularly by reference to that which is tendered in the proceedings.
Exhibit A1 comprises documents produced by New South Wales Police. Exhibit A2 comprises material produced by the Department of Family and Community Services.
The Departmental file with respect to young [X] is not substantial but it certainly suggests that there have been complaints made to the Department with respect to this child’s exposure to family violence, commencing in 2014. Those complaints and reports have continued up to the present time. The reports to the Department are not voluminous or frequent complaints. If one seeks to arbitrarily and objectively determine what significance might be attached to the allegations on that basis, then it could be suggested that the reports are not particularly relevant. However, that approach is erroneous. If a child has been exposed to one incident of family violence and that exposure has caused them significant emotional distress, then that is significant by and of itself. It is simply artificial to suggest that there needs to be some frequency or pattern to the exposure, a threshold as it were, that exposure to 10 events is significant harm, whereas nine might not be. This is not exposure to radiation where toxins accumulate such that once a particular level of exposure is achieved it becomes unsafe but, below that limit, it may be acceptable.[6]
[6] The analogy is not intended to be scientifically accurate. The firemen of Chernobyl understand the folly of that reasoning.
From a child’s perspective, exposure to family violence can be unsafe from one exposure. Exposure to things that might not objectively seem significant to a casual, adult observer is all the more significant when involving violence and the generation of fear by persons whom the child loves and upon who the child depends for security and a sense of safety. The man on the Clapham omnibus, as it were, is irrelevant to an understanding of an experience of family violence. Unless the man on the Clapham omnibus has been exposed to the violence that is relevant to the case, his view is as irrelevant as the views of the many posters, bloggers and Twitter users who daily share their uninformed views with the world on family violence and engage in dismissal and victim blaming, the “if it was so bad why didn’t she leave?” and “if it happened, why didn’t she report it?” brigades.
The two most significant departmental records come from 2017. There is a record, May 2017, which suggests that the caller, who may well have been the child’s mother, indicated that [X] had seen her father and a person described as the father’s girlfriend, engaged in a violent, verbal altercation. Again, family violence need not involve physicality for it to be violence, or for it to have significant impact. Again, if one considers allegations of violence from the perspective of a seven-year-old child, spending time with a parent whom she loves and who she cares for, together with that parent’s girlfriend whom she also has some affection for, and seeing violent altercation, particularly when fuelled by alcohol and with the destruction of property around her, one could well-imagine it would be, at the very least and at its most euphemistic, upsetting. In this case such exposure is suggested to be much more than upsetting.
Events as described on that occasion suggest that the child had not only witnessed a verbal altercation of some ferocity (that would seem clear on the evidence of the father and his partner), but had witnessed a quantity of lasagne, whether on a plate or otherwise, being propelled either towards the girlfriend, over her head or towards a wall. There are three different versions given throughout the various documents. That given to the Department suggests that a plate of lasagne was thrown at or over the girlfriend’s head in the child’s presence, that the child was scared and went outside. While she was outside she could hear the arguing continuing before the father then came out and the child and father left.
The father’s evidence is that he left with the child and they stayed away. Other versions are given. It need not be determined which version is accurate. It is, on any version, concerning. It is suggested that the child reported that the father, upon coming out of the house, had said that they must leave immediately as the Police had been called. That is also concerning. If that was so, and no finding need be made, it would suggest a degree of chicanery, of concealment and engaging this child as a co-conspirator in that concealment; being a poor role model, as it were, teaching her to flee the scene before the Police arrive. To run away and conceal.
What is, perhaps, even more concerning is that it is suggested that young [X], in describing the incidents, indicated, “It was all Ms J’s [the girlfriend] fault because she was yelling.”
The record goes on to say:
It is believed the father has told [X] the situation was Ms J’s fault and not his. [X] is blaming the victim which is very concerning.
It is, indeed, very concerning. It is a difficulty for this child, at seven years of age, if she is told by a parent, (and, again, no finding is made that it is so, it is simply a concern at this point raised by the Departmental record) that such “victim-blaming” should occur, such rationalising of one person’s behaviour as appropriate and responsive to another’s, as though control of one’s own actions is the responsibility of third parties.
The second Departmental entry which is particularly concerning is a report, which by reference to the mother’s evidence would clearly appear to be made by the principal of [X]’s school, on 14 June 2017. The report reads:
[X] today, she reported (sic) that she had witnessed DV between her father and his partner when she goes to stay with them. She estimates that she has seen this a number of times. She said approximately 11 to 12. She reports they pinch and hit each other. She reports that during the most recent visit [presumably the visit in May which the father has referred to as “the lasagne incident”, and I propose to adopt that term] that her father and partner got into a verbal argument, and her father got annoyed and threw food at his partner. He, the father, then took [X] to the car, but returned into the house because he forgot something. [X] reports that she could hear her father’s partner screaming from the house. When her father came back to the car, he had a bleeding finger and told [X] that his partner bit him. They left the house at that stage and went to visit her father’s friend. They eventually came home and snuck back in the house because she, [presumably the partner], was still awake. [X] reports that her father has told her on a few occasions not to dob to her mother about the violence she has witnessed –
This is corroborative of the mother’s evidence.
That event is also highly concerning. The mother describes in one portion of her evidence that, upon commencing a conversation with the child, (after the child has reported that there was something she wished to tell her mother though she had been told not to do so), that the mother appropriately, (accepting her evidence as more probably correct than not), told the child that if someone has told her that there is something she should not disclose, then it is all the more reason that she should disclose. Indeed, it is so. It is an abusive behaviour if such “secret keeping” behaviour occurs, let alone is encouraged (although no finding is made that the behaviour did, in fact, occur; it is merely the suggestion that it might be so and that it cannot be dismissed as having been so).
It is then reported that:
She [[X]] indicates that she had told her mother about that event after the father had left and because she did not wish her father to get angry as he had done in the past.
The above is, apparently, based upon that which is reported to the Department when [X] has previously made disclosures to her mother about events in her father’s household.
That version must set against the Police report with respect to that same event. On 21 May 2017, a report was made to Police, again it would seem by the mother, in relation to that which the child had disclosed to the mother. When Police attended the mother relayed to them what the child had said to her. The Police are suggested to have asked the child, presumably in the mother’s presence, whether what the mother had said was true and the child responded, “I don’t know.” The Police have then recorded:
There appears to be some discrepancies with what the child has disclosed to her mother and what she has disclosed to police.
One would hope, in 2018, that there would be better questioning of children by Police in relation to such events. To describe discrepancies in the two versions of the events is perhaps overstating the position. In light of that which is reported to the Department by the school principal, there were two versions of events that were entirely consistent. It is explicable that the child may not have wished to make any statement or disclosure to the Police in the above circumstances, although I do not suggest that a statement, in a formal sense, was sought.
The mother’s complaints with respect to that which the child has relayed, not only to her but also the school counsellor and/or school principal, is confined to the lasagne incident. Before passing from that incident, however, it is important to observe what the father and his partner have to say about it. The father indicates at paragraph 9:
[X] was not witness to a physical fight between [X] and myself. Following a verbal argument with Ms J, I took [X] from the house and said, “Let’s go camping.”
It may be that this refers to a different event. Paragraph 16 certainly refers to the lasagne incident. It again commences:
Ms J and I had a verbal disagreement. I decided that [X] and I should leave, and on my way out I threw a handful of lasagne in Ms J’s direction. I realised that I should not have thrown the lasagne at Ms J, and I explained this to [X] the next day when I scrubbed the wall.
If one can so readily understand that it should not have happened, one wonders why it did.
Ms J, previously referred to as Ms J, refers to those events at paragraph 11 of her Affidavit as follows:
I say that the incident referred to did not happen. I have no recollection of any incident in May 2015 [Although again, that may be referring to another event that the mother suggests occurred in May 2015]…I do not believe that Mr Ferber has ever spent the night in the car with [X] [Whilst clearly the father indicates he has]…I do not believe the police were called in May 2015 about this as it just did not occur.
In combination with paragraph 16 which refers to an event in May 2017, the lasagne incident, there is little indicated other than:
Mr Ferber returned home with [X]. He was sitting on the couch. I heated up lasagne for their dinner and asked Mr Ferber a couple of questions. This turned into an argument.
Why it turned into an argument is not clear, nor the topic of conversation. It continues:
We were not yelling, but got cross with each other. Mr Ferber then flung his lasagne at the wall to one side of me.
Whether the lasagne was on the plate or otherwise is unclear. It then states:
[X] looked shocked when this happened. He, [the father] then said to [X], “Come on, darling, let’s go to visit.” They both left. Mr Ferber did not return, and I did not bite his finger. The next day both Mr Ferber and I spoke to [X] and apologised to her for what happened. We told her we should not have acted like that, and it was silly.
It was more than silly. It was seriously frightening for the child. One can take that much from Ms J’s material, especially if conflating the child as looking shocked with being frightened. It is not a long stretch to accept that both may well have been the case.
In returning to the Police material, exhibit A1, it is clear that there are a number of occasions when the Police have attended at the father’s home or, more correctly, that of the father and Ms J. The records most assuredly do not include an attendance in May 2017, the lasagne incident. When Ms J seeks to suggest that the non-attendance of the Police suggests that nothing happened, it could not be so. Something most assuredly happened. The father, Ms J and [X] all say something happened. Something happened which caused shock, if not fear, for the child. The absence of a Police record does not prove that nothing happened. It proves that the Police did not attend. It proves that the Police records are not a complete record of altercations between the father and his partner, Ms J, whether they are described as verbal arguments, with or without yelling, or anything else.
The first entry that is tendered from the Police material is a record from December 2014, the last, December 2017. Over that period there are nine COPS event entries that are tagged and relied upon. It is not all of them, but only those tagged have been read. Eight of them relate to Police attending the home of the father and Ms J over a period of two and a half years. On six of the eight occasions, the father is observed to be intoxicated. On at least three of the occasions, a child, although not [X], is present. It is Ms J’s child, somewhat older than [X]. Indeed, on occasions, it seems at least two, the child is the one who has called the Police in relation to the verbal argument between his mother and her partner.
The Police records suggest that the relationship between the father and Ms J has some difficulties. In one of the events, Ms J contacted the Police indicating that she and the father were separating. That separation either did not occur or, if it occurred, a reconciliation was affected thereafter, because there is no dispute they remained together.
The Police having been called either by the father, Ms J, the nearly adult child in the home or possibly others who have overheard the altercations, thus, suggesting that the altercations must have been beyond normal speaking voices. On each occasion the father and/or Ms J have, by and large, been uncooperative. On one occasion, Ms J, who had called the Police, was observed to be highly intoxicated, opined to be completely uncooperative with the Police and ultimately telling them to leave.
On several occasions, the father has been removed from the home, not always under arrest, although arrest certainly occurred in December 2014. On that occasion, the father was so intoxicated he was not interviewed once taken to the Police station and was simply charged.
The father describes that there has never been violence within his relationship with Ms J or within the household including [X], save and except for the lasagne incident. The father asserts that [X] has never been exposed to unpleasantness whilst in his care. Those assertions sit uncomfortably with the Police records. Those records suggest that in April 2014, an Apprehended Domestic Violence Order was applied for and obtained. In addition, the father was dealt with and convicted of common assault under section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Again, in December 2014, a charge of common assault was preferred against the father.
In February 2015, the father was convicted of contravening the Apprehended Domestic Violence Order previously made for Ms J’s protection. All of this is most concerning in light of the father’s disavowal of any tendency to behave in a violent fashion.
The above events, and especially the events which occurred in December 2014, would appear to have occurred when the child was not present. Indeed, time arrangements between the child and the father had broken down around that period. However, the denial of the types of behaviour the subject of those events gives no comfort that the events are not regular occurrences and which might well occur or have occurred when [X], or other children, are present.
The father was more recently charged in relation to an assault upon an elderly gentleman. Whilst the father indicates that he does not agree with all Police facts, a plea of guilty was entered and, thus, one might accept that the version of events led in the Police report of the occasion are accurate, particularly, as two independent witnesses corroborated the version of events. On this occasion, the father is suggested to have punched and kicked the elderly gentleman, notwithstanding, the man’s protestations that he had a heart condition and a pacemaker. Indeed, on the basis of the Police facts, the elderly gentleman was kicked to the chest. This would all appear to have arisen out of an argument about use of fishing rods or some other similarly trivial issue whilst the father and the elderly gentleman and, it would seem, each of their partners were present at the beach. To the extent that there is a disavow of violent actions by the father at any time the disavowal cannot be dismissed, but it is uncomfortably placed alongside the above evidence.
I do not propose to canvas each of the COPS event entries. Suffice to observe that children were present on nearly half of the occasions, whether [X] or the elder child, (the child of Ms J). On the majority of occasions, at least three quarters of them, the father, his partner or both were observed by Police to be intoxicated whilst violence was occurring, albeit, predominantly suggestions of verbal abuse and screaming matches, as they might be called in the vernacular. However, those altercations were observed directly by Police Officers on at least two occasions. The events are described by Police Officers to be much more than verbal disagreements.
That causes some concern as to the potential minimising of those behaviours by the father and his partner, in particular. To the extent, as I have already observed, that the COPS event entries are not more extensive, that must be viewed in the context that the Police may not have attended on each occasion that such events were occurring. Indeed, Ms J’s evidence clearly establishes that they did not.
What is tragic, in the circumstances, is that various “happy snaps”, if they might be so described, are annexed to the father’s material showing [X] with her cousins and others playing happily together. [X] is clearly enjoying very happy times with her father and clearly enjoys a close and important relationship with her father, grandmother, various cousins, aunts, uncles and the like. That, of course, is not inconsistent with [X] having been exposed to violence in that relationship with her father. That a child has witnessed violence does not mean that she cannot practice a relationship with a parent of depth and meaning, or that she cannot smile for the camera or have a good time even when the camera is not pointed. Family violence is a complex issue. It is not simple or formulaic. It is not a matter, as regards the father, of, “I have never hit her, therefore, there has been no violence.”
Violence takes many forms. It is the impact violence has, as already observed, of coercion and control or generation of fear that is important. This child has potentially heard many, whether as many as eight or more or possibly a good number less, loud verbal altercations. That is problematic. It remains problematic even if it has been only the one incident, the lasagne incident. That is particularly so as the mother’s evidence, in contradistinction to many cases before the Court, draws a clear link of causation, or establishes a nexus, between the behaviour complained of and the Application that is made to the Court. The mother does not simply suggest that the child has been exposed to family violence. The mother sets out the impact of that exposure from her perception and experience.
At paragraph 33 the mother describes:
Over these last few months, I have seen [X]’s behaviour change.
Those few months commenced, it would seem, at about the time of the lasagne incident. It continues:
She has started to wet the bed. She cries and becomes and frightened when someone raises their voice. This has happened at school and at home several times. [X] has been very keen to talk about her experiences, and due to the issues now present I sought the help of the school counsellor that her ongoing support and to provide her with someone she can trust. [X] has since stated that fighting occurs between Ms J and Mr Ferber all the time, including physical fighting.
Certainly, the COPS even entries suggest, albeit, sometimes for occasions when [X] was not present, that physical violence did occur, including punching, kicking and other striking by the father towards his partner or by the partner towards the father, sometimes both in the same event, such that on occasions both the father and Ms J are referred to as victims. Again, such is the complex dynamic of family violence that sometimes it is possible, as referred to in the summary of the Triple P Test set out in the Best Practice Guidelines, to discern a principal perpetrator and a victim and sometimes not. Sometimes there are two simultaneous victims and perpetrators.
The child has also commenced attendance upon a counsellor, Ms S. There is no evidence from Ms S at this time, but I am conscious these are interim proceedings to which section 69ZX of the Family Law Act 1975 most assuredly apply. Thus, whilst hearsay evidence would ordinarily be excluded by the Evidence Act 1995 (Cth) in this case, the mother, compliant with the relevant provision of the Evidence Act1995,[7] identifies the source of the hearsay material. In any event, those provisions of the Evidence Act1995 (Part 3.2) do not apply as a consequence of section 69ZX of the Family Law Act 1975. I propose to admit the material and place some weight, although far from dispositive, upon it.
[7] Section 75.
Following the child’s attendance upon Ms S, the mother was told by Ms S that time should not occur between [X] and the father if the grandmother is not present. Further, the mother was advised by Ms S that if the grandmother was not available, that time should occur through the supervised contact service and that time should not occur unless it is supervised in some fashion. Ms S was clear that overnight stays were contraindicated. I do not suggest that the recommendations of Ms S, as relayed to the mother and from the mother to the Court, in any way bind this Court and I do not refer to them or propose to take them into account in that fashion. I refer to the recommendations of Ms S as for such recommendations to have been raised, albeit, without the father’s participation in those sessions, something of significance must have operated upon that counsellor’s mind.
There are then the difficulties that arise following the commencement of proceedings. Whilst the mother had been the one who felt some comfort and reassurance in the child’s paternal grandmother supervising time, and thus proposed it, (if not having directed and required it for time to occur at all), the mother no longer has such a degree of confidence. The mother suggests, for example, (paragraph 5 of her second Affidavit), that even with supervision the child has become resistant to spending time with her father. I do not suggest that this a case where the child’s views are of such weight that they will be dispositive of any issue, but it is, perhaps, connected with and potentially adds weight to the concerns raised by the mother as to the impact upon this child of past exposure to violence. More importantly, there have been at least two occasions when it is suggested that the paternal grandmother has abused the mother’s trust, to paraphrase the mother’s evidence, (rather than to suggest it is a finding by this Court), in that the child has either been uplifted from school or retained after the time that had been agreed for the child’s time with the father supervised by his mother.
The mother suggests that she cannot trust the father to behave appropriately in the child’s presence and that she has no confidence that the child’s paternal grandmother will intervene if the father were behaving inappropriately in light of some communication that has occurred between she and Ms Ferber Senior. Accordingly, the mother proposes, as alternative relief and with some hesitance and reticence, such an arrangement as a last resort.
In reality, this determination is intended to operate for eight weeks. It has been made clear to the parties that it would be preferable that the child’s views be ascertained through a Child Inclusive Conference prior to any longer-term determination. The conference that was available with some urgency sadly cannot proceed as the parties, or one of them, have prior engagements which cannot be altered other than with substantial cost. I am not critical of them in that regard, however, it does mean further delay, with an adjournment of three to four weeks rather than an adjournment of eight weeks. It is only during this period that I propose to interfere.
The Orders that I make will be expressed to expire at 5pm on the day that the matter returns to Court, so that a fresh determination can occur and will occur with fresh eyes. It may well be, at that point, with greater evidence, the Independent Children's Lawyer appointed and the opportunity for further time to pass, that circumstances present somewhat differently.
Before turning to the legislative provisions which must be considered, I am conscious of that which falls from the Best Practice Guidelines and which principles are entirely consistent with the decision, for example, of Tree J in Johns & Jasapas [2016] FamCA 471, dealing with issues of unacceptable risk. In interim decisions in cases involving family violence, the Court is directed by the Best Practice Principles (pages 19 and 20), to specifically consider past and prospective risk as well as any necessary safeguards to address or ameliorate risk.
In this case, the mother’s evidence is sufficiently consistent with that produced by exhibits A1 and 2 that it could not be dismissed. The Court must have regard to, for example, the effect of violence upon the child as well as the degree of insight or motivation of the parents against whom a finding is made, or, in this case, an allegation is made.
The Best Practice Principles go on to indicate that the Court should consider whether a parent is motivated by the child’s best interests or a desire to intimidate or control the other parent. The latter is not contemplated in this case. It is merely an issue of insight and acknowledgment, a factor also identified, a consideration of whether the parent has accepted responsibility for violence, the degree of acknowledgement that has occurred, the extent to which a parent has accepted that the behaviours are inappropriate and has demonstrated insight into the ill effects of that behaviour upon the child.
The ill effects of such exposure to violent behaviour, absent expert evidence in the case and reliant entirely upon the Best Practice Principles, are as stated by Jaffe & Johnston at page 23 of the Principles:
For the majority of victims, separation from the perpetrator of domestic violence may provide an opportunity for improvement in both general functioning and parenting capacities. However those who have been victimised by prolonged abuse and control are likely to suffer sustained difficulties – like anxiety, depression, substance abuse, and post-traumatic stress disorder – all of which can compromise their parenting for some time…
The above should also be seen by reference to authorities such as Merryman and Merryman [1993] FamCA 142 dealing with the role modelling or “normalising” that arises from exposure to violence and, thus, returning to where I began with respect to the subpoenaed records. There is a suggestion raised in this case that violent behaviour is minimised, at the very least, and that there is thereby an absence of acceptance of responsibility or acknowledgement that the behaviour is injurious or potentially injurious to this child. There is the concern that the child has been told to keep secrets, not to “dob” to the mother as it were.
These are highly concerning aspects of the evidence. Although no finding is made, the allegations are raised and must be considered with the seriousness which the Full Court of the Family Court of Australia directs such allegations be given at interim hearing. That is because such concerns arise with respect to unacceptable risk. This young lass is suggested to be experiencing behaviours that would be indicative of psychological or, at least, emotional harm to her such as bedwetting, changes in demeanour and the like. Those behaviours, one would think, might be arrested through change of behaviour or, at least, the child’s non-exposure to behaviour.
The question here is whether there is an unacceptable risk that such exposure might arise. Counsel for the father sagely observes that there is no suggestion that the child has been exposed to the behaviours that are spoken of in the COPS event entries, most of which occasions this child was not present for. However, a child was present on some of the occasions, and, accordingly, a continuation of the arrangement with supervision by the paternal grandmother might guard against risk. That makes it important to look at what the risk might be.
To that end, I incorporate paragraphs 46 to 48 of Tree Js decision in Johns & Jasapas. I propose to pose each of the rhetorical questions referred to in paragraph 48:
The notion of unacceptable risk
46. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
47. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [25] the Court said as follows:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
48. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[3]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
1. What harmful outcome is potentially present in this situation?
There are two. The first is a continuation of the behaviours that the mother suggests have begun to arise, such as bedwetting and the like. Symptoms of trauma to the extent that the child has been referred, on a mental health care plan, to a trauma counsellor.
Secondly, that if the child has been traumatised by the behaviours that she has observed, possibly pre-dating, but most assuredly in place at the time of the lasagne incident, that this trauma may be retriggered through practice of relationship, particularly so in circumstances where there is the suggestion that the child is told to keep secrets and not dob. That is all the more concerning as it places a burden upon this child which impedes her capacity to obtain support or assistance should she require it.
2. What is the probability of the outcome coming about?
The probability must be heightened on the basis of the mother’s evidence that the child has already experienced trauma and is manifesting clear, observable behaviours. Certainly, the father and each of the witnesses in his case suggest those behaviours are not observed by them in their home. I need not discount or disbelieve that evidence. Simply, to observe that it is possible. It may be that whilst the child is present in one circumstance their behaviour is different to another. However, there is nothing to discount the mother’s evidence either, particularly to the extent that the mother gives evidence not only of those behaviours in her care, but in other contexts such as at the child’s school where it is suggested, on one occasion, that the child had wet herself at the school and then began to remove her clothing.
Accordingly, one cannot dismiss the possibility or probability that risk has already occurred or might continue or be retriggered.
3. What risks are probable in the short, medium and long term?
For this seven-year-old girl the risks are significant, both short and long term. In the immediate or short term and based on the mother’s evidence, which, again, cannot be dismissed, there is already the manifestation of physical symptoms of trauma. The risk is that the expression of these symptoms will continue. In the long term, and without those behaviours which cause and trigger trauma abating, there is the potential for real psychological harm, per Jaffe & Johnson above.
Serious psychological harm from exposure to family violence is within the definition of abuse. I need not consider the particular linkage of wording within the definition, but one would think that any psychological harm to a seven-year-old child is serious, irrespective of whether it arises from exposure to family violence or otherwise. There is a concession by the father, on the basis of his description, largely consistent, but not identical with Ms J’s description of the lasagne incident, that the child has been exposed to family violence.
Name calling, yelling, screaming and throwing of food at or about a person constitutes family violence, particularly as the behaviours lead to the child, on Ms J’s evidence, looking shocked, and I accept the child would have been, as the mother describes, and as the child is described to the school counsellor, Ms J and others, concerned and fearful. The long-term risks are significant, particularly when balanced against the lesser and short-term risks arising from a suspension of time.
I accept what is put that this little girl has good functioning and meaningful relationships with a broad array of paternal family members. Those relationships are potentially impacted by any interference in the father’s time or practice of relationship. However, setting that short term suspension of two months against the potential long-term consequence, I am satisfied that the balance must tip in favour of long-term consequence supporting suspension.
4. What are the factors that would increase or decrease the risk?
Supervision goes some way towards obviating against risk, but supervision is not a cure-all. If a child has been exposed to trauma the child’s trauma can be retriggered by exposure to the person who created the trauma. Whilst it is not relevant to this case, the clearest example would be, for example, an allegation that a child had been sexually interfered with by a parent. Simply having the time between that child and that parent occur at a supervised contact centre, where there would be vigilance to ensure the child was not again sexually assaulted, does not necessarily mean the child will not be traumatised or injured.
The child can experience emotional and psychological harm, which is just as important, and one would think, for a seven-year-old, all the more important. Broken bones can heal, but deep psychological scars have the potential to follow this child into her adult life, particularly in circumstances where the very behaviours this child is suggested to experience is family violence perpetrated by a man towards a woman. This young woman would learn to accept that behaviour. The concern is heightened by the reality that she has described, on at least one occasion, accepting that which is indicated by the child to her counsellor, the father’s explanation that the victim brought it upon themselves through their behaviour and provoked the response. This is what is referred to by victim blaming.
There is no excuse, ever, for violence by one adult towards another. That is so whether that involves two individuals or between nations. It is simply not how civilised people conduct themselves. There is equally no excuse for that violence to occur in the presence of a child. Real concern arises from the behaviour of the father. The father’s conceded and demonstrated behaviour is consistent with that which the mother alleges, based on the child’s statements, as regards the father not only engaging in verbal altercations with his partner but beating up an old man with a heart condition because the two were having an argument. The father has pleaded guilty to the offence. On that basis, I accept the Police facts as more probably correct than not. That does not directly connect to this child. She was not present. But it gives greater basis for concern of an unacceptable risk that the father may be unable to control his emotional response whilst the child is in his care as evidenced by this physical outlash. That prospective concern is the very nature of unacceptable risk as proposed and discussed eruditely by Fogarty J at paragraph 46 of Johns & Jasapas set out above.
Once the damage to the child is done it is difficult to reverse. As is damage to this child’s emotional functioning, physiological functioning and long term her view and self-esteem, her view of herself as a woman, her view of herself as someone worthy of exposure to that behaviour, and, ultimately, potentially, developing into subjugation to that behaviour. That violent behaviour might become normal in her experience. Violence is far from normal, as much as I disavow the very concept of normative thinking. It is simply not something any woman, irrespective of her age, should ever be exposed to, whether directed towards her or others.
5. What measures are available whose deployment could mitigate the risks?
I am satisfied that this is addressed by the above discussion. Certainly, for the five to seven months that time has been occurring supervised by the paternal grandmother, (of whom I raise no criticism, although, the mother’s criticisms are far more abundant), the child is not suggested to have been exposed to those behaviours. But that is not the end of concern, especially if the view expressed by the mother is given some real weight, being that the father minimises his behaviour or demonstrates a lack of insight into the behaviour he engages in or its impact upon others. It would seem that criticism extends to Ms J. This might suggest that risk is not adequately protected against through supervision by a family member, particularly, when, on the mother’s evidence as contained in her Affidavit of 23 February 2018, it is suggested that the supervising family member is unable to influence or control the father’s behaviour, that which is essentially necessary for supervisors.
That is not to suggest that the child’s paternal grandmother would ever willingly or knowingly permit this child to be exposed to harm. However, it is a risk that cannot be completely discounted. In light of the mother’s evidence extending appropriately and thankfully to indicating impact, effect, nexus and causation of disadvantage for this child, such risk could not be countenanced without first obtaining and considering the further evidence that I propose to commission through the appointment of an Independent Children's Lawyer and a Child-Inclusive Conference, so that this child might have a direct voice.
The determination of a child’s best interests must, as section 60CA of the Act dictates, consider that which is best for the child as the paramount consideration. This remains so even when considerations of risk are great. A particular aspect of the child’s best interests, such as a need for protection, might often seem to almost be conflated with the child’s best interests. However, protection is but a constituent part of the child’s best interests, albeit, at times a very significant part. Thus, the remaining legislative provisions must be considered.
I must commence with the objects in section 60B in which I incorporate herein.
Objects of Part and principles underlying it
(1) The objects of this Part 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.
(2) 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).
The Court must endeavour to ensure that children’s best interests are met by ensuing that children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests. That must be balanced against the need to protect children from physical or psychological harm through exposure to abuse, neglect or family violence.
In this case, as in many others, the two objects must be prioritised. They are in remarkably similar, though not identical, terms to the primary considerations in section 60CC(2) of the Act, and, accordingly, the prioritisation provided by section 60CC(2A) of the Act would be appropriate.
There is no doubt that there is benefit to this child of a meaningful relationship with her father and through him myriad other paternal family members. However, the real difficulty with the relationship, is that whilst, on its face, the child is happy, smiling for the camera, it is still possible that this can potentially mask the risks and difficulties beneath. If this child is made fearful by someone whom she loves and who loves her, that is not healthy for the child.
The mother suggests in her evidence that this is already manifesting itself as unhealthy through the child’s behaviours, (at paragraph 33 of the mother’s Affidavit referred to above). The extent to which meaningful involvement can occur, consistent with the child’s best interests, must be considered and balanced against the need for protection.
For the brief period of adjournment, I must ensure that the child receives adequate and proper parenting. I accept that the period of adjournment will seem much longer for the father, possibly also the child. But I cannot proceed without the necessary evidence and assistance that can be obtained in a relatively short time. There must be some concern that there have been times in the past when the child has been exposed to yelling, screaming and derogatory comments between the father and his partner, let alone between the father and the child’s mother. The child has been upset and shocked by those behaviours. That is not adequate and proper parenting.
There is no suggestion that the child’s parenting by the mother is other than adequate or proper, although, those terms are used purely to reflect the legislation, not to be in any way pejorative of the adequacy of care.
The principles underlying the objects create rights for this young child, including the right to know and be cared for by both parents and to spend time with both parents and others significant to her care. These rights are not absolute. They are subject to the caveat that the rights are neither enlivened, nor practiced, when to do so would be contrary to the child’s best interests.
In this case, by reference to the discussion of unacceptable risk above, I could not be satisfied that I could advance the child’s rights at this point in time or until there is better evidence. I am conscious, again, that a discussion of conservative response in interim proceedings might often seem, especially to litigants, disproportionate to that which is alleged. However, in this case, bearing in mind that the evidence gives some concern that there may be minimisation and lack of insight with respect to behaviour. If minimisation has occurred it would give all the more reason and meaning to the mother’s concerns. Such conservatism must lead to the child being protected from the things that would cause her harm.
It would cause this child harm to terminate healthy relationships, although there would be concern as to the health of a relationship if the child is being exposed to violence through a practice of that relationship. If [X] has a meaningful relationship with her father then that relationship will survive an eight week break in practice. Thus, one can have some comfort that the disadvantage, whilst it is real, is lesser than the disadvantage of the potential for not only damaging the child emotionally, but damaging those relationships if those behaviours were to occur whilst the relationship were being practiced. The objects and principles support the suspension sought.
I must then have regard to the presumption of equal shared parental responsibility. There is an Order for equal shared parental responsibility in place. However, in this case, I propose to apply section 61DA(3) of the Act. These are interim proceedings and I am not satisfied that it would be appropriate for the presumption to apply, particularly when there is a concession on the father’s own evidence with respect to the lasagne incident, (although the father may not accept that it is so), that the child has been exposed, on at least that occasion, to family violence.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence. It need not be a course of conduct. It need not be an event of some particular magnitude. Merely, exposure. I do not propose to treat the presumption as not applied on the basis of subsection (2). That would require a finding, which, whilst it is potentially available on the father’s evidence, I am satisfied need not be made and can more safely be avoided through the application of subsection (3).
That being so, I am not obliged to consider a course of substantial or significant time by reference to section 65DAA(1) to (3) of the Act. I will, in any event, consider all time by reference to section 60CC of the Act to which I now turn.
I must commence with the primary considerations being the benefit to the child of a meaningful relationship with both parents and the need to protect the child from physical or psychological harm. As already indicated, the latter prioritised over the former by subsection (2A).
This child’s need for protection from harm, particularly when it is suggested, on the mother’s evidence, that exposure to violence is already manifesting itself in physical behaviour, demeanour and emotional changes of the child, must take precedence and be prioritised. That overwhelmingly supports suspension.
Subsection (3) sets out the additional considerations. I will consider each.
The child’s views
I do not place significant weight on the child’s views. That is not to dismiss them, far from it. However, the evidence, at this point, is far from complete. Once a Child Inclusive Conference is completed and an Independent Children's Lawyer is appointed, the child’s views may well assume some greater weight.
The mother suggests the child was, as recently as December 2017, suggested some reticence, if not reluctance, in attending time with the father. The child’s views may also support a re-establishment of the relationship. The father is suggesting that when he collected the child from the school, one of the events that further undermined trust between the parents, that the child was perfectly happy to go with him. The mother discounts that suggestion. I need not pursue it.
Nature of the child’s relationship with each parent and other persons.
That is already discussed above.
The extent to which each parent has taken or failed to take the opportunity to participate in the decision-making and spend time or communicate with the child
This would not appear significant in this case. The mother suggests that the father abandoned mid-week time some little time ago. However, the father suggests that it was at the mother’s instigation and he went along with that suggestion. In any event, there is clearly some real geographical distance between the parties, which may have rendered that somewhat ineffective and impractical in any event. It is not significant.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
This is certainly raised as an issue. On the evidence, there would not appear to be anything specific as to the amount of child support assessment payments actually made. It is so far from dispositive of this issue, where there are issues of unacceptable risk. The issue need not be considered further, and, in any event, a conclusion could not be drawn.
The likely effect of change, including separation from either parent or other child or persons
I accept, as is submitted on the father’s part with some vigour, that the child may experience some real loss in not being able to practice a relationship not only with her father, but many others of her paternal relatives for the next eight weeks. However, as already indicated, that must be balanced against the potential risks to the child of exposure to violence or the retriggering of past trauma. That discussion, I am satisfied, will suffice and falls in support of the mother’s proposal.
Practical difficulty and expense
One alternate proposal in the mother’s case is that there would be a period of time for six hours or so supervised by the paternal grandmother. There is no dispute that there is about two hours distance between the child’s residence and the paternal grandmother’s. The amount of impracticality that would arise would be a real concern based on that fact if nothing else. However, it would seem that the trust and communication between not only the mother and father, but between the two houses both alike in dignity, to adopt a Shakespearian reference, is problematic in itself.
It is suggested that the child is now acutely aware of the controversies in relation to her care and the parties’ perspectives with respect thereto. That creates further stress and distress for this child. It also creates further impracticality. The impracticality of the arrangement for the brief period of adjournment, by reference to the risks that are already identified, would fall in favour of the mother’s proposal.
Capacity of each of the parents to meet the child’s needs, including emotional and intellectual
This is a fundamental issue in this case. On the mother’s case, the child has been exposed, for some years now, to violence between the father and his partner.
It is concerning that whilst it is described as either not having occurred or having occurred in a relatively innocent context that:
a)The police records would suggest far more turmoil and trouble within the father’s household than the father and his partner concede;
b)Children have been present, whether this child or others, and that would suggest that the father is unable to control his emotional responses, even with the presence of children, and, thus, demonstrating a lack of insight into the impact of those behaviours upon children, even if not confined to [X]; and
c)The suggestions throughout the Police material that the relationship between the father and his partner is troubled, fractured, indeed, at one point, separating from each other, would, again, suggest that the picture that is painted in the denial of those allegations is, at the very least, somewhat understated.
These factors would cause some concern as to the capacity for the child’s emotional needs to be appropriately responded to by the father. If there is not insight into the impact of behaviours, without making any specific finding as to any event that has ever occurred, but clearly on the Police records there having been significant turmoils within the home, this suggests that [X]’s needs would not be well met.
Maturity, sex, lifestyle and background of the child
This is a seven-year-old girl. If Aristotle was right then, by the age of seven, one has created the adult. One would hope that Aristotle was wrong at least in this regard. This seven-year-old girl deserves better than to have a view of her gender and her gender’s role in society as being the punching bag for men. I do not suggest that any finding is made that the father has punched his partner, although, it is an allegation contained in the Police records. The expression is used in the vernacular. This child, to the extent that she is suggested to engage in victim-blaming, internalisation of her response to behaviour, given barriers to disclosure, are all matters of concern, let alone the issue of role-modelling.
Aboriginality
Aboriginality is not raised as neither party identifies as Aboriginal or Torres Strait Islander, thus, nor does the child.
Attitude of the child and responsibilities of parenthood and family violence
I am satisfied that the above discussion addresses this issue together with the significant family violence issues raised in this case. That is not to dismiss those issues, simply, to acknowledge that they have already been canvassed in detail.
There are no family violence Orders that include the child as a PINOP nor a family violence Order between these parents. There has clearly been a family violence Order and conviction for breach on at least one occasion as between the father and his partner. The father’s partner, Ms J, is a person who will live within the household and be present during the child’s practice of relationship with the father. On that basis I am satisfied that it is appropriate to adopt and accept the position that the mother advances, that there has been a minimisation of the child’s exposure to violent behaviour, which would fall, prima facie, within the definition of family violence within that household.
Whether it is preferable to make an order that would least likely lead to the institution of future proceedings
This is not relevant as this determination relates purely to the period of adjournment, eight weeks, and during that time I am satisfied the orders should simply be suspended.
Accordingly, I make Orders as follows (see Orders).
I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 19 October 2018
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