Yi & Sedgwick
[2021] FedCFamC1F 65
Federal Circuit and Family Court of Australia
(DIVISION 1)
Yi & Sedgwick [2021] FedCFamC1F 65
File number(s): SYC 1194 of 2020 Judgment of: MCCLELLAND DCJ Date of judgment: 21 September 2021 Catchwords: FAMILY LAW – CHILDREN – Child related proceedings – Best interests of the child –Where the mother seeks orders that the father spend supervised time with the child on limited occasions per year – Where the father agrees to the mother having sole parental responsibility on the condition she keeps him regularly informed of major decisions in respect to the child – Where the father seeks orders for regular unsupervised time with the child – Where the father opposes supervision at a contact centre– Where the child has not spent regular time with the father for over six years but regularly communicates with him by electronic means – Where the child expresses a wish to spend supervised time with the father – Primary consideration is the issue of risk – Finding that the father has a propensity to engage in angry, aggressive and inappropriate conduct and that he has history of engaging in such conduct towards the mother and his other intimate relationships – Finding that the father inflicted serious injuries to the child’s older sister during her infancy over an extended period of time – Finding that the mother has not fully disclosed her knowledge in respect to the circumstances of those injuries – Conclusion that the child would benefit from a meaningful relationship with the father – Conclusion that the risk to the child outweighs benefits of unsupervised time with the father – Orders made for the mother to have sole parental responsibility and for the child to spend four (4) occasions per year with the father supervised by a professional contact service in a public setting Legislation: Family Law Act 1975 (Cth) Pt VII, ss. 4, 4AB, 43(1)(c) and (ca), 60B, 60CA, 60CC, 61DA, 65DAA and 121
Evidence Act1995 (Cth) s. 140
Cases cited: A v A (1998) FLC 92-800
Adamson & Adamson (2014) FLC 93-622
B and B (1993) FLC 92-357
Blinko & Blinko [2015] FamCAFC 146
Carlson & Fluvium [2012] FamCA 32
Cotton and Cotton (1983) FLC 91-330
Deiter & Deiter [2011] FamCAFC 82
Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5
Dundas & Blake (2013) FLC 93-552
Finton & Kimble [2017] FCWA 106
Godfrey v Sanders(2007) 208 FLR 287
Honourable John Fogarty AM, a former judge of this Court, in ‘Unacceptable Risk: A Return to Basis’ (2006) 20 Australian Journal of Family Law 249
Johnson and Page (2007) FLC 93-344
Jurchenko & Foster (2014) FLC 93-598
Loddington & Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93–405
McGlen-McLeod v Galloway [2012] NSWCA 368
N and S and the Separate Representative (1996) FLC 92-655
Napier and Hepburn (2006) FLC 93-303
Nikolakis & Nikolakis [2010] FamCAFC 52
Russell & Close [1993] FamCA 62
Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)
The Hon. John Fogarty AM, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249
The Hon. Richard Chisholm, ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, (Conference Paper, Children’s Court Conference, Parramatta, 1 September 2010)
Division: Division 1 First Instance Number of paragraphs: 228 Date of hearing: 19–22 April 2021; 16 June 2021 Place: Sydney Counsel for the Applicant: Ms Stolier Solicitor for the Applicant: Rafton Family Lawyers Counsel for the Respondent: Mr Cairns Solicitor for the Respondent: Swifte Law Counsel for the Independent Children’s Lawyer: Mr Moore Solicitor for the Independent Children’s Lawyer: Kathryn Renshall Lawyers ORDERS
SYC 1194 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS YI
Applicant
AND: MR SEDGWICK
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
MCCLELLAND DCJ
DATE OF ORDER:
21 September 2021
THE COURT ORDERS THAT:
1.Ms Yi (“the mother”) be allocated sole parental responsibility in respect to the child Z born … 2010 (“the child”).
2.The child lives with the mother
3.The child spend time with Mr Sedgwick; (“the father”) for up to six (6) times per year as agreed to by the parties, and, in the absence of agreement, that time is to be on the last Saturday of every second month.
4.In accordance with Order 3 herein, the child’s time with the father is to occur in a public setting and be supervised by a professional children’s supervision service agreed to by the parties and, in the absence of agreement, determined as follows:
(a)Within 14 days of these Orders, the mother is to provide to the father details of three (3) nominated children’s supervision services that are prepared to supervise the time that the child spends with the father in a public setting; and
(b)Within 7 days of receipt of the list pursuant to Order 4(a) immediately above, the father is to choose a children supervision service from that list of nominated supervision services, and to notify the mother by email of his choice.
5.The father is to meet the cost of the supervision.
6.In the event that the child is unable to spend time with the father, the mother is to notify the father by email as soon as practicable.
7.In the event that the father is unable to spend time with the child, the father is to notify the mother by email as soon as practicable.
8.The parties are to keep each other informed of the following matters:
(a)Medical problems or illnesses suffered by the child while in their care;
(b)Medications prescribed for the child;
(c)School functions which the child is to attend and that allow for parental attendance; and
(d)Any other matter relevant to the child’s welfare.
9.During any period referred to in these Orders, in the event of the child being hospitalised or receiving medical attention, the party spending time with the child shall notify the other party, as soon as practicable, after the first contact with either the medical practitioner, medical centre or hospital.
10.The father shall have the following communication with the child :
(a)Liberal email communications as the child may request, and the mother will facilitate such emails; and
(b)FaceTime and telephone communication in accordance with the child’s wishes and as agreed between the parties.
11.For the purposes of communicating information between the parties, the mother and the father shall communicate via email.
12.The father shall have liberty to contact the child’s school for reports, merit cards, and any written materials pertaining to the child’s academic and extracurricular activities.
13.Each party shall refrain from making critical or derogatory remarks in relation to the other party or in the presence or hearing of the child, and each party shall do all things necessary to ensure that no third party makes critical or derogatory remarks about the other party in the presence or hearing of the child.
14.The mother shall be permitted to travel with the child to visit family in East Asia, provided that the mother notifies the father of the intended travel not less than fourteen (14) days from the date of departure and that she has provided the father with the following:
(a)Itinerary of departure and arrival dates;
(b)Telephone number to contact the child while overseas; and
(c)Details of any travel insurance that covers the child, in case of misadventure.
15.Within 7 days of the date of these Orders, the Independent Children’s Lawyer is to provide a notice detailing the costs sought by the Independent Children’s Lawyer from each of the parties, to both of the parties respectively.
16.In the event of either or both the parties opposing paying those costs sought by the Independent Children’s Lawyer, within 14 days of receipt of the Independent Children’s Lawyer’s costs notice pursuant to Order 15 herein, they are to file and serve written submissions, of no more than 3 pages, setting out the reason for their objection.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Yi & Sedgwick has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
Introduction
This matter concerns the respective Applications for final parenting orders of the parties, being Ms Yi (“the mother”) and Mr Sedgwick (“the father”), in respect to the child, Z (“Z” or “the child”) born in 2010.
There is an another child of the parties’ marriage, Y (“Y”) born in 2009, who is the subject of child protection orders made by the Children’s Court of New South Wales on 27 August 2010 (“the child protection orders”) and, therefore, is not subject to these proceedings. Pursuant to those orders, Y lives with her paternal grandmother, Ms Sedgwick (“the paternal grandmother”) and her partner, Ms B (“Ms B”), who share parental responsibility for Y with the State of New South Wales.
Notwithstanding the child protection orders in respect to Y, the child and Y currently live in Sydney with the mother four (4) nights per week, and with the paternal grandmother and Ms B three (3) nights per week, being those nights that the mother is rostered to work night shifts in her employment as a health professional. The child currently spends no time with the father who resides in Queensland, however, she does regularly communicate with the father by FaceTime video call which is usually supervised by the paternal grandmother. The father previously spent time with the child supervised by either or both the paternal grandmother and Ms B but this arrangement ceased in December 2014 when the paternal grandmother refused to continue supervising the father’s contact with the child.
The father also has two (2) children from other relationships: an older child, X (“X”) born in 2007, from his earlier marriage with Ms Lind (“Ms Lind”), and a younger child, W (“W”) born in 2017, with his current partner, Ms C (“Ms C”). W, Z’s younger half-sister, currently lives with the father and Ms C in Queensland. X lives with her mother, Ms Lind, in Sydney and has no contact with the father.
That arrangement in respect to X is pursuant to final parenting orders I made on 20 August 2021 ([2021] FamCA 605), in separate proceedings that came before me during the period that the hearing of this matter was adjourned. It should be noted that there is significant overlap between the issues raised in this matter and those raised in the proceedings in respect to X. There are also a number of similarities, including the identities of the father and the Independent Children’s Lawyer, in both proceedings. A significant difference in those other proceedings, however, is that, other than to the extent of seeing the father during an interview for the purpose of preparing a family report, X had no communication with her father since December 2014, and I accepted, in those proceedings, that X did not wish to be compelled to see or communicate with the father.
Background
I will now set out the agreed facts relevant to this matter and, where controversial, the parties’ respective factual contentions. I will subsequently set out my findings in respect to contentious factual issues, where it has been necessary for a factual finding to be made in arriving at my conclusion as to the orders that I make in these proceedings.
In 1973, the father was born in Australia. He is currently aged 48 years.
In 1978, the mother was born in East Asia. She is currently aged 43 years.
In 2007, the mother moved to Australia from East Asia.
In 2007, X was born. She is currently aged 13 years.
In 2008, the parties commenced their relationship.
The father contends that, one (1) week after commencing their relationship, the mother became pregnant with Y, and the father was pressured into marrying the mother prior to Y’s birth to satisfy the extended maternal family. The father further attests that he has “never done a DNA test to verify if Y is [his] actual biological daughter”. That statement and factual contention by the father is relevant only to the extent that it provides some background circumstances to my finding that he committed serious acts of assault on Y, during the first six months of her life.
In 2008, the parties commenced cohabitation.
The father acknowledges that, during the course of the parties’ relationship, he consumed illicit drugs, being marijuana on occasions and ecstasy, which he attests he consumed only once or twice. For reasons which I set out below, I am satisfied, however, that the father has understated the extent to which he had an issue with substance abuse in the past.
On 11 August 2008, the father initiated parenting proceedings in respect to X.
The mother contends that, in late 2008, an incident occurred whilst she was pregnant with Y, wherein the father kicked her in the stomach. The father denies that such an incident occurred. I will subsequently discuss, in greater detail, the mother’s allegations that the father engaged in acts of family violence towards her. To be clear, it has not been necessary for me to find that the mother was physically assaulted by the father, and it has been sufficient, for the purposes of my decision, to determine that the mother has been subject to a pattern of shouting and verbally abusive conduct on the part of the father. As will be explained in greater detail below, I have found, however, that the father committed serious acts of child abuse in respect to Y.
In 2009, Y was born in Australia. She is currently aged 12 years.
In the period from May through to October 2009, the mother was the primary carer and parent responsible for all aspects of Y’s care and welfare. The mother contends that the father assisted her in caring for Y, whenever he could. Comparatively, the father contends that he was rarely home alone during the time that Y was in the parties’ care. I am satisfied, however, that the father assisted the mother to care for Y whenever he could, in circumstances where the father acknowledged being retrenched from his employment in late 2008 or early 2009 and, subsequent to that period, that he was not engaged in full-time employment, however, he could not recall if he was then engaged in part-time employment.
The mother further contends that, in the period from arriving in Australia in 2007 until the parties’ formal marriage in 2009, she undertook English language classes in accordance with the requirements of her student visa. The father, as she contends, cared for Y during those times that she was undertaking her English studies. Comparatively, the father contends that the mother has overstated the extent to which she undertook English studies in accordance with her visa requirements, however, the father could not recall whether the mother had resumed her studies after Y’s birth and, if so, when that occurred. I am satisfied, however, that the mother did undertake English studies following Y’s birth and that, on those occasions when she did participate in those studies, the father did care for the child on his own. The identity of the persons who cared for Y during the first six months of her life is significant, as it goes to the issue of opportunity to inflict the serious injuries which were perpetrated upon her.
On 15 September 2009, the father and Ms Lind, the father’s first wife and X’s mother, divorced.
Shortly after, the parties formally married in Australia. On that day, Y was placed in the care of the paternal grandmother and her partner, Ms B. The timing of that event is significant because, as I will explain below, I am satisfied that Y sustained a serious injury after that date, and it would not have been possible for the paternal grandmother or Ms B to have inflicted those injuries.
On 13 October 2009, the parties attended upon a general practitioner with Y, in respect to swelling and bruising observed by the mother on Y’s left arm. The general practitioner, in turn, referred Y to the Emergency Department at the J Hospital (“the J Hospital”). Subsequently, the parties brought Y to the Emergency Department of the J Hospital for assessment, which revealed that Y had a number of bone fractures across her body, which were in various stages of healing. The extent of Y’s injuries will be set out in greater detail below.
As a result, a referral was made to a New South Wales Joint Investigation Response Teams (“JIRT”) unit with respect to Y, who became the subject of a joint investigation of the Department of Family and Community Services, as the Department of Community and Justice was then named (“the Department”), the New South Wales Police Force and the Child Protection Unit (“the CPU”) of the J Hospital.
On 14 October 2009, the parties were interviewed by Dr K, consultant paediatrician of the CPU, and Suburb L Police JIRT officers, who also interviewed the paternal grandmother on 1 December 2009, in respect to Y’s injuries. Immediately following, the CPU concluded that no reasonable history, as provided by the parties, could account for Y’s injuries and, as a result, the Department removed Y from the parties’ care and placed her under the parental responsibility of the Minister. The mother contends that, at the time of Y’s admission, she did not know the cause of Y’s injuries, however, she now believes that the father inflicted those injuries. The mother further contends that, at that time, she could not leave the father because he was sponsoring her partner visa and financially supporting her. Comparatively, the father contends that he does not know the cause for Y’s injuries and cannot explain how the injuries occurred without the mother’s awareness.
In October 2009, care proceedings were commenced in the Children’s Court of New South Wales in respect to Y. Around this time, the parties became aware that the mother was pregnant with Z, however, they did not disclose this to the Department. The mother contends that the parties concealed her pregnancy because she feared Z would also be removed from her care. For reasons that I will set out below, I am satisfied that was the case.
In late 2009 or early 2010, the mother travelled to East Asia while pregnant with Z to give birth.
In 2010, Z was born in East Asia. She is currently aged 11 years.
In August 2010, the mother returned to Sydney with Z using an East Asian passport issued under Z’s East Asian name. The parties did not disclose the fact of Z’s birth to the Department, or to the Children’s Court of New South Wales in which the hearing of the Department’s application, in respect to ongoing parenting arrangements concerning Y, were then on foot.
In the period from August 2010 through to when the mother travelled overseas to East Asia with Z in early 2013, Z remained in the care of both parties. During that time, the mother was Z’s primary carer, although I accept the father also contributed to her care.
On 27 August 2010, the Children’s Court of New South Wales made child protection orders in respect to Y, allocating parental responsibility for Y jointly to the Minister for the Department, and the paternal grandmother and Ms B, and providing that Y was to live with the paternal grandmother and Ms B. Those orders also provided for Y to spend time with the parties, supervised by the paternal grandmother or Ms B, at least five (5) times each year or as agreed between the parties, the paternal grandmother and Ms B.
The mother contends that, following 27 August 2010, she spent supervised time with Y every Sunday and, occasionally, three (3) days per week, in accordance with an agreement between her, the paternal grandmother and Ms B. Comparatively, the father contends that, from 2009 through to 2014, the parties spent usually three (3) days per week with Y at their home, without the supervision of the paternal grandmother or Ms B. It has not been necessary to determine which of the parties’ respective contentions in this respect is correct.
The mother contends that, in 2011, an incident occurred wherein the father threw a side table at the mother. The mother further contends that, after calling the police, she did not report the incident to the police out of fear of an earlier threat made by the father, that Z would be removed from their care, if she disclosed any incidents of physical violence. For reasons which I will set out below, I accept the mother’s evidence in this respect, however, I am not satisfied that the father intended to cause injury to the mother.
On 17 February 2011, final parenting orders were made, in respect to the parenting arrangements for X, between the father and Ms Lind. The orders provided for X to spend supervised time with the father every Sunday. As previously noted, there was, however, further litigation concerning parenting arrangements for X.
In July 2011, the father attended three (3) sessions with Mr O, personal counsellor through P Services, for assessment and possible treatment of anger management issues.
In August and September 2012, the father attended upon Dr Q, clinical and forensic psychologist, for three (3) counselling sessions.
On 18 December 2012, the father recommenced parenting proceedings in respect to X.
In 2013, the parties successfully applied for Australian citizenship and an Australian passport for Z.
In February 2013, the mother travelled to East Asia with Z and, shortly after arriving in East Asia, the Department contacted her in respect to Z. Upon the mother’s return to Sydney with Z, in May 2013, she was again contacted by the Department in respect to Z. The mother contends that the Department supported her plan to separate from the father. She further contends that the Department informed her that Z would not be removed from her care if she separated from the father and, as a result, she chose to do so. Comparatively, the father contends that the parties separated as result of the mother being pressured by the Department to leave the father, which gave rise to her belief that, if she did not leave the father, Z would be removed from her care.
On 14 June 2013, the father was interviewed by caseworkers from the Department in respect to Z and Y. That interview is important in the context of this matter, and the relevant parts of that interview are set out in greater detail below.
In 2013, the parties separated. I accept that one of the reasons motivating the mother was her concern that, if she did not do so, there was a risk that the Department would remove Z from her care.
On 26 August 2013, the mother and the Department entered into a Child Protection Case Plan in respect to Z. The plan required all contact that the father had with Z be supervised. That plan also required the father to attend counselling for anger management and psychological control, and that the mother access supportive services including individual counselling and legal advice.
Between 2013 and December 2014, the father spent time with Y and Z, together with X during X’s contact visits with him, supervised by either or both the paternal grandmother and Ms B at their home.
In 2014, the father and Ms C commenced their relationship.
The father contends that, since at least 2014, he has not used any illicit drugs. No evidence has been presented to contradict that evidence, and I accept that the child is not at risk in the father’s care as a result of the potential to be exposed to the father’s illicit drug use.
On 29 August 2014, final parenting orders were made in respect to the parenting arrangements for X between the father and Ms Lind. The orders provided that X spend time with the father supervised by the paternal grandmother or Ms B on alternate weekends. For various reasons, which are set out in my decision in the parenting proceedings in respect to X ([2021] FamCA 605), parenting arrangements reflecting those orders broke down and various other parenting orders were subsequently made.
In July or August 2014, the Department closed its case in respect to Z, who was then in the mother’s sole care. The result of their investigation was a determination that the child would not be at risk of harm in the mother’s care.
The mother contends that, from August 2014, she and Z spent overnight time with Y at the paternal grandmother’s home, to which the Department raised no concerns. The mother further contends that the father was also present on occasions, but only spent time with Y and Z during the day. The mother was not challenged on that evidence, and I accept that, in the period from August until December 2014, both the parties, at various times, spent time with both Y and Z, with that time being loosely supervised by the paternal grandmother and/or her partner.
In late 2014, an incident occurred between the parties at a children’s festival that resulted in police being called. The mother contends that, whilst she was holding Z and waited for the paternal grandmother and Ms B to arrive, the parties had an argument about finances. The mother further contends that, after the father became angry in the course of arguing with her, he attempted to take Z from the mother and punched her when she tried to stop him. Comparatively, the father contends that, as a result of the mother videorecording him with a mobile phone against his expressed objections, he took the mobile phone from her hands and the mother began to draw attention by screaming. The father further contends that he informed the police that the mobile phone belonged to him, before returning it to the mother, and that the police never questioned him about assaulting the mother. The father denies that he attempted to take Z, and denies being verbally aggressive or physically violent towards the mother. This incident has some significance in the proceedings, and will be considered in greater detail below.
On 27 September 2014, the parties divorced.
On 26 December 2014, the father spent time with Z supervised by the paternal grandmother. Immediately following, the paternal grandmother ceased supervising the father’s contact visits with X, Y and Z (collectively, “the children”). The mother contends that the paternal grandmother refused to further supervise the father’s contact visits as a result of him verbally abusing the paternal grandmother during the supervised visit with Z on this date. The mother further contends that this was the last time the father spent with Z supervised by the paternal grandmother. Comparatively, the father contends that, subsequent to 2014, the paternal grandmother supervised his time with Z on a few occasions, including Z’s birthday and at Christmas. The father denies that he was verbally abusive towards the paternal grandmother.
The father contends that, in 2015, the Department arranged for an alternative supervisor of the father’s contact visits with Y, however, he discontinued this alternative arrangement because Z would not be included in those supervised visits.
In 2015, the father and Ms C moved to south-east Queensland. The father contends that, in 2019, he and Ms C stayed in Sydney with W and spent time with Z on two (2) occasions. Comparatively, the mother contends that the father and Ms C have visited Sydney on three (3) occasions since their relocation to Queensland, and that the last visit occurred in July 2018. In giving oral evidence, the mother was, however, unclear as to whether the father did, in fact, spend some time with Z in 2019, and, in those circumstances, I accept the father’s evidence in that respect.
Since 2015, the father and Ms C have resided in Queensland, in a property owned by Ms C’s aunt and uncle, who also reside in the home. The father and Ms C live in the ground floor of the two (2) storey house, which has two (2) bedrooms.
On 15 January 2015, the father recommenced parenting proceedings in respect to X.
On 24 June 2015, the mother commenced these proceedings by filing an Initiating Application for interim and final parenting orders in the Federal Circuit Court of Australia. That Application sought interim and final orders allocating the mother sole parental responsibility for Z and providing that Z live with her and spend time with the father supervised by a professional contact service provider, M Contact Service.
The mother also filed a Notice of Risk of Child Abuse or Risk of Family Violence in the Federal Circuit Court of Australia, alleging the risk of family violence. That Notice set out, amongst other allegations, the circumstances of the injuries and subsequent child protection orders in respect to Y, and the mother’s contentions regarding family violence perpetrated by the father against her, including the incident that occurred in late 2014.
On 18 August 2016, the mother attended a Child and Family Meeting with Z and was interviewed by a family consultant, Ms D. The risks identified by the family consultant, as recorded in the Children and Parents Issues Assessment attached to a Child Responsive Program Memorandum filed on the same date, included risks of physical and emotional abuse of Z, and physical and verbal abuse of the mother, by the father. The family consultant also identified a risk of physical abuse of Z by the mother based on the father’s allegations in affidavit material that the mother may have been responsible for Y’s injuries. The recommendation of the family consultant was for Z’s time with the father to be supervised on an interim basis.
In 2017, W was born. She is currently aged four (4) years.
The mother contends that, in 2017, 2018 and 2019, her parents arrived from East Asia, and Y and Z spent time with their maternal grandparents in Sydney. The mother was not challenged on that evidence, which I accept.
The father contends that, in February 2019, he travelled with Ms C and W to Sydney for two (2) weeks and, during that visit, they spent time with Z. For reasons which I have set out above, I accept the father’s evidence in that respect.
On 20 and 21 November 2019, the parties and Ms C attended upon interviews with Ms D, family consultant, for the preparation of her family report. During the course of the interviews, Z spent time with the father, Ms C, W and X for the purpose of observations by the family consultant.
The father contends that, in November 2019, he again travelled with Ms C and W to Sydney for two (2) weeks and, during that visit, they spent time with Z. Comparatively, the mother contends that, on 24 November 2019, the father sent a text to the paternal grandmother at 2.00am cancelling the contact visit with Z planned later that day. His oral evidence in respect to this issue was unclear, with the father suggesting that, in response to a question from counsel for the Independent Children’s Lawyer, other than for the purpose of the Family Report, he had not seen the child since February 2019. While it is not a major issue in these proceedings, I will, however, give the father the benefit of that doubt, and accept that he did, in fact, spend time with Z in November 2019, in addition to the time he spent with Z in February that year.
In February 2020, a Child Safety officer from the Queensland Department of Child Safety, Youth and Women attended upon the father and Ms C’ residence to conduct an interview with respect to child safety concerns raised about W. Those concerns related to reports received of the father’s historic involvement with child protective services in New South Wales.
On 31 March 2020, the Queensland Department of Child Safety, Youth and Women sent a letter to the father and Ms C, notifying them that there would be no further action by the them in respect to W
Applications
Orders sought by the mother
The mother seeks that orders be made in accordance with her case outline document filed 15 April 2021, as follows:
1 [The mother have] Sole parental responsibility for the child Z.
2 That the child live with her [the mother] (agreed)
3 That the father shall spend time with Z under supervision at M Contact Service located at N Street Suburb S.
4 In the event that the child is unable to spend time with the father the mother is to notify the father by email as soon as practical.
5 In the event that the father is unable to spend time with the child the father is to notify the mother as soon as practical via email.
6 The parties are to keep each other informed of the following
a. Medical problems or illnesses suffered by the child while in their care
b. Medications prescribed for the child
c. School functions which the child is to attend and that allow for parental attendance
d. Any other matter relevant to the child’s welfare. (generally agreed)
7 That during any period referred to in these orders in the event of the child being hospitalised or receiving medical attention the parent spending time with the child shall notify the other person as soon as practicable after the first contact with either the medical practitioner medical centre or hospital. (in general terms agreed )
8 The father shall have the following communication with the child :
a. Liberal email communications as the child may request and the mother will facilitate such emails. (the father seeks an order for facetime and telephone communication once per week on a Sunday at 4pm when the child is not with him)
9 That for the purposes of communicating information between the parties the mother and the father shall communicate via email.
10 The father shall have liberty to contact the child’s school for reports merit cards any written materials pertaining to the child’s academic and extracurricular activities.
11 Each party shall refrain from making critical or derogatory remarks in relation to the other parent or in the presence or hearing of the child and each party shall do all things necessary to ensure that no third party makes critical or derogatory remarks about the other party in the presence or hearing of the child.(agreed)
12 That the mother shall be permitted to travel with the child to visit family in East Asia provided that the mother notifies the father of the intended travel not less than fourteen days from the date of departure and provided the father with the following:
a. Itinerary of departure and arrival dares
b. Telephone number to contact the child while overseas
c. Details of any travel insurance that covers the child in case of misadventure.
Counsel for the mother submitted that those orders, set out in her case outline document above, which are indicated with the term “(agreed)” are generally agreed between the parties.
Orders sought by the father
The father seeks that orders be made in accordance with his Minute of Orders provided to the Court by email sent 15 April 2021, as follows:
1. That the Mother and Father have equal shared parental responsibility for the child of the relationship namely Z also known as Z born … 2010 (“the child”).
2. That the child live with the Mother.
3. That the child spend time with the Father in Sydney as follows:
(a)For the first two months from 10:00am to 2:00pm on the first Saturday of each month commencing on the first Saturday after the date of these Orders supervised by Ms C at the commencement and conclusion of the time and with changeover to occur at Suburb R Shopping Centre at the commencement and conclusion of the time;
(c)For the next two months from 9:00am on Saturday to 3:00pm on Sunday on the first weekend of each month with changeover to occur at Suburb R Shopping Centre at the commencement and conclusion of the time.
(d)Thereafter from after school on Friday to before school on Monday on the first weekend of each month with the Father to collect the child from school at the commencement of the time and return the child to school at the conclusion of the time.
(e)From the commencement of Order 3(c) the Father shall spend time with the child in Queensland for the first week of the Autumn, Winter and Spring school holiday periods from the Saturday immediately following the last day of school from a time on that Saturday to be advised by the Mother at least 48 hours in advance depending on the availability of flights to 5:00pm on the following Friday or such other time on that Friday depending on the availability of flights as notified by the Father to the Mother at least 48 hours in advance with the Father to collect the child from and deliver the child to the MYC Airport at the commencement and conclusion of the time.
(f)From the commencement of Order 3(d) the Father shall spend time with the child in Queensland for the first half of the Christmas school holiday period in even-numbered years and the second half of the Christmas school holiday period in odd-numbered years. The Father shall collect the child from MYC Airport on the Saturday immediately following the last day of school at a time to be advised by the Mother at least 48 hours in advance depending on the availability of flights on that Saturday in even-numbered years and from MYC Airport on the day that falls at the mid-point of the holiday period from MYC Airport in odd-numbered years and return the child to MYC Airport at the conclusion of the time in both odd and even-numbered years.
(g)At all other times as agreed between the parties.
Father’s Day:
4. From 6:00pm on the Saturday immediately preceding Father’s Day to 6:00pm on Father’s Day each year.
Christmas:
5. In 2021 and every odd-numbered year thereafter from 9:00am on Christmas Eve to 3:00pm on Christmas Day.
6. In 2022 and every even-numbered year thereafter from 3:00pm on Christmas Day to 7:00pm on Boxing Day.
Easter:
7. From 6:00pm on Easter Saturday to 6:00pm on Easter Monday in 2023 and each odd-numbered year thereafter and from after school on the Thursday immediately preceding Good Friday until 6:00pm on Easter Saturday in 2022 and each even-numbered year thereafter.
Communication:
8. That the Father shall have communication with the child by FaceTime or telephone at 4:00pm each Sunday for up to 30 minutes if the child is not otherwise spending time with the Father.
Other Orders:
9. The parties shall use a Parenting App for the purposes of exchanging non-urgent information pertaining the child including details of medical treatment and activities which concern the child and shall contact each other via SMS text message in the event of an emergency.
10. That on a without admissions basis the parties be restrained from consuming illicit substances or drinking more than the legal limit for driving after consuming alcohol in the presence of the child.
11. The parties shall advise each other as soon as reasonably practicable of any major medical issues involving the child and each party shall keep the other party informed of any required treatment or medication required in relation to the child and the parties shall ensure the proper administration of such medication and treatments is performed by them.
12. The parties shall keep each other advised of their current residential address and current telephone numbers and email addresses and shall provide the other party with details of any changes to these contact details within 7 days of such change.
13. Neither party shall denigrate the other party, their family or any other person with whom they live in the presence or hearing of the children or allow any third party to denigrate the other parent or any family member in the presence or hearing of the children.
14. The Mother shall authorise any school attended by the child to provide the Father with information pertaining to the child including school reports, details of school events and extracurricular activities such as sports and concerts and school photographs at his own cost.
15. That the Father be at liberty to attend school events such as sporting events, extracurricular activities and concerts to which parents are invited.
16. The Mother shall authorise any professional providers seen by the child to speak to the Father about her ongoing treatments, progress and interventions.
17. That until further Order each party, [the father] date of birth … 1973 and [the mother] date of birth … 1978, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child Z Sedgwick also known Z Yi born … 2010 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name/names of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s names on the Watch List until the Court orders its removal.
Counsel for the father did not press his Application for proposed order 1 of his Minute of Orders in these proceedings, on the basis that the mother consents to an order that her exercise of sole parental responsibility for the child be subject to a consultation process with the father. In addition, during the course of the hearing, the father consented to proposed order 12 set out in the mother’s case outline document filed 15 April 2021 and, as a result, did not press proposed order 17 of his Minute of Orders.
Orders sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer sought orders be made in accordance with their case outline filed 19 April 2021, as follows:
1.The mother be allocated all aspects of Parental Responsibility
2.Z lives with her mother
3.Z spends time with her father, as recommended by the Family Report, supervised at a contact center 6 times per year.
By way of the written submissions filed 19 May 2021, counsel for the Independent Children’s Lawyer advised the Court that the Independent Children’s Lawyer consents to proposed orders 4 to 12 sought by the mother, in her case outline document filed 15 April 2021.
Evidence
The mother relied upon the following documents:
(a)Amended Initiating Application filed 2 April 2021;
(b)Affidavit of the mother filed 6 April 2021 (“Affidavit of the mother”);
(c)Family Report of Ms D dated 26 February 2020;
(d)Child Responsive Program Memorandum of Ms D dated 18 August 2016;
(e)Notice of Risk filed 24 June 2015 in the Federal Circuit Court of Australia;
(f)Tender bundle of subpoena documents provided to the Court on 20 April 2021; and
(g)Written submissions filed 28 May 2021 (“the mother’s written submissions”).
The father relied upon the following documents:
(a)Response to an Initiating Application filed 29 January 2016 in the Federal Circuit Court of Australia;
(b)Minute of Orders provided to the Court on 15 April 2021;
(c)Notice of Risk filed 29 January 2016 in the Federal Circuit Court of Australia;
(d)Affidavit of the father filed 13 April 2021, together with annexures (“Affidavit of the father”);
(e)Affidavit of Ms C filed 16 April 2021; and
(f)Written submissions filed 10 June 2021 (“the father’s written submissions”).
The Independent Children’s Lawyer relied upon the following documents:
(a)Family Report of Ms D dated 26 February 2020;
(b)Annexures ‘A’ and ‘B’ to the Affidavit of Ms T filed 30 November 2010 in the parenting proceedings between the father and Ms Lind in the Federal Circuit Court of Australia;
(c)Tender bundle of subpoena documents provided to the Court on 18 April 2021;
(d)Supplementary tender bundle of subpoena documents provided to the Court on 21 April 2021; and
(e)Written submissions filed 21 May 2021 (“the Independent Children’s Lawyer’s submissions”).
After the conclusion of the hearing of evidence, and prior to final oral submissions, the Independent Children’s Lawyer sought leave to reopen their case in order to tender three (3) video recorded interviews conducted by the Suburb L JIRT officers of the NSW Police Force, in relation to its investigation into the injuries sustained by the child Y. By consent, that leave was granted and, accordingly, the Court also received into evidence, marked as ‘Exhibit 10’, police interviews with:
(1)The mother, which took place on 14 October 2009 at Suburb CC Police Station;
(2)The father, which also took place on 14 October 2009 at Suburb CC Police Station; and
(3)The paternal grandmother, which took place on 1 December 2009 at Suburb R Police Station.
The following exhibits were relied upon:
(a)The mother’s tender bundle of documents provided to the Court on 20 April 2021 (‘Exhibit 1’);
(b)Annexures “B” and “C” attached to the Affidavit of Ms T filed 30 November 2010 in the parenting proceedings between the father and Ms Lind in the Federal Circuit Court of Australia (‘Exhibit 2’);
(c)Report of Dr K dated 27 October 2009 (‘Exhibit 3’);
(d)New South Wales Police Force Criminal History and Bail Report, being pages 1–3 of the Independent Children’s Lawyer’s Tender Bundle (‘Exhibit 4’);
(e)Safety assessment of the Department of Children, Youth Justice and Multicultural Affairs of Queensland, being pages 4–18 of the Independent Children’s Lawyer’s Tender Bundle (‘Exhibit 5’);
(f)New South Wales Department of Family and Community Services notes of interview with father on 14 June 2013, being pages 30–42 of the Independent Children’s Lawyer’s Tender Bundle (‘Exhibit 6’);
(g)Letter dated 29 July 2014 sent by the New South Wales Department of Family and Community Service to the mother, being page 43 of the Independent Children’s Lawyer’s Tender Bundle (‘Exhibit 7’);
(h)New South Wales Department of Family and Community Service Weekly Allocation Meeting Event Review Form dated 4 September 2014 being pages 46–49 of the Independent Children’s Lawyer’s Tender Bundle (‘Exhibit 8’);
(i)Family Report of Ms D dated 26 February 2020 (‘Exhibit 9’);
(j)Interviews by Suburb L JIRT officers of the New South Wales Police Force, conducted with the mother, the father and the paternal grandmother (‘Exhibit 10’);
(k)Assessment Report of Dr U of the Child Protection Unit of the V Hospital dated 27 April 2010 (‘Exhibit 11’);
(l)Written submissions of the Independent Children’s Lawyer filed 21 May 2021 (‘Exhibit 12’);
(m)Written submissions of the mother filed 28 May 2021 (‘Exhibit 13’); and
(n)Written submissions of the father filed 10 June 2021 (‘Exhibit 14’).
Credit
The Full Court has cautioned trial judges against making adverse findings in respect to a party’s credit in parenting proceedings. In that context, in Adamson & Adamson (2014) FLC 93-622, the Full Court at [65], agreeing with the decision of Kent J in Carlson & Fluvium [2012] FamCA 32, said:
It follows from [the observations of Kent J] that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to [by Kent J].
However, that guidance provided by the Full Court does not displace the Court’s obligation to consider a number of matters referred to in the Act to assist the Court in determining what orders are in the best interests of the child including and, as set out in s 43(1)(ca) of the Family Law Act 1975 (Cth) (“the Act”), my statutory obligation to have regard to “the need to ensure protection from family violence”. In this case the assessment of the credibility and reliability of the parties’ evidence is crucial to my determining a central issue in these proceedings. That issue is whether the father was responsible for inflicting serious injuries on the parties’ eldest daughter, Y.
In McGlen-McLeod v Galloway [2012] NSWCA 368 at [87], Tobias AJA, with whom Allsop P and Campbell JA agreed, referred with approval to the test for assessing the truth of a witness’s evidence as being stated by Tugendhat J in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at 73, where it was said:
There is great assistance to be obtained from extra-judicial writing of Lord Bingham in a chapter headed “The Judge as Juror: The Judicial Determination of Factual Issues” … Lord Bingham cited in Sir Richard Eggleston QC Evidence, Proof and Probability (1978), 155 who set out the main tests to be used by a judge to determine whether a witness is lying or not.
(1)the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred;
(2)the internal consistency of the witness’s evidence;
(3)consistency with what the witness has said or deposed on other occasions;
(4)the credit of the witness in relation to matters not germane to the litigation;
(5)the demeanour of the witness.
Highly relevant in this matter is that, in the context of the third test proposed by Lord Bingham, the father’s evidence in this matter is inconsistent with statements he made to investigators from the Department, in an interview which they conducted on 14 June 2013. The aspects of the father’s evidence, relevant in that respect, will be set out below.
Of further relevance is the inherent improbability of the implied assertion, set out in his Affidavit, that the paternal grandmother’s partner, Ms B, may have been responsible for inflicting Y’s injuries. In that respect, the father attempts, in paragraph 15, to make a connection between his assertion that Ms B was the subject of bullying allegations in her place of employment and the fact that she was “also in the pool of 5 people included and questioned by police in regards to Y’s injuries”. As will be noted, Ms B and the paternal grandmother cared for Y, when both or either of the parents were not present, on just one occasion, and the evidence clearly establishes that Y’s injuries were inflicted over a period of several months. The father’s credibility is diminished by his unjustified attempt to implicate the paternal grandmother and Ms B as the perpetrators of Y’s injuries.
Further, relevant to the first test proposed by Lord Bingham, at paragraph 34 of his Affidavit, the father asserts that “only [the mother] who was Y’s primary carer for the first five months of her life until she was removed from our care could say what happened but she has never done so”. The evidence presented in the proceedings establishes that there were a number of occasions when Y was in the father’s sole care, including those times when the mother was attending English language classes. The father further implies that the mother was responsible for Y’s injuries by stating, in that paragraph, “[l]ooking back on that period now [the father] believe[s] that it was possible the Applicant [mother] was suffering from postnatal depression”. This is an opinion, however, to which I give no weight because, first, there is no evidence before the Court to suggest that the mother was, in fact, suffering from post-natal depression, and, further and more relevantly, in light of the past admission by the father, to which I will refer, that it was he, and not the mother, who was responsible for Y’s injuries.
In that respect, for reasons which I set out below, I am satisfied that, during the course of an interview with officers from the Department, the father admitted to causing Y’s injuries and, further, stated that the only other person who could have potentially caused those injuries, that is, the mother in these proceedings, was not responsible for them. The father’s continuing denial of responsibility for causing Y’s injuries in these proceedings and, indeed, his attempt to attribute responsibility to the paternal grandmother, her partner and the mother, has damaged his credibility as a witness in these proceedings. This is in the context were that denial is in respect to a crucial issue in this matter.
Specifically, the father’s denial of his responsibility for Y’s injuries and his attempt to sheet home responsibility on the mother, the paternal grandmother and Ms B has led me to conclude that, in giving evidence regarding Y’s injuries, the father has engaged in an act of deliberate falsehood which does him no credit, and casts doubt on the veracity of his evidence generally including in respect to his denial of engaging in abusive and coercive and controlling conduct towards the mother and the paternal grandmother.
In terms of the fourth test proposed by Lord Bingham, the credibility of both the father and the mother is adversely impacted by the fact that, as contended by the Independent Children’s Lawyer, they both engaged in deception to hide Z’s existence from the Department, and also the Children’s Court of New South Wales at a time when the Court was determining orders to be made in relation to Y. I respectfully agree with the submission at paragraph 18 of the Independent Children’s Lawyer’s written submissions, as follows:
The Children’s Court had to determine whether the parents posed an unacceptable risk to Y. It would have been relevant in the Court’s determination of that issue to know that Z had been born and was in the care of the parents. Y was 14 months of age at the time of the Children’s Court hearing, Z was 7 weeks old. It is more challenging to look after 2 children under the age of 14 months than one child. It would also have been relevant to Her Honour in determining whether the parents were being truthful in relation to how Y’s injuries occurred.
The mother’s credibility has been impacted by her admission that she failed to disclose Z’s birth to the Department and the Children’s Court, in circumstances where it could reasonably have been expected that the Department and the magistrate hearing the child protection case, in respect to Y, would have expected that disclosure to have been made. The mother states, at paragraph 14 of her Affidavit, that she failed to disclose her pregnancy and Z’s existence, because she was concerned the Department would remove Z from her care once she was born. While I understand the mother’s concern about losing custody of Z, and the circumstances which confronted the parties at the time, that concern was not justification for failing to disclose her pregnancy and, subsequently, the birth of Z. In circumstances where Y had, in the months immediately before, sustained serious injuries, there was a real possibility that Z was being introduced to a situation that would expose her to risk of physical harm.
More generally, the mother was a poor historian when asked questions in respect to her contentions set out in her Affidavit, including, for instance, her difficulties attempting to recall the events which had occurred at the G Public School in 2014. It was also clear that, on some occasions, the mother found it difficult to understand the questions asked of her, in circumstances where English is her second language. Nevertheless, I am satisfied that the mother did her best to answer questions in a truthful manner and, even in circumstances where her memory was unclear as to what transpired in 2014, she was prepared to admit that lack of clarity in her recall.
A significant reservation that I have in respect of the evidence of both parties is, as indicated, in respect to the father’s denial of causing the serious injuries to Y during the period she remained in the parties’ care. Equally, the evidence provided by the mother, in these proceedings, as to how Y sustained at least some of her injuries is implausible. Specifically, I am not satisfied that Y sustained injuries as the result of an incident where the mother fell on a bed while holding Y. In circumstances where I have found that Y was in the care of either or both the parties, during the first approximately six months of her life, and in circumstances where I have found that Y’s injuries were sustained over a period of time, it is difficult to comprehend why Y was not taken for medical treatment at an earlier time.
One cannot help but get the uncomfortable impression that the mother knew, and knows, far more about the circumstances, in respect to the injuries sustained by Y, then she has revealed to the Department, the police, the Children’s Court and, indeed, this Court. As noted by Dr U in his Report, for the purposes of the proceedings in the Children’s Court, marked ‘Exhibit 11’ in these proceedings, it could reasonably have been expected that a reasonable parent would have taken Y for treatment in respect to her injuries, and at a much earlier time and with greater urgency.
At paragraph 13 of her Affidavit, the mother attests to her belief that, at the time Y sustained her injuries, she could not leave the father because she “was in Australia under a partner Visa sponsored by the Father”, and, consequently, if her relationship with the father ended, her visa would be cancelled and she would have no option but to return to East Asia. The mother further stated that she was not working at the time and, as a result, she was financially dependent upon the father. I accept that, at the time Y sustained her injuries, the mother was in a position of vulnerability as a result of her migration status. However, the mother’s insecurity in that respect did not justify her inadequate disclosure to law enforcement investigators as to how Y sustained her injuries, nor did it justify her inadequate disclosure of those circumstances to this Court.
Nevertheless, as will be set out in greater detail below, despite her poor recall of that event in 2014, the mother’s evidence, that she has been the subject of abusive, controlling and coercive conduct on the part of the father, is consistent with reports of similar conduct by the father’s previous partners, and also by his own mother, the paternal grandmother. The mother’s evidence is also consistent with the findings that I have made that the father engaged in serious and sustained acts of abuse, in respect to their eldest daughter, Y. Having regard to that consistency, I have, therefore, given weight to the mother’s evidence that she was subject to a pattern of abusive, coercive and controlling conduct on the part of the father, and that this was predominantly in the form of verbal abuse.
The law – concepts and principles
Part VII of the Act sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B sets out the objects and principles of Pt VII. These 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.
More generally, the Act makes clear that in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c)).
The presumption of equal shared parental responsibility
Section 61DA(1) of the Act provides that the Court must apply a presumption that “it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”.
During the course of the proceedings, counsel for the father accepted that an order should be made allocating sole parental responsibility to the mother. However, the fact that the parties agree that an order for equal shared parental responsibility should not be made does not displace the Court’s obligation to consider the provisions under s 61DA. In that respect, the Full Court in Dundas & Blake (2013) FLC 93-552 held, at 87,409, that s 61DA of the Act is mandatory. in the sense that the presumption must be applied until the Court is satisfied that it would not be in the interests of the child for the presumption to apply. In that context, the Full Court said:
In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted.
Relevantly for these proceedings, s 61DA(2) and (4) provides that:
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
…
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Abuse is defined in s 4 of the Act in the following terms:
abuse, in relation to a child, means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Family violence is defined in s 4AB(1) of the Act as follows:
(1)For the purposes of this Act, 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.
Section 4AB(2) provides a non-exhaustive list of behaviour that may constitute family violence and relevantly for these proceedings includes:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; …
Section 4AB(3) provides that “a child is exposed to family violence if the child see or hears family violence or otherwise experiences the effects of family violence”. Section 4AB(4) provides a non-exhaustive list of situations that may constitute a child being exposed to family violence and includes:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family…
In this matter, for reasons which, I will set out in greater detail, I am satisfied that the father has engaged in conduct that constitutes family violence as defined in the Act, and, most relevantly, I am further satisfied that such conduct by the father includes his committing serious acts of child abuse, in respect to Y. Consequently, the presumption of equal shared parental responsibility should not apply in this matter.
As an order for equal shared parental responsibility will not be made, the pathway set out in s 65DAA of the Act does not apply to the task before the Court. That is, the Court is not required to apply a presumption that, in those circumstances, the child should spend equal or substantial and significant time with each of the parties. Accordingly, the Court is “at large” to consider what arrangements will promote the best interests of the children having regard to s 60CC and the considerations contained therein. As will become clear from the reasons set out below, as a result of the issue of risk to the child, I consider that it would be inappropriate to make an order for the child to spend substantial and significant time with the father.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a parenting order, the Court “must regard the best interests of the child as the paramount consideration”. This obligation is also reinforced in s 65DAA of the Act.
Section 60CC sets out the list of matters that the Court must have regard to in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all of the s 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: see s 60CC(2)(b) of the Act.
Meaningful relationship
Section 60CC(2)(a) of the Act requires me to consider the “the benefit of the child having a meaningful relationship” with each of the parties. On the other hand, I must consider the issue of the risk associated with the children possibly being subject to physical or psychological harm, neglect or abuse in the care of either of the parties.
In Finton & Kimble [2017] FCWA 106 at [37], Walters J said “the Court is required to consider, as one of a large number of factors, the benefit to the child of having such a meaningful relationship”.
In that decision, his Honour referred to several other authorities, including the Full Court decision in Jurchenko & Foster (2014) FLC 93-598 at [123], where the Court noted that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
Similarly, in Cotton and Cotton (1983) FLC 91-330 at 78,252, Nygh J qualified the desirability of a child maintaining a meaningful relationship with both parents in the following terms:
And that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
In Loddington & Derringford (No 2) [2008] FamCA 925 at [169], Cronin J noted that there is no legislative definition of the phrase “meaningful relationship”, however, in typically clear and concise fashion, his Honour stated that, for there to be a meaningful relationship as contemplated by the Act, “it must be healthy, worthwhile and advantageous to the child”. I respectfully agree with that analysis by his Honour.
As will be explained, in this matter, in balancing the primary considerations set out in s 60CC(2) of the Act, I am satisfied that it is only in the best interests of the child to have a meaningful relationship with the father if, in doing so, the risk to her is properly addressed.
Protection from harm
The second primary consideration, as set out in s 60CC(2)(b) of the Act, is the question as to whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent.
As noted, it is clear from s 60CC(2A) of the Act that greater weight is to be given to the primary consideration set out in s 60CC(2)(b), that is, “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” over the benefit of maintaining meaningful relationships. Specifically, it is necessary to determine whether the risk of harm to the child, in having access to a parent, outweighs the possible benefits to them from having that access.
Writing extra-judicially, the Honourable John Fogarty AM, a former judge of this Court, in ‘Unacceptable Risk: A Return to Basis’ (2006) 20 Australian Journal of Family Law 249, said:
…unacceptable risk in the High Court’s formulation [in M v M (1988) 166 CLR 69 (“M v M”)] requires two separate steps Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.
The task of determining whether an unacceptable risk, in terms of s 60CC(2)(b) of the Act, exists is assisted by having regard to the following principles:
·In devising tests to determine whether unacceptable risk exists, 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 abuse and the possibility of benefit to the child from parental access: see M v M (1988) 166 CLR 69 (“M v M”) at 78; B and B (1993) FLC 92-357 at 79,778.
·It is now well established that “unacceptable risk” does not arise solely in respect of allegations of physical or sexual abuse. The “test” of “unacceptable risk” also requires assessments of risk of future physical and emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M at 77.
·Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5 at [146]–[148].
·Determining the issue of risk essentially involves applying a risk matrix whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence: see Deiter & Deiter [2011] FamCAFC 82 at [61]. That is, there is an obligation on a trial judge to evaluate, not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N and S and the Separate Representative (1996) FLC 92-655 at 82,713 (per Fogarty J) cited with approval in Napier and Hepburn (2006) FLC 93-303 and in Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96].
·The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or some only of which are proved to that standard: see Johnson and Page (2007) FLC 93-344 at 81,890–81,891 endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249.
·While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act1995 (Cth) (“the Evidence Act”), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact, “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”: see the Hon Richard Chisholm, ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, (Conference Paper, Children’s Court Conference, Parramatta, 1 September 2010).
·Having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko & Blinko [2015] FamCAFC 146 at [83], referring to Russell & Close [1993] FamCA 62.
Additional considerations
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. To assist analysis, those considerations can conveniently be grouped under the following headings:
(a)Issues relating to the child – her views, level of maturity, culture and relationships:
·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
(b)Issues relating to the parents – decision making, time spent with the child, fulfilled obligations, attitude, capacity and exercise of responsibility:
·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
·Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
(c)Issues of family violence:
·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
(d)Effect of change:
·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
(e)Practical difficulty of implementation:
·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)Avoiding further proceedings:
·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
(g)Other relevant matters :
·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
Consideration
I will set out those matters relevant to the s 60CC(3) additional considerations before discussing the primary considerations of ‘meaningful relationship’ and ‘issue of risk’, and the issue of parental responsibility and overseas travel.
Additional considerations
Issues relating to the child – her views, level of maturity, culture and relationships: ss 60CC(3)(a), (b), (g) and (h)
Z is currently 11 years old and, while her wishes are not determinative of this matter, she has a right to have her wishes considered by the Court. In that respect, I respectfully agree with the statement of Ms D, the family consultant, at paragraph 97 of her Family Report, that, while the child is still young and her views should not be determinative, it is important that her views are considered.
Z has a close relationship with her sister Y, with whom she spends time in either the mother’s home or the paternal grandmother’s home. I am also satisfied that Z had a close relationship with her half-sister X until December 2014, at which time the parental grandmother refused to continue supervising the time that the children spend with their father.
The father was not challenged on his evidence, as set out in paragraph 27 of his Affidavit, that Z has also met W on several occasions, including attending social outings with her half-sister on those occasions when the father has visited Sydney. I also accept that Z regularly communicates with W through FaceTime calls, although the regularity of those calls was an issue between the parties, with the mother contending that the calls occurred approximately every month whereas the father contends that they occurred on a weekly or fortnightly basis. In circumstances where, unlike the father, the mother may not necessarily be present on each occasion that such FaceTime calls occur, I accept that Z communicates with W by Facebook on an approximate weekly or fortnightly basis. For reasons which I set out below, I am satisfied that an order should be made facilitating that communication occurring into the future.
At paragraph 97 of her Family Report, the family consultant noted statements made by the child that “while she misses her father and wants to spend time with him, she only wants to spend time with him with her grandmother present.” In her written submissions, counsel for the mother noted that, at the time of hearing, the child was aged 10 years and 11 months and conceded, on behalf of the mother, that it was significant that the child expressed a view that she wanted to see her father, albeit in a supervised setting. Z’s wish to spend time with the father is in circumstances where the child has familiarity with her father, as a result of the FaceTime communication that she has with him.
In considering those views, it would be inappropriate to ignore the child’s stated wish for her time with the father to be supervised. This is in circumstances where Ms D recorded, in her Report, the child having advised that “she has witnessed her father being very angry at times and she indicated that this causes her to not feel completely safe in his care”. Significantly, the family consultant also reported that the child also expressed wishes to have Y present at those times she spends with the father, which Ms D observed “also seems related to helping her feel comfortable”.
Another relevant factor in this matter is Z’s East Asian heritage on her maternal side. Appropriately, in my view, the father withdrew his objection to the mother travelling overseas with Z, which will enable the child to spend some time with her maternal family and to experience her East Asian culture.
Issues relating to the parents – decision making, time spent with the child, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i)
The mother was not challenged on her assertion, set out in paragraph 9 of her Affidavit, that after Y was born, in 2009, she was that child’s primary carer and responsible for all aspects of Y’s care and welfare, such as feeding, bathing and dressing Y, putting Y to bed and supervising Y. The mother further attests that the father assisted her “whenever he could”, and I accept that this was the case.
There is some inconsistency in the mother’s evidence in respect to the circumstances and the manner in which she decided to separate from the father. At paragraphs 19 and 20 of her Affidavit, the mother attests that, during her visit to East Asia in early 2013, the Department became aware of Z’s existence and enquired of the mother about her “plan” in respect to the child. The mother states that she advised the Department of her intention to separate from the father and, in response, as she further attests, the Department advised her that they would support the mother if she returned to Australia with Z. I accept that the mother’s decision to separate from the father was motivated by advice she received, from the Department, that they would not seek to have Z removed from her care, if she did not continue to live with the father.
I am satisfied that, consistent with managing the potential risk faced by the child, it is possible for the child to have a meaningful relationship with the father, if orders are made for her to spend time with the father, in accordance with the orders proposed by the Independent Children’s Lawyer, being on six (6) occasions per year. For reasons which I will subsequently set out, I have accepted the merits of the submissions by counsel for the Independent Children’s Lawyer in that respect. In doing so, I have had regard to the risk to the child that, if she were to spend a greater amount of time than that with the father, it would, in my view, increase the probability of the father losing his temper and engaging in inappropriate conduct. At the same time, it is greater than the four (4) occasions per year as proposed by the mother (Transcript 20 April 2021, p.21 lines 8–16).
Also relevant to this issue is the father’s Application for orders that the child have regular FaceTime and/or telephone time with him. In circumstances where I accept that the child has had such regular communication with the father and also, significantly, with W, on an average basis of approximately once or twice per month, I am satisfied that it is in the child’s best interests for communication of that nature to continue. At the same time, however, I will not make orders imposing an obligation on the mother to require the child to communicate with the father at a specified time. As the child enters her teenage years, it is inevitable that she will be distracted by other activities on occasions, and may not be in a position to communicate with the father at the prescribed time. That potentiality, in my view, presents a risk of further disputation between the parties and, accordingly, on that basis, I will not make a prescriptive order in respect to the time that the child is to communicate with the father, by way of electronic means.
Protection from harm
Issue of risk
At paragraph 91 of his Affidavit, the father attests to having consumed marijuana on occasion in the past, however, he states that he has not used drugs for at least seven years. At paragraph 92 of his Affidavit, he states that he did consume ecstasy “recreationally on 12 occasions”, though this appears to be a typographical error in his Affidavit and I infer that it was intended to be “1 or 2 occasions”.
I am satisfied that the father has failed to disclose the extent to which he did, in the past, have an issue with substance abuse. In that respect, the interview notes recorded by a caseworker from the Department on 14 June 2013, notes the father disclosing that he roughly handled Y, and stating that “it was a terrible time for me” and that he was “[with]drawing from drugs”, which had included using “alcohol, marijuana & s[ome]times ecstasy”.
The fact that the father has failed to acknowledge the extent to which he has suffered from substance abuse in the past, is a factor that I have taken into consideration in assessing the credibility and reliability of his evidence. There was, however, no evidence presented to contradict the father’s evidence that he has not used drugs for seven years and I do not consider that the child is at risk in the father’s care, as a result of issues related to his past history of substance abuse.
The primary risk in this matter is the propensity for the father to lose his temper, and to engage in angry and aggressive behaviour. In that respect, the family consultant referred to the mother’s description of the father as one that it is indicative of the father having “a very poor ability to control his emotions that he tends to lash out and take his frustrations out on others in a very aggressive, threatening and callous manner”. For the reasons which I have set out above, I am satisfied that this is the case.
Most relevant to reaching that determination, is my finding that, during the first five (5) months of her life, the father inflicted serious injuries on Y over a sustained period of time. When asked by counsel for the Independent Children’s Lawyer to comment on the significance of that finding, the family report writer, Ms D, responded:
I think that if your Honour finds that, my recommendations would – would remain as they are. I would have really serious concerns about Z’s safety with her father if those findings are made, and so I think it follows that her time with her father would either need – need to be supervised or not at all.
(Transcript 22 April 2021, p.153 lines 6–10)
At paragraph 93 of her Report, the family consultant stated that, in the event of the Court making the findings that I have made regarding the father’s conduct, it “would raise serious concerns about Z’s safety and wellbeing if spending unsupervised time in [the father’s] care”. By way of example, the family consultant stated:
For example, if [the father] was violent and abusive towards [the mother] during their relationship, there would be concern that [the father] could be violent or abusive towards his current partner and, if Z were exposed to this, it may have a very negative impact on her emotional wellbeing. It is well documented that children who are exposed to very severe or repeated incidents of violence or abusive behaviour from a parent towards another can develop emotional and mental health issues including anxiety, difficulty regulating their own emotions, problems with aggression, and negative impact on their emotional well-being can cause them difficulties engaging in school and with their peers. These emotional, mental health and social difficulties can persist into adulthood. Furthermore, if [the father] were violent towards his current partner and Z was exposed to this, she could be harmed incidentally during the episode of violence, or sometimes children are physically harmed as a result of trying to intervene in incidents of family violence. As such, if it is determined that it is likely that [the father] has been violent or abusive towards [the mother] during their relationship, or that he has a propensity for anger and to be abusive towards others, there may be significant risks for Z’s safety and well-being if spending time with him.
The family consultant expanded, in giving oral evidence, that her concerns, regarding the safety of the child in those circumstances, were not limited simply to the prospect of suffering similar physical abuse, particularly in circumstances where she is now 11 years old, but included the prospect of emotional harm. Specifically, the family consultant explained that the father’s engagement in those acts of abuse were an indicator of a risk of the father engaging in inappropriate behaviour more generally, in respect to the child. When asked to clarify her reference to the risk of the father behaving “inappropriately”, Ms D stated that the behaviour could include “behaving in a verbally abusive or verbally intimidating manner towards others, and could be a whole range of other behaviours” (Transcript 22 April 2021, p.154 lines 6–8). In that respect, Ms D further stated that the risk would include “the risk of exposure to abusive behaviour, verbally abusive, emotionally abusive; it can have a really, really negative impact on a child’s emotional well-being can cause them to be frightened, anxious, yes” (Transcript 22 April 2021, p.154 lines 33–36).
When asked to expand upon the impact to a girl aged 10 years, as the child was at the time of the hearing, of being exposed to conduct of that nature, Ms D responded:
I think that can be extremely frightening for – particularly, having met Z and, you know – she’s a – she seems like a very gentle, happy little girl – but for any child if they see a parent being aggressive towards other – another – become extremely angry, inexplicably or even if there was a – a reason – if they’re being aggressive to somebody, that would be extremely frightening for a 10-year-old child. And I think, yes, with – with – talking about family violence more broadly, that that’s the problem for – for children. They don’t know what to expect from this – this parent or person in the home who’s the perpetrator of family violence, and so they’re always on edge, never knowing what to expect, and it’s frightening for them, it’s anxiety-provoking. When something fearful happens it’s – it’s – it’s extremely frightening for them.
(Transcript 22 April 2021, p.154 lines 13–23)
In response to a question from counsel for the Independent Children’s Lawyer, Ms D agreed that, if it was found that the father had inflicted the injuries on Y in circumstances where he now failed to acknowledge that reality and show remorse, it had implications for the assessment of risk. In that respect, Ms D commented that:
When I do my assessments and, more broadly, when you’re looking at research, and – and just in my experience – that if somebody is able to acknowledge and show insight into their behaviour, their prospects for change is much greater. If they – they don’t acknowledge or have any insight to – into the fact that their behaviour has caused harm, then it’s likely that they’re going to repeat that same behaviour.
(Transcript 22 April 2021, p.154 lines 41–45)
In this matter, I have found that the father engaged in acts of serious physical abuse of Y during the first six months of her life. I have also found that the father is a person who is prone to becoming angry, and to engage in abusive, coercive and controlling conduct directed towards those persons with whom he has an intimate relationship. This includes the mother, the father’s former wife, Ms Lind, and the paternal grandmother and her partner, Ms B. In that respect I note, at paragraph 77 of her report, the family consultant refers to the child, herself, reporting having observed, in the past, the father being angry towards both the paternal grandmother and Ms B.
I have placed no weight on the reports of either treating therapists which the father attests to attending upon, being the reports of Dr Q and Mr O, which are attached as Annexures ‘B’ and ‘C’ respectively to the father’s Affidavit, which briefly state opinions to the effect that the father has addressed or otherwise does not have an issue with anger management. This is because those reports do not include a history that enables the Court make a determination of the basis upon which the report writers reached their respective conclusions in respect to any potential anger management issues. As a result of the matters to which I have referred in this decision, I am satisfied that he certainly does have issues managing his emotions and anger.
I am also satisfied that, despite previously acknowledging responsibility for causing Y’s injuries, the father now denies that he inflicted those serious injuries. Consequently, he has failed to acknowledge his conduct, nor show remorse for that conduct. I respectfully agree with, and accept, the opinions expressed by the family consultant in this matter, including her opinion that, in those circumstances, there is a greater risk of the father repeating such conduct in the future.
In summary, in this matter, I have made findings of fact that establish the postulation, upon which the family consultant foreshadowed a risk of harm to the child. This is in terms of the risk identified by Ms D in paragraph 93 of her Report, to which I have referred, and also in those relevant parts of her oral evidence which I have set out above. That risk is increased as a result of the father failing to acknowledge his own conduct, including, most relevantly, his abuse of Y, as well as his failure to acknowledge his propensity to anger and engage in aggressive and abusive conduct. Further, while the father attended two programs with the apparent purpose of dealing with issues of anger management, as a result of court orders for that to occur, the evidence of those attendances is not such that I am satisfied that the father has addressed the anger management issues to which I have referred. This is in circumstances where those reports did not acknowledge the fact that the father does, in fact, have anger management issues.
Accordingly, I am satisfied that there is an unacceptable risk of both physical and emotional harm in the child spending unsupervised time with the father.
Mitigation of risk
The father does not agree that Z’s time with him needs to be supervised. Specifically, at paragraph 68 of his Affidavit, the father opposes the time which the child spends with him being supervised by a contact centre. The father contends, however, at paragraphs 67 and 69, that if supervision is to occur, then such supervision should be provided by his current partner, Ms C.
As previously noted, the child wishes to spend time with her father, however, she has expressed a desire that the time she spends be supervised. At paragraph 97 of her Report, the family consultant stated:
It seems understandable that if her father has behaved in a way that has caused her to feel not completely safe and secure with him, that she would want other people present who can help her feel more secure. If Z does not feel secure enough to spend time with her father without another adult present, it may be very daunting for her to spend unsupervised time with [the father], particularly for a whole weekend, each alternate weekend. In addition, she has never spent any overnight time with [the father] and, as such, it may be likely that she could find it very difficult to begin spending each alternate weekend in his care.
In circumstances where I have found that the father has engaged in a pattern of angry and abusive conduct, and where, as recorded in paragraph 77 of the Family Report, the child reports observing her father being angry to the paternal grandmother and her partner, Z’s apprehension of spending unsupervised time with her father is entirely understandable.
Having regard to those matters, I respectfully agree with, and adopt, the written submissions of counsel for the Independent Children’s Lawyer, which stated at paragraphs 82 and 83:
Supervision of time is required to protect Z from emotional harm and physical harm from the Father. The latter is based on submissions concerning the Father abusing Y. Obviously, the risk of physical harm is not the same, but it is the Father’s unpredictability that he may lose control. The Father and Mother do not enjoy a good relationship and any criticism of the Mother by the Father would be unsettling for Z. In addition, it has been a long time since the Father has seen Z and he himself acknowledges that there is a need for supervision in the first instance.
Supervision at a Contact Centre is not a long-term solution, but it is the only solution in this case given Ms Sedgwick and Ms B will not supervise. Ms C as a supervisor is an attractive alternative however the concerns raised are that she would not be in position to adequately deal with behaviour of the Father that is detrimental to Z.
In agreeing with and adopting that view, I have had regard to the oral evidence of Ms C, which is set out, most relevantly, at Transcript 20 April 2021, p.59 line 18 to p.60 line 33. Specifically, I have noted Ms C’s evidence that, in the event of the father engaging in inappropriate conduct in front of the child or W, she would remove them from his presence until he calmed down. Ms C was not challenged in respect to the sincerity of her intention in that respect.
Despite finding Ms C to be sincere in respect to her intentions of protecting the child from physical and/or emotional harm, I am not satisfied, with the greatest respect to her, that she would have the capacity to do so. In that respect, the family consultant stated that, in the event of the Court finding that the father perpetrated the acts of abuse upon Y, then the supervisor “needs to be somebody who can, really, certainly stop the contact if there’s any signs that Z’s safety or wellbeing could be at risk” (Transcript 22 April 2021, p.153 lines 10–12). Ms D’s opinion, in that respect, was illuminated in the following exchange with counsel for the Independent Children’s Lawyer;
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:] And would you ordinarily think that that should be someone such as a professional supervisor?
[MS D:] Yes.
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:] So if it was not a professional supervisor, what sort of characteristics of that supervisor would you be looking for to give you comfort that Z would be protected?
[MS D:] I think that they need to be somebody who physically and mentally has the strength to say to [the father] that contact would cease if – if he was behaving in a – in a way that was – that they thought was inappropriate for the – the child and unsafe for the child. And I think that the advantage of a professional service is that all – (1) if – if – if there’s any incidents – if – if it’s happening at a centre, then there’s lots of other people around who can come and immediately assist, and they’ve got policies and procedures in place to – to – to shut down the incident as soon as possible. If it – if it’s out in the public, then there’s, you know, a bit more risk entailed. But a professional supervisor to – it’s their – purely their job to protect this child’s safety and they’ve got only that in mind, and they don’t have any attachment to the person that they’re – the adult that they’re supervising with the child. So they have a bit more of a capacity to say, “No, this isn’t – this is my job to– to – to say that this isn’t appropriate behaviour and we can’t continue if things are like that.” With family members I think it can be – it can be a bit tricky because they’re – they might have an ongoing relationship with that person that they’re supervising – the adult that they’re supervising. So they might be more inclined to minimise behaviours, let things go. But some family members can be very strong and – and say, “No, this isn’t – isn’t happening.” But I think in the case of [the father’s] partner, Ms C, I – I – I would be concerned that she has an ongoing relationship with [the father]; it would be very difficult for her to raise with him if he wasn’t behaving appropriately and to stop the contact knowing that there could be some ongoing impact on their relationship.
In circumstances where I have found that the father has a propensity to lose his temper and to engage in aggressive and abusive conduct, including persons with whom he is in a close relationship, I am not satisfied that Ms C would be an appropriate supervisor, as there is an unacceptable risk that she would be the subject of such conduct on the part of the father. That, with respect to Ms C, makes her an inappropriate potential supervisor, including for reasons that there is an unacceptable risk that Z would be vicariously impacted by witnessing such conduct on the part of the father, directed to Ms C.
As acknowledged by the father, at paragraph 64 of his Affidavit, the paternal grandmother refuses to supervise the time that the child spends with the father. This significantly limits the potential options for the child to spend time with the father, in circumstances where the father states, in paragraph 68, that he does not agree with Z’s time with him being supervised by a contact centre.
In circumstances where I have determined that Ms C is not an appropriate supervisor, where the paternal grandmother refuses to supervise the child’s time with the father and, further, where the father refuses to accept supervision at a contact centre, the only available option, in my opinion, is for the child’s time with the father to be supervised by an agency that provides supervision services for children’s time with a parent in a public setting. Accordingly, I will make orders for the child’s time with the father to be supervised by such an appropriate supervision agency as agreed to by the parties, and, in the absence of agreement, by the father selecting an agency from a list of names to be provided to him by the mother.
Parental responsibility
During the course of the hearing, the mother, in response to questions from counsel for the father, indicated that, in the event of orders being made for the mother have sole parental responsibility, she would agree to orders requiring her to advise the father of any serious illness or medical condition that Z may suffer. The mother further agreed that she would notify the father about contact details for the child’s school, and that she would further agreed to an order that the father have authority to communicate and obtain information from the child school. The mother further agreed that she would notify the school of her consent for the father to obtain that information. The mother further agreed that she would be prepared to contact the father in writing, and give him 28 days to consider his position, in respect to “a big decision to be made about Z, about a medical issue or school issue” (Transcript 21 April 2021, p.16 lines 10–13).
In the context of the history of family violence which I have found to have been perpetrated upon the mother by the father, I am not satisfied that it is in the best interests of the child to require the mother to consult with the father prior to making decisions about major long-term issues impacting upon the child, including, most relevantly, the child’s health and education. I note, however, that, pursuant to proposed orders 6, 7 and 10 of the mother’s case outline document filed 15 April 2021, she would generally keep the father informed about major long-term issues relating to the child’s health and education, and also permit the father to contact the child school to seek information concerning her education.
Overseas travel
During the course of this matter, the father acknowledged that, contrary to his initial understanding as attested in his Affidavit, the mother’s home country is in fact a party to the Hague Convention and, on that basis, indicated that he would not be “resistant” to the mother engaging in overseas travel with the child (see Transcript 22 April 2021, p.157 line 46 to p.158 line 4). Having regard to that concession on the part of the father, I accept that it is appropriate to make the orders sought by the mother, in respect to overseas travel, which I note require the mother to provide details of their itinerary, a telephone number to contact the child while she is overseas, together with details of travel insurance for the child.
As previously noted, having regard to the child’s East Asian heritage, I agree that the order proposed by the mother is appropriate and will make orders in those terms.
Conclusion
In this matter, in the context where the child wishes to have a relationship with her father and, while only seeing the father on an irregular basis since December 2014, wishes to spend time with the father, subject to that time being supervised, I am satisfied that it is appropriate for orders to be made to facilitate that occurring. Relevantly, I have found that it would be contrary to the child’s best interests for the child to spend unsupervised time with the father, as a result of the risks to which I have referred in this decision.
In determining that the frequency of the time that the child should spend with the father should be on six (6) occasions per year, I have had regard to the practical difficulties of the father travelling from Queensland to Sydney. I have also had regard to the fact that orders providing for the child to spend a greater amount of time with the father would increase the potential for the father to engage in angry, aggressive and abusive behaviour, proportionately to that increase in time. Accordingly, in those circumstances, I have accepted the recommendation of the family consultant, as advanced by the Independent Children’s Lawyer, that the child should spend time with the father on six (6) occasions per year. In the event that the parties cannot agree on when that time is to occur, then it should occur on the last Saturday of every second month in accordance with the orders I make in this matter.
In circumstances where the father objects to the child spending time with him at a supervised contact centre the orders, the orders I have made provide for the child to spend time with the father supervised by a contact service that is prepared to supervise Z’s time with the father in a public location.
In considering who should meet the cost of supervision, in circumstances where the mother is receiving minimal child support from the father, and she has, and continues to be, solely responsible for providing for the child’s physical needs, in circumstances where she is in receipt of a modest income in her occupation as a nurse, the orders will provide for the father to meet the cost of that supervision.
As the child will be living with the mother and spending limited time with the father, it is appropriate that the mother have sole parental responsibility. The evidence satisfies me that the mother has, with the assistance of the parental grandmother, provided a high level of care for the child, as well as attended to her physical, emotional and educational needs. For reasons which I have discussed, I will make orders proposed by the mother which require her to keep the father informed about major long-term issues impacting upon the child, rather than requiring the mother to firstly consult with the father before making those decisions.
More generally, the orders proposed by the mother for the parties to communicate by email is appropriate, in the context of the mother having been the subject of family violence perpetrated by the father. It appeared to be agreed that each party would not make critical or derogatory remarks about the other.
For reasons which I have earlier explained, I am satisfied that the mothers’ proposed orders, permitting her to travel overseas with the child, are appropriate.
Accordingly, for all these reasons, I make the orders as set out at the commencement of my reasons for judgment.
Potential criminal complaint
During the course of these proceedings, I expressed my personal concern, and my concern as a judicial officer of the Commonwealth, that no one has been held accountable for the serious injuries sustained by Y, over an extended period of time, during the first six months of her life. Those injuries occurred at a time when she was, as a result of her infancy, immobile and totally dependent upon two other human, beings her parents, the parties in these proceedings. While I have found, on the balance of probability in accordance with s 140(2) of the Evidence Act, that those injuries were inflicted by the father, it has not been the role of this Court to determine whether the father’s conduct constituted the degree of recklessness required for the statutory offence of inflicting grievous bodily harm (see Aubrey v The Queen (2017) 260 CLR 305 at [43]–[47]).
In that context, I invited submissions from the parties as to whether, in the event of my finding that Y’s injuries were inflicted by the father, I should refer my decision to the New South Wales Commissioner of Police. On reflection, I consider that my actions would be a futility, unless and until the mother is prepared to disclose the totality of the knowledge she has as to how Y sustained her injuries. Despite the lapse of time since those injuries were inflicted upon Y, the mother has, however, every right and, indeed, in my view, responsibility to provide the information she has regarding those matters to the Commissioner of Police. The provision of this judgment in that context would not, in my view, constitute publication contrary to s 121 of the Act.
Costs
During the course of the hearing, counsel for the Independent Children’s Lawyer advised the Court that the Independent Children’s Lawyer would seek costs in respect to acting in these proceedings.
Accordingly, the orders will require the Independent Children’s Lawyer to, within seven days, notify the parties of the costs which the Independent Children’s Lawyer is seeking from each of the parties, and that, in the event of either or both of the parties objecting to paying those costs, they file and serve written submissions setting out the reasons for their opposition, within a further 14 days.
I certify that the preceding two hundred and twenty-eight (228) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 21 September 2021
Attachment A
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