A and A

FEDERAL MAGISTRATES COURT OF AUSTRALIA

A & A

[2001] FMCA fam 29

FAMILY LAW – Children – Contact – Family Violence – Unacceptable risk of harm – Briginshaw test applied – Order that there be no contact.

Applicant:

M A

Respondent:

R A

File No:

ZP1361 of 2000

Delivered on:

22 March 2001

Delivered at:

Parramatta

Hearing Date:

23, 24 & 25 January 2001 and
27 February 2001

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr McPherson

Solicitors for the Applicant:

Sayan & Associates

Counsel for the Respondent:

Mr Hall

Solicitors for the Respondent:

Sukkar & Associates

ORDERS

That the Applicant Mother have sole responsibility for the long term care, welfare and development of S A born 26 April 1989, K A born 7 May 1990, J A born 30 April 1992, L A born 19 July 1998 and C A born
27 November 1999 (the children).
That the children live with the Applicant Mother.
That the Respondent Father be and is hereby restrained from removing, causing or allowing the removal of the children S A born 26 April 1989, K A born 7 May 1990, J A born 30 April 1992, L A born 19 July 1998 and C A born 27 November 1999 from the Commonwealth of Australia.
That the Australian Federal Police place the names of the said children on the airport watch list, also known as the P.A.S.S. list, at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s’ names on the watch list until further order of the court.
That the Respondent Father be and is hereby restrained from stalking, harassing or otherwise interfering with the Applicant Mother and the children.
That the Applicant Mother shall photocopy all school reports/awards and certificates issued in respect of the children of the marriage and shall send these documents to the respondent husband at his mother’s address. The Applicant Mother is at liberty to delete all identifying features from such reports prior to delivery to the Respondent Father.
That at the expiration of one calendar month all exhibits be returned unless an appeal is lodged.
That all documents produced on subpoena be collected by the solicitor who issued the subpoena and returned to the owner thereof forthwith.
That all outstanding applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

ZP1361 of 2000

M A

Applicant

And

R A

Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings comprise an application for parenting orders and injunctions concerning the children of the marriage. The children are S A born 26 April 1989, K A born 7 May 1990, J A born 30 April 1992, L A born 19 July 98 and C A born 27 November 1999.

The applications

M A filed an application for Final Orders on 14 September 2000. Her application was filed in the Family Court at Parramatta. That same day the proceedings were transferred to the Federal Magistrates Court.
On 23 January 2001, the Mother filed an amended application, which application contained the orders sought by her in this hearing. The orders sought by the Mother are as follows:
(1)That the applicant Mother have sole long-term responsibility for the care, welfare and development of the children and sole residence of the children of the marriage.
(2)That the respondent husband have no contact with the children of the marriage.
(3)That the respondent husband is permanently restrained from assaulting, harassing, threatening or otherwise interfering with the applicant wife and the children of the marriage upon the expiration of the apprehended Violence Order made by the S Local Court on 14 July 1999 (“The AVO Orders”).
(4)The respondent husband is not to stalk the applicant wife or the children of the marriage upon the expiration of the AVO Orders.
(5)The respondent husband is restrained from removing the children of the marriage from the jurisdiction of this honourable court.
(6)The respondent husband is restrained from making application to any of the Consulates General of Lebanon in any State of Australia and the Embassy of Lebanon in the Australian Capital Territory for Lebanese passports for the children of the marriage.
(7)The respondent husband is restrained from making any application to the Department of Foreign Affairs for Australian passports for the children of the marriage.
(8)The respondent husband is restrained from filing an application in the Family Court of Australia or a local court having jurisdiction under the Family Law Act seeking a Commonwealth Information Order or a Location Order to locate the applicant wife and/or the children of the marriage.
(9)The applicant wife shall photocopy all school reports/ awards/certificates issued to her in respect of the children of the marriage and shall be at liberty to delete all identifying features from such reports and shall thereafter, within 21 days of receipt of same, forward such copies to the respondent husband at his last known address.
(10)The respondent husband shall pay the applicant wife’s professional fees and disbursements incurred in these proceedings.
The Father did not file a response to the Mother’s application nor her amended application. The orders sought by him are contained in a document entitled “Short Minutes of Order”, which document was provided during the course of the first day of the Hearing. The document became Exhibit A in the proceedings. The orders sought by R A are as follows:
(1)That he be granted contact with the children.
(2)That for the purposes of exercising such contact with the children, that Mrs A deliver the children to S Railway Station every alternate weekend at or before 10.00 am on Saturday morning.
(3)That Mr A’s sister, Z A, meet with Mrs A at S Railway Station at 10.00 am on the alternate Saturday morning for the purposes of collecting the children.
(4)That Z deliver the children to S Railway Station at 4.30 pm on the alternate Sunday afternoon, for the purposes of delivering the children back to Mrs A.
(5)That Mrs A collect the children from S Railway Station at 4.30 pm on the alternate Sunday afternoon for the purposes of collecting the children after a contact visit.
(6)That having collected the children from the S Railway Station, Z will deliver the children to the home of Mrs A senior at 34/3 R Avenue, R in the State of NSW.
(7)That at all material times, Mrs A senior will supervise Mr A’s contact with the children over the period of a contact visit, excepting where the children spend the night at the home of Z A.
(8)That the children will spend Saturday night at the home of Mrs A senior, or at the home of Z A, situated at 3/34 R Street, R in the State of NSW.
(9)Holidays – such orders as the court directs.
(10)Service of school reports, etc. – such orders as the court directs.

Short history

R A was born on 3 December 1968 in Lebanon. He is 32 years old. M A was born on 1 March 1969 and is also 32 years old. The Father migrated to Australia in 1984 with his family.
The parties married on 18 April 1989. The children of the marriage are S A born 26 April 1989 (nearly 12 years old), K A born 7 May 1990 (nearly 11 years old), J A born 30 April 1992 (nearly 10 years old), L A born 19 July 1998 (nearly 3 years old) and C A born 27 November 1999 (1 year old).
On 24 April 1999, the parties finally separated. They have not divorced.

Current orders

On 14 July 1999, at the Local Court at S, an Apprehended Violence Order was made in the Mother’s favour against the Respondent. The Order comprises Annexure A to the Mother’s affidavit filed 17 January 2001. The Order is a two-year order and imposes the following restrictions upon the Respondent:
(1)That he must not engage in conduct that intimidates the protected person(s) or any other person having a domestic relationship with the protected person(s).
(2)The Respondent must not stalk the protected person(s).
(3)The Respondent must not assault, molest, harass, threaten or otherwise interfere with the protected person(s).
(4)The Respondent must not reside at the premises at which the protected person(s) may from time to time reside, or other specified premises.
(5)The Respondent must not enter the premises at which the protected person(s) may from time to time reside or work, or other specified premises.
(6)The Respondent must not approach, contact or telephone the protected person(s), except for the purpose of arranging or exercising access to children as agreed in writing or as otherwise authorised by an Order, or a registered parenting plan under the Family Law Act 1975.
(7)The Respondent must not contact the protected person(s) by any means (including through a third person) except through the Respondent’s legal representative.
The protected person is M A and the defendant is the Respondent.
On 3 October 2000, Consent Orders were made pending further order in the Federal Magistrates Court. Both parties were legally represented when these orders were entered.
The Orders provided:
(1)Pending further order, the Applicant Mother shall have short-term responsibility for the care, welfare and development of the children of the marriage and sole residence of the children of the marriage.
(2)Pending further order, the husband shall have no contact with the children of the marriage.

The evidence

The evidence in support of the Applicant Mother’s case is contained in:
·Her affidavit sworn 12 January 2001 and her oral testimony. During her oral evidence the Mother asked the Court to view scars she says resulted from injuries caused by the Father. The observation took place in the courtroom in the presence of Counsel for both parties and court staff only. It was agreed that the scarring comprised a 2 centimetre scar above her left eye, a one and a bit centimetre scar above her right eye and on her right forearm scarring in a circular shape halfway across the arm;
·Affidavit of Dr A S, a psychiatrist, sworn 29 December 2000. Dr S was not required for cross-examination and I accept his evidence.
The evidence comprising the Respondent Father’s case is contained in:
·His affidavit filed 22 January 2001 and his oral testimony. Exhibit D rectifies the record and replaces Annexure A to the Father’s affidavit relied on in the proceedings.
The proceedings concluded part-heard at midday on 25 January 2001. The Mother suffered an attack whilst the Father was being cross-examined and was taken by ambulance to hospital. On that day, directions were made for the filing of further affidavits by the Father. He was directed to file and serve any further affidavits by 8 February 2001. Pursuant to that direction the Father filed the following Affidavits:
Affidavit of Z A filed 31 January 2001 and her oral testimony.
·Affidavit of M A filed 31 January 2001 and her oral testimony.
15 A Family Report dated 9 January 2001 was prepared by Court Counsellor Jeanette Buckingham. The report became Exhibit B in the proceedings. The Court Counsellor was not required for cross-examination and I accept the evidence given by the Court Counsellor in her report. A number of documents were tendered and became exhibits in the proceedings.

Issues before the court

The relevant issues appear to be:
b)The nature and extent of family violence;
c)The effect on the Mother of establishing contact, including supervised contact between the children and the Father;
d)The effect on the children of establishing contact, including supervised contact with the Father;
e)The effect on the Father of refusing him contact with the children;
f)The effect on the children of refusing them contact with the Father.

The mother’s current circumstances

The Mother lives at an address disclosed to the court with the children. The address is contained in an envelope placed with the court papers. The address is subject to an order to the effect that the envelope may not be opened other than pursuant to an order by a Federal Magistrate or Judge. The home comprises a four bedroom, two bathroom townhouse that is rented from the Department of Housing. The home is in metropolitan Sydney. The three elder girls attend the local public school where they have just completed Years 6, 5 and 3 respectively. S has now commenced high school. Although J could benefit from concentrating a little on her mathematics, Exhibit C discloses that all three children are achieving well at school. That exhibit comprises school reports, certificates and awards received by the children. They participate in Girls Brigade and in addition to successful academic achievement, they are also achieving well in their socialisation and sports activities.
Although she had converted to Islam, the Mother has abandoned the Islam faith. She is rearing the children within the Anglo-Australian culture with little knowledge of their Lebanese culture. S, K and J have each received counselling since separation. This counselling has been provided by Centacare. Each girl has participated in individual counselling that continued for about 8 weeks on a fortnightly basis. They also participated in group therapy, which therapy concerned children who have been exposed to domestic violence.
In addition to the support from her general practitioner, Mrs A has consulted Dr S. Dr S has provided a medico-legal report but does not provide continuing therapy to the Mother. He suggests the possibility that supportive counselling may assist the Mother.
The Mother is not in the paid workforce. She supports the children on payments from CentreLink, being a parenting payment and family allowance. She does not receive child support. Her care of the children is supplemented by help from her mother and she has a good relationship with her sibling and extended family.
The Mother has not re-partnered.

The mother’s proposals

The Mother proposes orders that will in effect terminate the children’s relationship with their Father. His life in relation to the children will be limited to receiving copies of documents issued by their schools, edited to ensure that the documents cannot be used to locate the Mother nor the children.

Father’s current circumstances

The Father lives with his mother at 34/3 R Avenue, R. This is a suburb in western metropolitan Sydney. The home comprises a two-bedroom villa which is rented from the Department of Housing. The Father has lived there since the parties’ final separation in April 1999. The Father was last employed as a kitchen-hand at the Q Jet Base. He suffered an injury while cooking and has not worked since 1993. C was born after the final separation. She have never met her Father. Other than for the purposes of the Family Report he has had no meaningful contact with the children since separation in April 1999. The Father says he has been looking for work since 1993 but has been unsuccessful. He did not suggest that he has any meaningful prospects of employment in the future.
The Father has 4 brothers and 3 sisters. When his family migrated to Australia, the family migrated together. The family is closeknit, although Mr A senior has remarried and lives in W.

The father’s proposals

The Father seeks that he have contact with the children. He proposes to exercise this contact in circumstances that will ensure that he does not come in contact with the Mother. His sister Z will conduct contact changeovers and contact will be supervised by either Z or his mother. Thus the children would live with their Mother and have alternate weekend contact with the Father and such school holiday contact as the court may order. The proposal for supervised contact was made during the course of proceedings. Because the Mother opposed supervised contact and rejected the proposed supervisors as suitable supervisors, I required that any proposed supervisor swear an affidavit and attend the proceedings for cross-examination. As a consequence of these directions, Z and M A swore affidavits, and confirmed their preparedness to supervise contact.

Relevant facts

The Mother and Father met in 1986. The Father was about 18 years old and the Mother 17.5 years old. The Father had completed

Year 9 secondary schooling in Australia and had been present in Australia for about 2 years. After he finished school, he commenced employment at the Intercontinental Hotel working as a steward. Approximately one year later he moved to a nightshift position with the hotel and was working there when the parties met.
The Mother’s early life history is a sad one. By the time she was

15 years old she was abusing alcohol and suffering bouts of alcohol-induced amnesia and blackouts. Her father was an alcoholic who abused her mother physically and emotionally. The Mother described hearing her father’s abuse of her mother saying: “I used to listen to it. It was directed to my mother, not me.” By the time she met the Father, the mother had achieved sobriety. The emotional instability she felt as a consequence of her upbringing, she believed had resolved. When they met, the Mother was working in a clerical position.
One week prior to their elder daughter’s birth, the parties married in a mosque at Arncliffe. The Mother converted to Islam at the time of her marriage. Her family is Roman Catholic and that was the religion she was raised in. Upon their marriage, the parties moved into the Father’s parent’s home and then lived with them in R. Thereafter the Mother lost contact with her family because she says the Father prohibited it. He agrees that contact with the Mother‘s family ended but says this was the Mother’s decision. The Mother alleges that approximately 4 weeks after their marriage, the parties separated briefly for a period she cannot now recall. They separated because the Mother alleges she was being hit by the Father “a couple of times a week continuously”. He says that this and other separations were instigated by the Mother to gain benefits for the family, including housing.
At this first separation, the Mother obtained refuge accommodation at M, where she and S remained until she obtained rental accommodation at H. By this time, the Mother had given birth to the parties’ second daughter K. The Mother alleges that the Father was living with his brother and sister and on occasion he stayed overnight at her home. She agrees they were intimate and attempting to resume their marriage. The Father says that when the Mother moved out of the refuge, he moved with her into her rented home at H. The home at H was rented for approximately 8 months.
The Mother then obtained a Department of Housing apartment at B-L-S. The Father alleges that he lived continuously with the Mother at B-L-S. She denies this. She alleges that the Father lived with his family and stayed at B-L-S with her and their two elder children regularly. She says that the longest time he was continuously at the B-L-S home was a period of one week.
The Mother said she was hit by the Father with a tissue box while they were living at B-L-S. The box had a decorated hard cover and she says she had blood running down her face as a result of a cut caused when the box hit her. The Mother did not go to a doctor but did attend a counsellor. The counsellor obtained a place for her and the children at the B Women’s Accommodation. After 2 months in the B Women’s Accommodation, she was moved to a women’s refuge at M. The children were with her. The Mother obtained another apartment with the Department of Housing, at M. She and the children moved there. The Father alleges he also lived at M with the Mother and children, which allegation is denied by the Mother.
The Mother organised a home swap with another Department of Housing tenant. Thus she left the M premises and obtained a Department of Housing rental accommodation at K Road, R. This was in 1991. The Mother maintained the K Road tenancy for about 2 years. The Father says he was living with her and the children. The Mother alleges that the Father was living with his sister Z nearby.

In about 1992, the Father received a workers compensation payment for a back injury he had sustained in 1986. He alleges that the money was given to the Mother and she used it to purchase a car. This is denied by the Mother. She agrees that she did purchase a car but says that this was from money received from her own accident claim. Nothing turns on this issue.
In 1993, while working as a kitchen-hand at the Q jet base, the Father burnt his hand and stopped work. He has not been in paid employment since.
Again, the Mother organised a home exchange with another Department of Housing tenant and moved into a 3-bedroom apartment at R Avenue, R. The Mother was expecting J at the time she moved to R Avenue. She was suffering from a bad back and the Father moved the furniture into the R Avenue premises for her and the children. The Mother and children remained living at the R Avenue address until the parties’ final separation in April 1999.
After J’s birth and prior to L’s birth, the Mother alleges that the parties separated and reconciled repeatedly. She can’t now recall the specific details. The Father says they lived together continually. Both agree that after L’s birth, they lived together until January 1999.
On 25 January 1999 the Mother alleges that she was seriously assaulted by the Father.
On 26 January 1999 the Father was charged with one count of assault occasioning actual bodily harm and also one count of common assault. The later appears to be a back up charge to the former. The Father was refused police bail. An Apprehended Violence Order was taken out by Police. At least the charge matters came before S Local Court on 27 January 1999. The Father was granted conditional bail and the matter listed for defended hearing on 24 May 1999.
The Mother and children were accommodated in a hotel overnight until refuge accommodation could be made available. Whilst at the refuge, the Mother was seen by Dr M H. Her report is contained in the DOCS file exhibit. Dr H first saw the Mother on 28 January 1999. In her report dated 8 February 1999, Dr H says: “I saw M A on
28 January 1999 when she was staying in C House. She stated she was assaulted by her husband on 26 January 1999. On examination she had bruising to her right forehead and bruising around her right eye. She had bruising around her right wrist. She had bruising on her left arm. She was distressed by her predicament.” Dr H saw the Mother again on 2 February 1999 and her report discloses that the Mother was still experiencing pain in her right wrist. At the next consultation on 3 February 1999, Dr H reports that the Mother was very stressed. Earlier that day, the Mother had attended court in relation to the Father; most likely the assault charges and an apprehended violence order. Dr H records that the Mother expressed concern about further violence.
On 12 February 1999, District Officers Matthew Dredge and Yennga Ngo from the Department of Community Services attended at the parties’ home. The officers spoke to the Mother and Father jointly. After explaining their role, District Officer Dredge raised the allegations about the physical assault on 25 January 1999 by the Father of the Mother. The District Officer reports: “R stated that ‘I don’t have a problem. She has a problem. I don’t need help. She needs help. If you need to talk, talk to her. I’ve got nothing to do with it’.” The Father stood up and walked away from the table, standing a few feet distant. The District Officer requested to speak to the Mother alone. The Father refused and said “She is my wife. If you want to talk, you can talk in front of me.” During the officer’s discussion about the seriousness of domestic violence, the Father said “nothing had happened” and “what happened was not serious.” “She did something stupid to me” The Mother told the District Officers that she could not remember what had occurred and the officers then left the home.
After they had reconciled, the Mother refused to give evidence and the Apprehended Violence application was dismissed. The Mother’s evidence is that the Father said to her: “If you want this marriage to continue, then you cannot have the AVO because otherwise I cannot come near you”. The Father and Mother went to K Court and the Mother says the Father refused to let her talk to the domestic violence workers at the courthouse. Thus the Interim Apprehended Violence Order was discharged.
On 24 March 1999, the Father took the Mother to the emergency department at C Hospital. The clinical notes relating to the admission became Exhibit D2. The notes disclose that the Mother was hyperventilating, fainting, shaking, vomiting and in a distressed state. The Mother gave evidence that the Father remained with her throughout the admission. She denies giving any history to the registered nurse. Her evidence on this issue was not challenged and I accept it.
Prior to this admission, the Mother had attended Dr O A. Dr A is a consultant rehabilitation psychiatrist. The Mother was referred to Dr A by Dr A. Dr A is apparently not related to this family. The Mother agrees that each time she attended Dr A, he gave her an injection. The Mother agrees that she was nervous, depressed and shaking. The Father remained with the Mother throughout the entirety of her attendances upon Dr A and she says they spoke to each other in Arabic, a language in which she has some competency. The Mother does not recall participating to any degree in the consultation. On an earlier occasion, the Father took the Mother, when she was suffering a bout of depression and shaking to their family doctor, Dr B R. The Mother also received an injection on this occasion. The injections were sedatives.
Between 10 and 15 April 1999, the Mother alleged further assault. The assault followed a visit to the home by community health or DOCS workers. Her evidence is as follows. “When they left he began to hit me about the head and body with his fists. He also threw me around the lounge room of the flat. I can’t recall what he said as he did it. At least two of the hits around each of my eyes caused cuts, which have left visible scarring. At the time the cuts bled heavily and the blood was running down my face while he continued to assault me. The actual assault continued on and off throughout the day in that R would stop hitting me for a while and then start all over again. I felt that I needed to get medical treatment and have my facial wounds stitched. I was possibly 4-6 weeks pregnant with C at this time, I was worried that I might lose her because I had severe back pain.”
Eventually her left eye closed completely, she had cuts to her mouth and bruising over her face and body. She did not go to a doctor. She says the Father refused to take her to a doctor expressing fear that the doctor might report him to the police. The following morning, at about

5 o’clock the Father woke the Mother, telling her to get the children up and for them all to get dressed and leave with him for his brother Y’s home. He said to her “put a scarf on to hide your face and sunglasses to hide your eyes”. The Mother believes they went at this hour because it was still dark and there was less risk of discovery by someone passing by. Whilst at Y’s home she was hit again on a number of occasions. She said “When this happened Y or his wife L moved between us to protect me.”
The Father’s family held a meeting during which the Mother says they “sat at the table talking in Arabic about what to do about me”. Later Y said to her ”It’s all your fault, he did that because you had those people in your home.” Over the next 2 weeks the Mother and children were moved amongst the Father’s family members, including Abdul and Z. Z spoke to the Father and said “Why did you do this, why did you go so far?” Abdul obtained creams from the chemist for her bruising. The family then returned to their home. By this time the Mother’s injuries had subsided.
These events coincided with the last week of school term. When the children returned to school after Easter the principal called S into his office. He asked her where the children had been and S told her mother “I was scared to tell the principal what happened because Dad said not to tell anyone how he hit you. I started to cry and shrugged my shoulders.” The DOCS file discloses that after the attendance of DO Dredge the officers had been trying to contact the Mother and had liased with the principal trying to talk to her alone. The children were then withdrawn from R Public School and transferred to H R School. H R School is a further 15 minutes walk from the children’s home.
The children attended H R School for one day, 27 April 1999. During the day the parties argued about the possible outcome of the Father’s request to the Department of Housing to change the Mother’s tenancy into a joint leasing. Each asserts it was the other parent’s idea. The Mother encouraged the Father to collect the children from school and while he did so, she fled to the R office of the Department of Housing. At her request the Police were called.
That same day the Father was charged with two further counts of assault occasioning actual bodily harm. The charge sheet alleged: “That R A between 10 day of 1999 and 15 day of April 1999 at R in the State of New South Wales did assault M A thereby occasioning actual bodily harm to her.” He was taken into custody at his home, removed to H and then S Police Station’s and after processing was refused bail. The four elder children were taken by Police to R Police Station where they joined the Mother and C. That day the Police obtained an Apprehended Violence Telephone Interim Order for the protection of the Mother. The Mother and children stayed overnight in a motel and the next day again went into refuge accommodation. Police notified the children to the Department of Community Services as children at risk. The Mother and children lived in refuge or protected accommodation for the next 6 months.
The following day, 28 April 1999, the charge matters and the Apprehended Violence proceedings came before a Magistrate at

S Local Court. The Father was granted conditional bail and the interim AVO was continued. The charge matters were listed for hearing on 25 May 1999 with the earlier charge matters.
On 28 April 1999 the 4 elder children were sighted by child protection workers from the Department of Community Services. Formal interviews were conducted with S, K and J at their new school on

12 May 1999. There is no indication that the Mother was present during the DOCS interviews with the children. Each child was interviewed separately.
On 3 May 1999 the children resumed their schooling at a new school.
After a defended hearing, during which the Mother, Constable Romanovski, the Father and his brother Y gave evidence, the Father was convicted on 2 counts of assault occasioning actual bodily harm of the Mother. The conviction was entered on 14 July 1999. He was placed on a two-year good behaviour bond in the amount of $1,000 upon condition that he be of good behaviour and appear for sentence if called upon for non-compliance with the bond.
In about September 1999 the parties arranged to meet at George Street in Sydney CBD. The Mother was about 7 months into her pregnancy with C. The Father says that the Mother contacted him via his cousin Michael, while the Mother alleges that the Father rang her on her mobile phone. Taking L with her, the Mother travelled into Sydney and met the Father. They talked about many matters, meeting at a restaurant. The Father says that the Mother apologised for having him charged and that they had a pleasant outing. This is denied by the Mother. She wanted to confront the Father about his treatment of her and the children. She says the meeting went quite well and they arranged to meet again two weeks later. They agree that there were two meetings. After the second meeting the Mother says the Father followed her on the train. He says she invited him to accompany her and that she cuddled and hugged him. She denied this and says he cuddled and kissed her. They have not seen each other since, other than for the purpose of participation in these proceedings.
The Father has never met C and has not seen his elder daughters since separation other than during the preparation of the Family Report.
In August 2000 the parties attended a Legal Aid conference organised at the Father’s request. The conference was conducted by telephone.

Relevant law

Residence, contact and specific issue orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in Section 68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act (1997) FLC 92-755.
An important issue in these proceedings is whether contact or supervised contact by the Father will pose an unacceptable risk to the children of physical, psychological and/or emotional harm. The legal principles to be applied in the case involving allegations of sexual abuse are laid down by the High Court in M v M (1988) 166 CLR 69. These principles are applicable to all allegations of risk of harm. See A v A (1998) FLC 92-800. It is not the role of the court to determine the truth of allegations in the way that a criminal court must do. The High Court discouraged such findings saying that there are “strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.” ibid at 77.
Before it can make a positive finding that a parent has abused a child, the court needs to be satisfied according to the civil standard of proof (see s140 of the Evidence Act 1994 (Cth). The finding is made by reference to the test identified in Briginshaw v Briginshaw (1938)

60 CLR 336. In this case Dixon J said: “The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences of flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proof, indefinite testimony, or indirect inferences.” Ibid at 362.
If the court determines that it cannot or should not make a positive finding that there has been abuse, the court must determine whether in all the circumstances there is an unacceptable risk. The manner in which the court conducts an assessment of the risk of future harm is set out in A v A (1998) FLC 92-800. In those proceedings, the Full Court of the Family Court was assessing the risk of future physical harm to children. The approach there described is applicable to all allegations of future harm. The Full Court said: “The task which His Honour was required to perform was to determine whether the evidence was such as to establish that there would be an unacceptable risk to the children if they were to have contact or supervised contact with the husband. In reaching a conclusion on that issue, it is necessary for the court to form some opinion about the connection between the assault and the husband. It would not be necessary in this exercise to reach a positive conclusion that he was the assailant. On the other hand, if the court reached a comfortable conclusion that the husband was not the assailant, that would be likely to have a profound effect upon the approach to the question of contact. In cases of this sort, often it is not possible for the court to form a positive view at one end or the other end of this scale of dissuasion and it is not necessary for it to do so.”
The findings made in the assessment of risk address part of the court’s responsibility. Whilst the resolution of the risk issue may be the central issue in proceedings, the court’s role is broader in that it must determine the best interest of the child having regard to the relevant

s68F (2) factors in the context of the matters contained in s60B. In M v M the High Court said: “The resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide, cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse and the balance of probabilities.” Ibid at 76.
If the Court reaches the conclusion that there is no unacceptable risk, the Court must consider the separate issue of the parent’s belief in the occurrence of the events. This is another part of the court’s obligation. In A v A the process is described thus. “The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether it will have a significant impact on the party’s capacity as the resident parent and so impinge on the interests of the children. The Court then needs to take steps proportionate to that circumstance.” It is not a necessary component that the belief “should be genuinely and objectively based”. A v A ibid.
The nature of supervision, and the responsibility of supervisors when a court has found that there is an unacceptable risk of future harm is dealt with by the Full Court of the Family Court in B v B (1993) FLC 92-357 at 79, 780 and 79, 781. “Family and friends are not neutral, but will usually, as is the case here, have an opinion as to whether any harm has occurred or whether any risk exists. They may therefore believe that close monitoring of the children is unnecessary. In a practical sense, they cannot always be present and may fail to respond protectively to complaints of abuse or distress by the children. Supervisors must be available to the children for safety and support and be prepared to intervene on the children’s behalf if an issue of protection arises during the visit. It is, in our opinion, unrealistic to expect a supervisor to undertake those responsibilities on a regular weekly or fortnightly basis for an indefinite period.”…..“For the above reasons, it is in most cases undesirable for friends or family of the access parent to supervise children during access periods in circumstances where either abuse has been found to have occurred or there is an unacceptable risk of abuse occurring.”

Family violence is a significant issue in these proceedings. In addition to it’s inclusion as a relevant factor in section 68F(2)(g)(h) and (j), section 68K emphasises that consistently with the child’s best interests being the paramount consideration, a parenting order should be consistent with a family violence order. The parenting order must not expose a person to an unacceptable risk of family violence and can include protective safeguards. A contact order that is inconsistent with a family violence order will prevail over the family violence order. Section 68S. Section 68R contains provisions about making an order for contact that is inconsistent with a family violence order.
The manner in which the Court must examine family violence in proceedings for a parenting order is identified in JG and BG (1994)

FLC 92-515 and also Patsalou and Patsalou (1995) FLC 92-580.Evidence of family violence is relevant insofar as it assists the Court in determining what orders will best promote the interests of the children. The Court will have regard to the fact that family violence may be directly or indirectly relevant to children’s welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children. So far as the evidence allows, the Court will attempt to understand the nature of any violence that has occurred and its potential effects on children. Exposure by a child to violent family relationships can be harmful to a child’s emotional development. Even if the issue is not addressed in submissions, the Court has a responsibility to consider the effect on a child of a violent parental role model. Blanch v Blanch and Crawford

Section 68F(2) determining the best interests of the child

The children’s wishes

During the 12 May 1999 Department of Community Services interview, J, then aged 7 years old, is reported thus: “at time of interview, J did not want to talk to R, did not know about seeing him and anticipated that if M goes back to R they will have a fight.” Both K and J indicated that prior to the final separation their father had said things to them like “who are you going to pick? Your mum does the wrong thing”. J told the Department of Community Services Officers that “K felt angry and banged her head on the wall, then fell down the chair at the Police Station and stopped when M came back.” S reported that when the Police arrived to take the Father away, K was crying, kicking and wanted to stay with her father. S and J both said they wanted to stay with their mother. When the Mother and children caught a train on their way to the refuge after the April 1999 separation, K was distressed and wanted to get off the train. They pulled her back inside the train. The Mother confirmed that K had been very distressed by the separation from her father in April 1999. K said “I want daddy. Why are you doing this to daddy?”
As part of their investigation, the Department of Community Services Officers made contact with the children’s school. S and K had settled well into class and were reported as very well behaved. S was the top student in her class.
In her affidavit evidence, the Mother deposes conversations with the elder children in which they expressed their wishes concerning contact with their father. I accept that the children have regularly said to her “We are scared of Dad. We saw him hit you beat you so much and it made us so frightened what would happen to you. He hurt us…. We are frightened of what might happen to us if he sees us. We feel safe the way we are now.”
Similar attitudes were identified by Court Counsellor Buckingham. S was aged 11 years and 8 months at the time of her interview. Court Counsellor Buckingham reports “S expressed a strong reluctance to resume contact with Mr A, saying that she did not want to see him and that she did not like him. She appeared fearful of him and other paternal relatives. Her expressed views and feelings appeared congruent with effect and there was little doubt that the views she presented were genuine. She appeared anxious about the observation with her father later that day and asked questions about how long it would be for. She said that she “felt a little scared of this”. Her views about her father were based on her observed history of violence by her father towards her, towards her mother and the effect that this had on her mother, herself, and her sisters. She reported that occasionally her father when angry with her would “just smack” her. S’s views about her father were balanced by positive recollections of happy times. During the interview she said she loved her father “because he is my dad”. She did not want to include him in her nominated family grouping and said that she enjoyed living without her father “because he is not hitting mum any more”. She said “the house use to be sad with dad and now it is always happy””.
Court Counsellor Buckingham explored S’s feelings should ordered contact occur. S was cautious saying “it would depend on how often”. She also said “she would feel frightened about seeing him particularly if there was no supervision. She indicated that she would be to scared to protest any decision made by the court.”
At interview, K was 10 years and 7 months. Court Counsellor Buckingham reports on her exploration of K’s wishes as follows “K listed her family as her maternal relatives and her sisters. She was quiet when asked if anyone else was in her family, then added that her father use to be in her family but they had not seen him for a while. She added that it “was better without her father being around “because there are no more arguments or fights” ... K’s view of her father appeared valid with some positive descriptions. She said that she “liked [Mr A] as a dad, but I don’t love him [for] what he does to my mum”. As S had so to K was able to recall good times with her father. She was curious about seeing him during the observation “but she was afraid that during the observation he would question them and he might get angry if she did not answer him”. K was worried about her father feeling sad but added “that this would make him understand how her mother felt when he hit her”.
J was aged 8 years and 8 months at interview. The court counsellor describes her as “articulate, bright little girl, within her developmental norm and who engaged easily.” J told the counsellor “I just want to see him once more now, but I don’t want to see him again”. Her reasons related to feeling unsafe and a fear that her father might “try to hit me and ask me where does my mum live”. When the court counsellor explored with J how she would feel if the court ordered contact resumed, J was reported as saying that she would feel “kind of sad”. She indicated to the court counsellor that she would be happy if the court were to prevent contact.
The observation session involved S, K, J and L. C was not included. The Father attempts to engage L, for example placing her on his lap and picking her up were largely unsuccessful. On each occasion L pulled away and went back to S.
At the commencement of the interview the three elder children were tense in their presentation. They complied with their father’s directions to sit with him. After talking to the children quietly about school and their holiday, the Father said to K words to the effect “who told you that you could not see your father?” K appeared tense to the Counsellor and said that she did not know. The Father then asked the children generally why they were not seeing him. Court Counsellor Buckingham reports “the children remained largely silent, appearing reluctant to answer him and avoided eye contact with him. The father then pressed the children about their wishes to stay overnight and suggested that they talk to their mother seeking her permission”. The counsellor reports “these questions appeared to cause some internal conflict with the children, who appeared subdued, reluctant to respond and tense.”
Later in the observation session the Father called K over to him. The child spoke happily to him about a recent school event and about being made a library monitor. After short further discussion the court counsellor reports “he then asked her if she missed him; K cautiously responded that she did. He then asked her if she missed “rocky” and K said that she did not, to which Mr A laughed and kissed her on the forehead. He then whispered something in K’s ear and she put her arm around his shoulder. He then said, “so you don’t want to see your dad” to which she responded evasively, saying that she did not have his phone number. Mr A said that he wanted to give her his phone number and K responded cautiously, “I don’t know” adding “if they [later Mr A said she was referring to the court] let you it is alright.”
Shortly after the Father called J over to him, placed her on his lap. They talked happily about J’s activities at school. The court counsellor reports there was some affectionate interaction between father and daughter. The Father then is reported thus “Mr A then asked her if she had missed him and pulled her closer to him. J looked uncomfortable and looked away.”
I am satisfied that while the elder three children can recall happy aspects of their life with their father, their wishes are to not have contact with him. Their wishes are materially influenced by their recollections of family violence and fear for their mother if contact, included supervised contact is ordered. The elder children, particularly K, were anxious that their father would question them during the observation session and during contact about the Mother. Thus they fear that they may as a consequence reveal information that would enable him to locate them.
The Father’s case is that he believes the Mother has influenced the children by “brainwashing” them in the formulation of their wishes. This was not put to the court counsellor and the evidence does not support the belief. The first interview with the District Officers took place within weeks of the final separation and I am satisfied that the children’s’ views express to the district officers at that time were their own views. It is possible that their wishes and fears may have been subsequently influenced by the Mother’s behaviour, such as that reported by the court counsellor when she became demonstratively agitated at end of the children’s observation session. However, I am satisfied that the most influential factor in the children’s formulation of their current wishes is their own recollections of their life with their father and the violence within their home.
Neither L nor C has expressed any view. C is largely non verbal. L’s reluctance to engage the Father, even in the secure surroundings the court counselling observation session and in the company of her elder sisters, indicates that this child has either no attachment to the Father or is anxious being with him. The documents exhibited from the children’s’ school disclose the children are intelligent, well behaved and have at least age appropriate maturity. This is corroborated by their balanced recollection of their father and their good manners observed by the Court Counsellor. I am satisfied that the eldest children’s wishes must be given significant weight in these proceedings.

Nature of the children’s relationships

The children have lived with their mother all of their lives. She is their undisputed primary care-giver. She is the parent who has exclusively attended to their needs since at least 1999 and has been predominantly since birth. Considerable insight into the Mother’s relationship with the children can be gleaned from the Family Report. The Court Counsellor talked to the other about the children and the Mother described the children thus.
She described K as a sensitive but outgoing child, who enjoys the outdoors. She said that K likes to “mother” the younger children and likes to help with the housework. She described J as a happy, carefree child so long as she knew that she (Mrs A) was there, but who was more insecure than her sisters, and “clingy” to her. She said that J enjoys playing with her younger sisters. She described L as “a card” who likes to copy the older children. She said that she is particularly protective of L because she was born prematurely. C was described as her “lucky last”, who had just started to crawl and had a “bubbly” nature.
When speaking about the children her face lit up as it did in court. She reported to the Court Counsellor S was an affectionate child who was “bubbly, bright and intelligent” who enjoyed reading, playing on the computer and spending time with her peers.
The descriptions used by the Mother demonstrate a close and loving relationship enjoyed with the children. Similarly the children also used language that supports a finding that the children have a close and loving relationship with the Mother. The Court Counsellor reports “J seemed to have a strong positive regard for her mother, whom she described in a positive way”. S spoke to the Court Counsellor about feeling happy after she was re-united with her mother by Police after the January 25 incident and about the Mother’s pleasure when S received good school reports. Both K and J were concerned about contact. One reason was they feared the Father would question them in an attempt to locate their mother. They clearly feel protective of the Mother.
The children’s healthy adjustment indicates the Mother is meeting their emotional needs and that the relationship is a healthy one. Although concerned for their mother there was no evidence of parentification. The Mother has not been able to protect the children from exposure to her very great fear of the Father and they are acutely aware of it. During the Court Counselling sessions, the Mother “reacted in a highly agitated and distressed manner” on being told by the children that they had seen their cousins and a paternal uncle. In the children’s presence she expressed fear of the paternal uncle. She and the children were taken from the building by court security. This is but one example when the Mother exposed the children to her fear of the Father and his family, there are a number. I am satisfied having seen the Mother and her very great distress in the secure environs of a court room that her fear of the Father has become all consuming. She is currently unable herself to cope with any contact with him and cannot manage her distress when this is a possibility. Her agitation, fear and distress are part of her relationship with the children. It is a part, however, that surfaces when contact with the Father is a possibility. Otherwise it is suppressed and the relationships are healthy and happy between the Mother and children. That this is so is corroborated by the children’s healthy presentation to the Court Counsellor. I am satisfied that if the Mother was continuously agitated and distressed in the children’s presence that there would have been significant signs of maladjusted parent/child relationships seen by the Court Counsellor. There weren’t any such indicators.
The key to children’s relationship with the Father is to be found in their wishes concerning contact. I have already made detailed findings concerning their wishes and will not repeat them. A feature of the elder girls discussions with the Court Counsellor was expressions of fear, anxiety and sadness when speaking of their father. He was variously described as “angry” (by S), “ok [about seeing her father during the observation session] but I don’t feel that it’s safe by myself” (by K) and “I don’t feel safe” (by J). L avoided his kiss.
The children were able to recall happy times with their father. They were able to participate in the observation and talk to him. The elder girls understood that he would feel sad about not seeing them. K telling the counsellor that this might help him understand how their mother had felt when he hit her. These children have considerable insight into their father’s personality and know him well. K had expressed fear to the Court Counsellor that the Father would question and pressure her. That is what he did. He ignored her and the elder girls discomfort and pressed on in spite of their obvious reluctance and tension. Perhaps the Father did not understand his daughters reaction. Whichever scenario is the appropriate one, both demonstrate that the Father pursues his own needs irrespective of the children’s feelings.
I am satisfied that the elder three children have a fearful and sad relationship with the Father. Their view of him has a basis in objective reality. Whilst there is no doubt that he loves his daughters the relationship is an unhealthy one. The father’s perspective that the children have been brainwashed by the Mother and denial of family violence gives him a reality that conflicts totally with his daughters’ reality. In this context there is little prospect that their relationship can heal and improve.

Changing the children’s circumstances

The mother’s proposals will maintain the children’s current circumstances and the father’s involve significant change. When interviewed by the Court Counsellor the children made it clear that they are happy in their current lives. Not only do they not seek change as proposed by the Father, they oppose it. I am satisfied that the children are afraid of their father. This finding is significant in balancing the competing proposals. The elder children were concerned that during the observation session and during any contact, the Father would question them and try to discover their mother’s whereabouts. His dealings with K show that their fears are well founded.
Changing the children’s circumstances as the Father proposes will give the children the opportunity to re-establish relations with their cousins, their aunts and uncles, grandmother and father. The children were happy to see their cousins when the opportunity arose during the preparation of the Family Report. Their paternal grandmother impressed as a warm and kindly grandmother. It is likely the children have enjoyed an attachment to her and to the Father’s family. This is particularly so as the Mother had no contact with her family after the children were born and the children’s extended family relationships were established entirely within the context of the Father’s family.
Introducing contact, including supervised contact, carries with it significant risks. These risks include an unacceptable risk to the Mother’s safety and to her emotional well being. Both have the capacity to seriously impact upon her capacity to parent the children. She and the children have changed their name and live anonymously to the Father and his family. Even during supervised contact, there is an unacceptable risk that the children may reveal information that would enable the Father to locate the mother. Any such breach of confidence is likely to be revealed by the children to the Mother. There is a significant risk that she would then withdraw the children from their schools, change their housing and embark on the long and disruptive process to again establish their lives in secrecy from the Father.
I am not satisfied that the benefits of changing the children’s circumstances as proposed by the Father outweigh the risks to the children and their mother. In coming to this conclusion, I have taken into account that this will mean that these children will have no relationship with their father or his family.

The practical difficulty and expense of contact

This is not a significant issue. I am satisfied that there should be no contact between the children and their Father.

Meeting the children’s needs

The children are all doing well at school. They are intelligent and hard working. This is corroborated by Exhibit C. Their interaction during the observation session was close and supportive of each other. Each of the elder children in her own way demonstrated happiness with current lives. They are happy at school and have good peer relationships. Their mother facilitated attendance at individual and group therapy for children who have witnessed domestic violence. They maturely discussed their family’s history with the Court Counsellor and with DOCS officers. They are to all outward extents developing well. The Father makes no claim for residence in spite of his criticisms of the Mother. I infer from this that he is satisfied that she meets their physical and intellectual needs. I agree that this is so and I am satisfied that their physical, intellectual and emotional needs are well met by the Mother.

The Father does not have the capacity to meet the children’s emotional needs. His reality is not their reality. He told the Court Counsellor that if the Mother divorced him he intended to take the children (from her). He was unable to understand the effect alone of two years separation on the children’s relationship with him and said any history given by the children of family violence must have been the result of brainwashing by the Mother. The Counsellor’s conclusion that “Mr A’s attitude….appeared to be predominantly motivated by what he believes are his rights and appeared unable to focus on any arrangement that could take into account the feelings and views of his children” is consistent with the evidence he gave. He showed little capacity to understand the children’s emotional needs. If he does have a level of understanding it was not apparent. During cross examination his answers were focussed on his rights as a parent and I am satisfied that his approach to the children is that they must cope. The difficulties contact would cause for the children had little impact on his thinking.
The Father impressed me as an intelligent man and I am satisfied that he is capable of meeting the children’s intellectual needs.

The children’s maturity, sex and background

I have already made findings relevant to this sub heading and will not repeat them. The children’s heritage is Anglo-Australian on the Mother’s side and Lebanese on the Father’s. Prior to final separation the children had the opportunity to participate extensively in the Islamic faith. Since separation the Mother has abandoned the Islamic faith and I am satisfied the children do not receive guidance from her in this religion. Although the Mother gave evidence in her Affidavit to the effect that she would maintain an involvement for the children in both the Islamic faith and the Lebanese culture, I do not accept that evidence. During her oral evidence she was openly critical of the Lebanese culture describing it as a violent one. She complained that the Father forced her and the children to wear “the veil”. Although she acquired some Arabic language skills she does not appear to have maintained them. The elder children speak Arabic but unless exposed to that as part of their schooling or family life may well lose this language skill.
If orders are made as sought by the Mother it is likely that the children will lose contact with their Father’s heritage, religion and culture. This is an important consideration. They would be enriched by both and the loss is detrimental to their welfare. However there are other matters of greater significance to their welfare that must have priority when deciding the matter.

Family violence

This is the pivotal issue in the proceedings. The hidden nature of family violence means that there is often little objective evidence available to corroborate allegations and denials. That is not the situation in this matter. The Mother gave detailed evidence of a serious assault in April 1999 that resulted in significant injuries to her. She said that after the assault she was taken by the Father to his family and she and the children were effectively held by the Father with his family’s assistance until her injuries were less obvious. Whilst at Y’s home she alleged she was hit again and that Y or L intervened to help her. Y was present at court on each day of the proceedings. She alleges that Z has seen the effect of the assaults and was aware of the assaults. Z swore an affidavit and gave oral evidence. She did not deny the Mother’s allegations in her Affidavit.
The Mother’s evidence is that the Father’s mother as well as other members of his family were aware of his assaults of her and did not help her. She alleged that his mother remonstrated with him when he tore up family photographs and that he ejected his mother from the home. The paternal grandmother swore an Affidavit and gave oral evidence. She did not deny the mother’s allegations. Counsel for the Mother submitted that in relation to each of these witnesses I should apply the rule in Jones v Dunkel. I agree and am satisfied that their evidence would not have assisted the Father.
Cogent corroboration of the Mother’s allegations is available from the children. Of the 25 January 1999 incident K gave the following account of the 25 January 1999 incident to DOCS officers: “K stated that the last time they went to stay at C House for 2 weeks because R and M were fighting. This incident is consistent with the notification on
26 January 1999. M had a black eye, all bruises on her arms, legs and back as R punched her. M went to next door. When M was doing the washing, she climbed over the fence and rang the Police who came and took them to a motel and then to the refuge. During the stay at C House, M talked to R on the phone every second Sunday. M told the children that they could go to see R. M took the children to see R. M rang one of R’s brothers to pick them up. They returned home as M and R got back together. Then M and R started fighting again and the children had to go to their cousin’s house. R took M into the kitchen, hitting her as the children were eating.”
On the evening of the 25 January 1999 the Mother says she was beaten by the Father about the head, face and upper body. This she said continued throughout the evening and until early the following morning. At about 9.00 or 10.00am she went outside under the pretext of hanging out the washing. She climbed over the back fence and ran to her neighbours. From there she made contact with the Police. This incident is denied by the Father. He alleged that the Mother banged her head herself and caused her own injuries.
As I have already found the Father was charged with one count of assault occasioning actual bodily harm and a backup charge of common assault. He was refused Police bail. The events contained in paragraphs 38-41 then unfolded. On 24 March 1999 the Mother attended C Community Health Centre on referral from the accident and emergency department of C Hospital. The intake notes are Exhibit ‘D’ in the proceedings. A Registered Nurse wrote up the intake records. The notes include the following summary “presented with husband who was pushing her in a wheelchair as she was tremulous, weak and unable to walk. Her view of problem: can’t control myself from nervousness and depression. States this is a problem for many years but much worse for 1-2/52. Feels guilty about lying to Police and having husband charged with assault and AVO. Feels husband always wants to hurt her, but states husband very supportive”. And ”social skills poor at present due to anxiety and guilt. Herself…depressed for 2/12 severely – but depresses for eight years. Affect flat - Non reactive. Attempted self strangulation last pm with rope but husband stopped her. Feels medication doesn’t help”.
The Mother denies giving a history to Registered Nurse Gillette. She said that the Father was with her throughout the attendance at the hospital and that any history taken was taken from him. This was her evidence in answer to questions from her Counsel during her case in reply. Her evidence was not tested by Counsel for the Father. He submitted that the document “spoke for itself” and that the contents of the admission notes must be accepted in preference to the Mother’s denials. That is not so. In addition to challenging the Mother in cross examination, it was necessary for the Father and/or the Registered Nurse to give evidence as to the intake assessment contained in the hospital notes. This evidence was not given and I accept the Mother’s denial.
The Mother’s history of violence as I have already found is corroborated by the children. The Family Report contains detailed descriptions by the three elder children on the violence that the children say they saw by the Father to the Mother. There are some inconsistencies in the Mother’s account of the violence. These inconsistencies have included some dates and times when she alleged events occurred. However, there is a core consistency in the subpoenaed material, her Affidavits and oral testimony. After a defended hearing the Father has been convicted of assaulting the mother. I take that into account. It was submitted in essence that the Mother’s history of family violence is inconsistent with her own actions in reconciling with the Father and allowing the January 1999 interim AVO to be dismissed. I do not accept that submission. I am satisfied that the Mother has had great difficulty separating from the Father and that she is fearful of him.
I find that the Father has assaulted the Mother on 25 January 1999 and between 10 and 15 of April 1999. These assaults were severe beatings and the latter resulted in injuries to the Mother. I accept her evidence that the scars on her body were caused by the Father when he assaulted her. I find that the children’s descriptions of family violence to the Court Counsellor and to the DOCS Officers are credible and corroborate the Mother’s allegation of long standing and chronic violence by the Father to the Mother. Inherent in these findings is my conclusion that I do not accept that the allegations made by the Mother are to cover up self mutilation nor that the children have been brainwashed by her.
Contact by the children to the Father would expose the Mother to an unacceptable risk of violence. As a consequence of this the children will be exposed to an unacceptable of psychological harm. They are protective of their mother and there is a risk as they get older that they may physically intervene to protect her. Hence they may be hurt. This is so even if the contact is supervised. The contact supervisors proposed by the Father are members of his family who the mother says are aware of his violence towards her. She does not accept that they would be forceful enough to resist the Father’s efforts to locate her through the children. The Father’s mother and sister were demonstrably loyal to him when giving evidence. They are not impartial and whilst they mean well, they neither have the skills nor objectivity to supervise contact in a matter with the significant history of violence that this family has.

Achieving finality.

Contact orders, including orders for no contact, are rarely final. These children are young and their circumstances as well as their parents circumstances may change. The Father will have the opportunity to consider carefully the evidence he has heard during these proceedings, particularly the contents of the Family Report and DOCS interviews with the children. He has the opportunity to undertake therapy and equip himself to accept his children’s reality. He will be able to make an application for contact in the future. I take that into account. However, that consideration must give way to other more relevant matters if the best interests of the children are to be achieved from these proceedings.

Conclusions

This is a family unit that has experienced chronic and severe domestic violence. Family violence and its effect have dominated these children’s lives. Again and again the Mother has moved home trying to protect herself from the Father. The elder children have lived in Women’s refuges and protected accommodation. Although performing well, they are still vulnerable to further psychological harm. The children are aligned to their mother and loyal to her. She is their primary care-giver and has responsibility to ensure their emotional, physical and intellectual development. She does not have the capacity to do this if the children have contact with the Father.
The Mother has a great fear of the Father and believes he will harm her if given the opportunity. This fear is based on prior history and his assaults of her. A court will only make an order that there be no contact between a parent and child in the rarest of circumstances. This is because the objects of the legislation themselves promote contact and emphasise its desirability. Children have the right to know, love and be cared for by both parents. For these children their interests require that at this time an order for no contact be made. Making this order will deprive them of a relationship with their Father, paternal relatives and participation in their Lebanese culture. Making an order for contact, including supervised contact, will expose them to an unacceptable risk of family violence.
The Court Counsellor concluded that the children were unlikely to benefit from re-establishing contact with the Father. This is so.
The injunctive orders will promote compliance with the order that there be no contact. They do no more than ensure that the children will remain in Australia with the Mother and that the Father does not approach or interfere with the Mother and children. This will maximise their sense of security and enable the Mother and children to continue to recover from the effects of their earlier violent lives.

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate:

Date:

[2001] FMCAfam 29

29 March 2001