YACOB & CABALLOS

[2018] FCCA 2793

FEDERAL CIRCUIT COURT OF AUSTRALIA

YACOB & CABALLOS [2018] FCCA 2793

Catchwords:
FAMILY LAW – Parenting – consent orders.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR YACOB

Respondent: MS CABALLOS

File Number: CAC 512 of 2015

Judgment of: Judge Henderson

Hearing dates: 20, 21, 22 August 2018

Date of Last Submission: 22 August 2018

Delivered at: Sydney

Delivered on: 22 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Holmes

Solicitors for the Applicant: KD Holmes Solicitors

Counsel for the Respondent: Ms Kennedy

Solicitors for the Respondent: Vizzone Ruggero Twigg Lawyers

Counsel for the Independent Children's Lawyer: Ms Stollier

Solicitors for the Independent Children's Lawyer: Brian Samuel & Associates

ORDERS

1. By consent, final orders are made in accordance with the document marked “Exhibit 1”, dated 22 August 2018, as attached hereto.

2. Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

3. If the mother is unable to obtain permission from the school for the child [X] born …2011 to leave at 2pm on 2 occasions each term, the father is to collect the child from school and is to drive the mother and child to Town A in the mother’s car.

4. A copy of these Orders and Judgment is to be forwarded to the child’s school, the local police station and JIRT.

5. The father is to have half of all school holidays with the child as per the consent orders attached hereto and marked ‘Exhibit 1’.

6. For the purpose of these Orders, “generally present” is defined as the adult present being able to see the child and father but does not include the necessity of hearing any conversations taking place.

7. A Divorce Order is granted.

IT IS NOTED that publication of this judgment under the pseudonym Yacob & Caballos is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

CAC 512 of 2015

MR YACOB

Applicant

And

MS CABALLOS

Respondent

REASONS FOR JUDGMENT

1. In the matter of Yacob & Caballos, the parties to their absolute credit and, no doubt, with the assistance of their legal team, including the Independent Children’s Lawyer have been able to come to an agreement in relation to the parenting arrangements of their daughter [X] born …2011 in extremely difficult circumstances. The agreement includes equal shared parental responsibility as well as time, and it has fallen to me to make a decision in relation to four matters.

2. This was an application by the father for time with his daughter [X] who, as I have said, was born …2011. There is no dispute other than [X] continue to live with her mother. Currently, her mother lives in Suburb D with the maternal grandmother, and the father lives in Town A on a cottage on a farm owned by the maternal grandfather and in the home the parties lived in when they commenced cohabitation around 20. They were married on …2012. In fact [X] was born in this area.

3. The parties have agreed on, really, all aspects of [X]’s care save for four issues.

4. The evidence I have read is:

   a)For the father:

   i)Affidavit of 8 August 2018;

   ii)The maternal grandfather’s affidavit of 27 July 2018;

   iii)Case outline prepared by Mr Holmes.

   iv)Both the father and the grandfather were cross-examined and they are the only people that have been cross-examined.

   b)For the mother:

   i)Affidavit of 30 July 2018;

   ii)Her mother’s affidavit of 30 July 2018;

   iii)Dr H her psychiatrist of 8 August 2018; and

   iv)Dr J’s report of 9 October 2017 was marked Court Exhibit 1.

5. The most the difficult fact and salient fact is the mother’s mental health. The mother suffers from schizophrenia and has, most likely, all her life. The mother is compliant with her medication, is seeing four specialists, a psychiatrist once a week, a CBT psychologist, a family therapist and her GP to assist her in dealing with the consequences for her and practical consequences for her and her daughter of this condition.

6. The mother has significant anxiety concerning [X]’s unsupervised time with her father. That thought heightens her anxiety and this is not good as Dr H her psychiatrist says. The mother believes that [X] is at risk of sexual abuse from her father, an issue of excessive alcohol consumption which is a real issue and has been addressed in the consent orders. He agrees not to consume alcohol for 24 hours prior to [X] coming into his care and the mother can breathalyse him. I cannot see anything more anyone can do. That is a most practical way of dealing with that concern.

7. Now, the Independent Children’s Lawyer and the father each agree that the mother’s fears in relation to [X]’s risk of sexual abuse by her dad are genuinely held by her and that there is no malice or other agenda operating to cause her to have these beliefs. I accept that entirely. I have formed the view on the evidence that I have read that there are no reasonable grounds for the mother’s belief and that the father is not a risk of harm to his daughter at any level including a risk of sexual harm, but I reiterate and accept, as the Independent Children’s Lawyer and father do, the mother’s beliefs are genuinely held by her.

8. The reason I make that finding that the father is not a risk is for the following: The risk of harm to [X], as I see it, is the deterioration in her mother’s current stable, and I would regard, at present well managed mental health. The mother is an exemplary parent, parents her daughter to a very high standard, and is capable of cooperating and co-parenting with the father and he with the mother. The mother is capable and has ensured that her daughter has a very strong relationship with her father despite these genuinely held concerns, and she facilitates that relationship and can facilitate this strong relationship continuing and growing, provided there is another adult present.

9. That has been the gravamen of the issue, having another adult present. Again, [X]’s father showing his commitment to his daughter has effectively agreed with this until she is 12. The father agrees she is an exemplary mother, makes all the right choice for her daughter. [X] is the most important thing to this mother and that is clear. It is the mother’s mental illness and its consequences on her which give her an unusual take or view of the world and form a reality that others without this disease may see in a different way. That is the issue.

10. This mother is doing more than could be expected of any person to maintain and progress a positive trajectory in her mental health, the mother. Now, my reasons for this finding that the father poses no risk to his daughter, let alone a risk of sexual abuse to his daughter are based on the following.

11. His cross-examination, I found he was a genuine straightforward witness who made concessions when he needed to. He had been unfairly criticising the mother’s way of treating her mental health, and when he realised that was unfair, he made that concession freely saying, “I was wrong. I didn’t realise.” He made concessions against his own interests showing honesty. He still genuinely cares for the mother. That is clear to me.

12. He is totally focused on protecting his daughter, and I detected no guile, narcissism or personality type of coercion or control in the father. The maternal grandfather was a most impressive witness. He supports the father’s position. He has observed the father and his granddaughter on many occasions. He has no concern that the father is in any way a risk of harm to the child, and he knows his daughter well and he knows the consequences for her of her condition, and he has insight into this, and he set out clearly this the sad situation for his daughter.

13. The mother’s untested evidence – as she has not been cross-examined – in relation to the risk of sexual harm she sees of the father to their daughter starts at paragraph 53 of her affidavit. It is under the heading Concerns about Mr Yacob’s Inappropriate Behaviour. She recalls that the father said to her at their wedding, “I want [X] to be naked during the ceremony.” The father said, no, [X] wore her dress at the ceremony. It was hot, summer. She took her dress off. She was about 20 months of age, and she and her cousins ran around. A number of the children had no clothes on. This was confirmed by the maternal grandfather and he said the children swam in a little swimming pool near the creek.

14. The mother says at paragraph 54 that the child pulled her father’s head towards her crotch and said to her father, “Lick it.” I cannot imagine what little child could do that, but that is what the mother observed and said happened. The child would sit on the father’s lap whilst watching television and gyrate on his legs. The father pushed the child to the ground on one occasion and said, “When are you going to learn to do as I say”, and the child was injured at this stage. The mother was so concerned in July 2014 that the child had said to her dad, “Daddy, let’s go to bed and play.”

15. The mother recalls the child’s mouth was bleeding and he was trying to prevent [X] from revealing the inappropriate games that he would play with [X]. After that incident, the mother thought she had no option but to contact the department. A caseworker was arranged and, of course, the child was examined and cross-examined and the usual processes that must occur in our society, and unsurprising, the department found there was no evidence of sexual abuse, but [X] had to go through a physical examination.

16. Again, the mother says in February 2015, the father said to her, “No, [X]. We aren’t kissing like that today”, and the mother said to her later, “[X], who do you touch tongues with?” And the child said, “Daddy and I do it. Only with Daddy. It’s a thing we do.” The father saying to the child while he is playing with her, “I’m a dirty pussy”, while they’re playing with dolls in Christmas 2017. Saying chocolate balls with a Santa in Christmas 2017. Calling the child a dog, “Maybe I should give you a bone”. The mother said she heard the father say to [X] and another little girl she was playing in September 2016, “I’ll have both of you.”

17. Talking to [X] about running around in the snow when he was a little child with no clothes on and going to buy lollies. The mother thought was inappropriate. The child says she has a secret and says, “It has been a secret for thousands years, if you keep it a secret”, in December 2016. That was the beginning /opening of a book the father gave her. The father whispered into the child’s ear, “I won our case. That’s good. We can party together soon.”

18. That while the mother was at the beach in January 2017, she observed [X] to bend over and rub her bottom on Mr Yacob’s crotch and she said to [X] “It’s inappropriate you bend over and rub yourself against your dad like that.” The father said, “What are you talking about?” The mother said, “It’s not appropriate.” The father said, “What’s wrong with that?” “It’s inappropriate”, says the mother. The father said – the mother says, “[X], stop that. It’s not appropriate. Do you understand?” And the father said, “That’s insanity. That is.” There is much more in fact up to paragraph 125.

19. This is the mother’s untested evidence. They are her genuine beliefs. The father has an entirely different take on all those allegations. He says they are not true. The events did not happen. For example, the beach incident. All the father said all he can think of is he had [X] on his head. She came down off on his shoulders. They bought lunch. He took her over his head to put her on the ground. That was all that he can think of.

20. So the father has no explanation for what the mother has seen is happening and what is being said. Genuinely held by her, however, difficult for me to accept that this father – impossible for me to accept this father has sexually abused his child and that the evidence the mother gives is what would support an allegation. The grandfather said that after the – at the wedding, his daughter had a breakdown. So that was a difficult time for her.

21. I accept the husband’s drinking alcohol to excess may be a risk issue. I accept that is quite genuine, but as I have said, they have agreed to an arrangement which puts that to bed. These concerns that the mother raises are without real cogent reasoning and foundation; however, having regard to her mental health, I accept they are genuinely held by her.

22. One person whose affidavit is of concern to me is the maternal grandmother’s affidavit and her evidence this is Ms K, filed 27 July 2018, pages 19, paragraph 19, she says:

    I’ve observed Mr Yacob to allow [X] to kiss him on the lips with [X]’s tongue out.

23. I have no idea what the issue is there, however, grandmother says she would say to [X], “No, [X]. We don’t kiss like that with our tongues out”, and that the grandmother advised the mother of this incident. Paragraph 20:

    [X] would return from spending time with her father, and her behaviour would become increasingly sexual. For example, I would be playing with [X] with her toys on the floor. [X] would try and pull her pants down and sit on my face. Each time this occurred, I would say to [X], “No, [X]. We don’t play games like that. [X], can you put your clothes on.” She would refer to her vagina as the “… and her bum”, and take off her clothes and gyrate in front of me.

24. The child said to her grandmother on one occasion, “Now, I bite you on the bottom”, and the grandmother said she learnt that from her father. That she has observed the father to participate in aggressive and violent behaviour towards her daughter. This is not something the maternal grandfather has observed. The grandmother said she did not do anything when this happened. As well as observing [X] displaying sexualised behaviour after spending time with the father, she displayed violent behaviour. “I’m going to put a pillow over your face, granny”, and the grandmother said she cannot play like that.

25. The child was staring into space in February 2017. The grandmother said, “Is [X] okay?” That the father drank heavily, and that may well be correct on those issues, and the grandmother says, at paragraph 27:

    Although I have serious concerns that Mr Yacob is acting inappropriately, I accept the findings of the JIRT investigation in May 27 and the DOCS investigation in July 2014.

26. There has been three investigations about these issues. This child has been through quite a lot. DOCS directly, in 2014, assisted in highlighting some concern in respect of some of the father’s behaviour, and this has formed part of the consent orders.

27. These issues are not just about Mr Yacob’s behaviour; it was also about the mother’s mental health issues. The Department I was trying to put in place a plan for both these parents in difficult circumstances, to provide for their child, and I am quite sure the Department does not want this child unnecessarily interviewed and examined in the future.

28. This is the one person, as I read the evidence and as the mother lives with her mother who could really assist the mother with putting her concerns into some perspective. However, as I read this affidavit, the grandmother may, indeed, be inflaming the mother’s anxieties, which can only have a negative consequence for [X], her granddaughter.

29. The grandmother could put her obvious dislike of the father aside and maximise her daughter’s mental health for her granddaughter’s sake, as I accept she loves her granddaughter and her daughter. This may make this difficult situation for the mother a little easier, as the mother lives with her mother.

30. The fourth reason I do not find the father is a risk of harm, including sexual harm to the child, is Dr J’s report, paragraph 86:

    Ms Caballos clearly wants to be the best mother she can to [X] and cares for her deeply. If the father’s account is correct, her original thought about him abusing [X] in 2014 may have been a delusional one.

31. That is probably, no doubt, correct. However, it appeared that once the mother formed the idea the father was grooming [X], she read this intent into many aspects of his interactions with her, as well as seeing things that [X] said as indicators of abuse. Dr L psychologist said that:

    This has become an overvalued belief and does not appear to have merit to it. Many of the behaviours which the mother and the grandmother have used to support their concerns could equally be viewed as completely innocent.

32. That is the sad part. The problem is that once there is a perception of abuse or risk, so many things which occur between an adult and a young child can start to acquire potential sinister implications. From the father’s account, other members of the mother’s family do not perceive him as putting [X] at any risk of harm, and that is, in fact, the case.

33. We have two entirely different camps, and I would ask the maternal grandmother to reassess her position in relation to her granddaughter’s best interest, and fostering her daughter’s best hope at strong mental health.

34. I find on these facts that the father is not a risk of harm to his daughter, including risk of sexual harm to his daughter. I also find that the mother’s belief and concerns of risk of harm to [X] from unsupervised time with her [X] are genuinely held by her.

35. The other matters I am tasked to deal with is time in the summer school holidays.

36. Given that the father has assured the Court he is able to spend half the holidays with his child, I will make the order, being Order 10, and not the mother’s alternate order. If he is going to be there, [X] has the right to have half the school holidays with her dad.

37. The third matter for me to determine is the time to be spent at Town A, including the travel issue.

38. The mother says if she can get permission from [X]’s school to take her out of school at 2 o’clock twice on two Fridays during each term, which is this two occasions [X] will travel to Town A to see her dad. The mother can drive the child down, and then, of course, she can drive her home. If the mother cannot achieve this we have an issue given I accept driving in Sydney traffic is not for the fainthearted at any time of the day, particularly on a Friday afternoon.

39. However, I formed the view that to maximise the benefit to [X] of her time in Town A being only twice each term, as well as holidays, it is to spend Friday and Saturday night down there. That allows her to recover from the long trip and to maximise her time with the other side of her family as she has cousins and uncles as well as her grandfather and step grandmother in Town A.

40. I agree if the mother cannot achieve a 2pm leaving then to only take her down on Saturday morning would be a very onerous trip for a little girl. It is only one night to recover, not two nights. If the mother is unable to obtain permission for the child to leave school at 2 pm to avoid the traffic, I will order the father to travel to Sydney on the train and drive the child and the mother to Town A at 3 o’clock in the mother’s car.

41. Then the mother does not have to drive in the traffic, the child is being protected, and the mother has her car to bring her back on Sunday, or as these parents may otherwise agree as one of the most pleasing aspects in this matter is the ability of these parents to agree about these types of things, and the fact they get on well. The description by the grandfather of the times at Town A when his daughter and her brother and the cousins are together presented a lovely family occasion. There is clearly a significant capacity for these two people to agree.

42. That is the order I will make, or as the parents might otherwise agree.

43. The fourth issue the meaning of the words, “generally present”. The mother asks that that be, as set out in her minute of orders sought that the child is within the line of sight and within the hearing of an adult present. That, to me, is supervised time, and what we are trying to do is move away from that, yet at the same time balance the mother’s genuinely held concerns and anxieties about [X] being with her dad. As Dr J said in her report:

    It is an artificial situation as a child grows older to be with one parent and another adult all the time. The child will start to question why; is there something wrong with me? Is there something wrong with dad? What’s the situation? Because that does not happen with her mum.

1. There has to be a fine balance, because the father has agreed, effectively, to have someone in the general vicinity until she is 12 and not sleep in the same house with her until she is 12, as he accepts the mother’s genuinely-held beliefs and does not want her mental health to deteriorate. We all agree with that would be the worst thing in the world for [X].

2. I will define generally present to mean that the adult who is to be generally present is able to see the child and the father, with no necessity for this to include that adult to be able to hear the words spoken between the child and the father. The father has made many concessions to assist the mother deal with him and [X] spending time together. Until she is 12 an adult will always be generally present, and she won’t sleep in the same house as her dad.

3. I will not place any further restriction of this child’s right to an independent relationship with her father. That is as much as I could possibly do today. If the maternal grandmother can support this relationship, that will assist the mother as well.

4. I will do all I can to ensure [X] is not further interviewed or physically examined in relation to allegations of inappropriate sexual behaviour by her father. That is the balance here. That is what occurs when you make these allegations. As I have said, the maternal grandmother can be of invaluable assistance in ensuring this does not again occur, if [X]’s best interests are also, as they are for her mother and father, at the forefront of her decision-making.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 26 September 2018