AA and PG - [2005] FMCAfam 272

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AA & PG

[2005] FMCAfam 272

FAMILY LAW – Children – residence – shared residence – primary carer – parties attitude to parental responsibility – young child strongly attached to mother – where no contact to father for 18 months while father overseas – father obtains parenting order from Revolutionary Court in Tehran – culture – where there is a conflict between a parents’ cultural and religious beliefs and a child’s best interests the court must promote the child’s best interests – shared residence application refused – graduated contact arrangements ordered.

Family Law Act 1975, ss.60, 64, 65, 68

B v B Family Law Reform Act (1997) FLC 92-755

Applicant:

Respondent:

File Number:

PAM2706 of 2002

Judgment of:

Ryan FM

Hearing dates:

6 & 7 April 2005

Delivered at:

Parramatta

Delivered on:

11 April 2005

REPRESENTATION

Solicitor Advocate for the Applicant:

Ms F. Daniels

Solicitors for the Applicant:

Newman & Associates

Solicitor Advocate for the Respondent:

Mr V. Massey

Solicitors for the Respondent:

Barber & Massey

ORDERS

All prior parenting orders are discharged.
“The child” Aman (not his real name) born in 2000 shall reside with the mother.
The father shall have contact with the child as follows:
(a)Commencing Saturday 16 April 2005 each second Saturday from 9 am until 5 pm until and including the last Saturday in July 2005;
(b)Commencing on 25 April 2005 each alternate Monday from 12 noon until 4 pm until one week before the child starts school.
(c)Commencing 6 August 2005 each second weekend from 9 am Saturday until 5 pm Sunday until the commencement of term 4 in 2006.
(d)On the first contact weekend after the commencement of term 4, 2006 each second weekend from after school Friday until 4 pm Sunday.
(e)On the first contact weekend after the commencement of term 1, 2007 each second weekend from after school Friday until the commencement of school Monday.
(f)From 4 pm Christmas Day 2006 for one week.
(g)Thereafter, for one half of each gazetted New South Wales school holidays as agreed between the parties AND failing agreement being the first half in years ending in an even number which shall include years ending in a zero and the second half in years ending in an odd number.
(h)During the No Ruzz (New Year) celebration in each year as agreed.
(i)Commencing 2006 during Ramadan each Wednesday from half an hour before sundown for two hours.
(j)For Father’s Day from 9 am until 5 pm.
(k)At other times as agreed.
Upon order 3(f) becoming operative, weekend contact is suspended during school holidays.
Unless otherwise defined in these orders school holiday contact shall:
(a)Commence at 10 am;
(b)Conclude at 5 pm;
(c)Be calculated from the day after the last day of school until and including the day immediately before school resumes;
(d)Pupil free days are deemed to be part of school holidays;
(e)Years ending in a zero are defined as years ending in an even number.
After a period of school holiday contact, contact shall resume on the first weekend after school has resumed if the father has exercised contact during the first half of the holidays AND on the second weekend after school has resumed if the father has exercised contact during the second half of the holidays.
Commencing term 4 2006, if a contact period occurs on a day adjacent to a public holiday, it shall be extended to include the public holiday. If the public holiday is a Friday it shall start at the usual time on the Thursday. If the public holiday is a Monday it shall conclude at the usual time on the Monday.
During periods when the child is on block holiday contact with the father the mother shall have telephone contact with the child each Monday and Thursday between 5 pm and 5.30 pm. The father shall ensure that the child is available for contact during those times.
In the event that contact is due to occur on Mother’s Day, contact is suspended from 5 pm Saturday for that weekend.
Contact changeover take place at outside North Sydney Post Office or at the child’s school as the case may be.
The father and the mother have joint responsibility for making decisions about the long term care, welfare and development of the child.
The father and the mother have sole responsibility for making decisions as to the day to day care, welfare and development of the child whilst he is in their care.
Each of the parties is entitled to obtain directly from any school attended by the child or from any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
Each of the parties shall do all such acts and things necessary to comply with any treatment prescribed or recommendations made by a health practitioner for assessment or treatment of the child including any need for hospitalisation.
Each party shall keep the other informed of all medical, dental and other health related treatment being undertaken by the child.
The mother shall nominate on a family general medical practitioner who will be the child’s primary treating doctor. To the extent possible the parties shall ensure that the child attends this doctor accompanied by one of the parties, except in the case of an emergency.
Both parties give each other not less than twenty one (21) days notice in writing of their intention to change address.
Both parties shall keep the other advised of contact telephone numbers. These telephone numbers are to be used for telephone contact or otherwise in relation to matters concerning the child only.
The father is restrained from:
(a)Speaking or permitting any other to speak to or about the mother, her friends or family in a negative, offensive or unpleasant fashion in the child’s hearing.
(b)Discussing any proceedings between the parents in the presence or hearing of the child or permitting any other person to do so.
Until further order the parties are hereby restrained from applying for or obtaining a passport for the said child except by leave of the court.
I DIRECT that the mother’s solicitor serve a sealed copy of these orders on the Australian Passport Office and the Iranian Embassy. This o0rder to be complied with within fourteen (14) days.
Until further order the applicant and the respondent, by themselves, their servants or their agents are restrained from removing or attempting to remove the child Aman born 27 October 2000 from the Commonwealth of Australia.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the child from the Commonwealth of Australia.
Until further order the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said child’s name on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.
The Australian Federal Police maintain an airport watch of the child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings are returned at the expiration of one (1) calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
All outstanding applications are dismissed.

Notation: Both parties and their lawyers were present when these orders were made after oral judgment.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM2706 of 2002

Applicant

And

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.

Introduction

This is a parenting application in which AA (“the father”) who seeks shared residence of the parties’ only child, Aman. PG (“the mother”) wants Aman to continue living with her and proposes a graduating arrangement for regular contact.

Chronology

These parties married by an arranged marriage in Tehran in 1998.
Aman was born in 2000.
The parties separated in 2001, at which time Aman was 14 months old.
At separation the mother left the family home with Aman. One week before separation, during an argument, the father told the mother he wanted a divorce. Because she had only arrived in Australia from Iran three years earlier, and was without friends or family support in Australia, the mother approached an Iranian social worker for assistance. Through the social worker the mother secured temporary shelter in a women’s refuge. Without forewarning the father that she was leaving while he was at work the mother took the child and left.
After separation the father collected all of the family’s belongings, including the majority of the mother's and child’s clothes, and returned to live with his mother. The father sought legal advice from the Legal Aid Commission of New South Wales and the Chamber Magistrate at Hornsby Local Court. He also approached the Iranian Embassy in Canberra about his situation, supplementing his knowledge of Iranian law acquired while he worked in the justice system in Tehran. Having weighed up the comparative advantages and disadvantages for him of the Australian and Iranian Family Law systems, the father decided to return to Iran and ask the Iranian Courts to deal with separation issues.
Before he left Australia on 21 January 2002 the father wrote to the Department of Immigration and Multicultural Affairs asking that the department deport the mother to Iran.
On 3 March 2002 the father departed Australia for Iran. Sixteen years ago the father migrated to Australia under a Skilled Worker Migration Program. He, and members of his family, obtained permanent residence and the father has lived in Australia ever since. The father has retained Iranian citizenship, and thus his entitlement to invoke the jurisdiction of the Iranian Courts. Upon his arrival in Tehran, the father applied for an order that the mother return to Tehran with Aman, and thereafter live with him in Tehran. His Iranian application dovetailed with his request to DIMIA for the mother’s expulsion from Australia to Tehran.
Although she was aware of the Iranian proceedings, the mother decided to remain in Australia. It was, and remains her belief, that the father’s Iranian application was certain to succeed. Unable to contemplate forced reconciliation and believing that her refusal to reconcile would result in an automatic custody order in the father’s favour, the mother remained in Australia.
As the mother feared, the father’s application succeeded and the mother was ordered to return to Tehran and resume the marriage. When she did not comply the father obtained an order that Aman live with him in Tehran, and for the mother to have contact between 2 pm and 4 pm each Friday. Asked during cross-examination whether he considered this was a reasonable outcome, the father said it was.
After the father started his Iranian proceedings the mother appointed her brother as her attorney in Iran. The brother retained lawyers to represent her in Tehran. Acting on her instructions, her brother initiated action to recover her dowry. The mother’s dowry included 300 Bahar Azadi gold coins. Altogether her dowry was worth approximately $40,000. When he departed Australia the father knew that the mother could reclaim her dowry. However, he believed that at worse he would be ordered to repay the dowry in $60 monthly instalments. Unfortunately for him his information was out dated. The mother secured a judicial order for repayment of the full amount as a lump sum. To ensure compliance the father was restrained from leaving Iran until the dowry was repaid.
Although she could have consented to the father’s earlier departure from Iran, the mother refused her consent. She was aware that the father had given up his plan to live permanently in Iran and wanted to return to Australia. However, the mother decided that withholding her consent was the only leverage she had to encourage the father to discharge the Iranian orders and to grant her a religious divorce. Unless he does so, upon her return to Iran she will be forced to relinquish the child and will be a social outcast. Eventually, notwithstanding that the mother withheld her consent, the father persuaded the Iranian authorities to allow him to leave Iran. He returned to Australia in February 2004. In June 2004 he started these proceedings.
On 9 July 2004 the court made interim orders by consent, which orders are set out below:
1. The father have contact with the child Aman born in 2000 each Friday commencing 16 July 2004 from 11 am to 1 pm at Eastwood Shopping Centre.
2. For the purpose of implementing contact, the mother deliver the child to the father at Eastwood Shopping Centre at the commencement of contact and collect him from the father at that place at the conclusion of contact.
3. The mother be permitted to remain at the shopping centre during contact.
These orders were further varied by consent on 17 September 2004. These orders are set out below:
1. Order 1 made 9 July 2004 is extended so that for the next four weeks contact takes place from 11 am to 2 pm and thereafter from 11 am until 3 pm.
2. Contact changeover will be at Roseville shopping centre..
THE COURT FURTHER ORDERS:
3. Order 3 made 9 July 2004 is discharged.
Subject only to the father’s failure to return Aman to the mother on time, contact has taken place as ordered.
Both parties agree that contact has generally gone well. However, the father says that Aman often wants to stay longer and becomes upset when it is time for him to return to the mother. Presumably this is why he frequently fails to return Aman on time. The mother sees two continuing problems with contact. Firstly, when Aman returns from contact he repeats derogatory remarks she believes the father makes about her, her family and friends. She says this is confusing for Aman, and has the potential to undermine her relationship with the child. Secondly, the father too often fails to return the child on time. On one occasion he had the child telephone the mother and ask to stay longer. As Aman is only three years old, the mother considers this inappropriate, and a sign that the father is prepared to involve the child in his parent’s dispute. She fears this is a portent of the future.

The father’s circumstances

The father was born in Tehran in 1964, and is 40 years old. He lives with his 67-year-old mother in St Leonards. He and his mother rent this three-bedroom apartment from the Department of Housing. Photographs of the apartment reveal that it is a clean and well-maintained residence. The home more than adequately meets the child’s accommodation needs during contact. It is completely appropriate for the type of order the father seeks.
Asked about the whereabouts of the parties’ furniture and household goods, the father claimed that he sold them prior to his departure from Australia. Later he said he could not recall what had happened to the household goods. As part of his case the father tendered a series of photographs, presumably to dispel any submission that Aman is unhappy during contact. Although this was not part of the mother’s case, the photographs are nonetheless useful. The mother recognised the furniture and a carpet in the St Leonards home as being marital furniture the father removed from the family home and supposedly disposed of. Neither the father nor his mother challenged the mother’s evidence. I accept the mother’s evidence on this issue.
Where there is a conflict between the parties evidence, I prefer the mother’s. Not only because of this discrepancy, but also because of the manner in which the father gave evidence.
Throughout the hearing the father constantly talked over the top of his interpreters and interrupted his lawyer. He refused to answer simple questions, and was determined to say everything he wanted to say. He was no less determined to not answer questions when he thought his answers would not assist his case. The father did not deny the mother’s evidence that he wrongly claimed in the Tehran proceedings that she is a member of the Mujahedeen, and made other accusations, without any proper basis. In these proceedings the father claimed that the mother mistreated the child, evidenced by bruising on the child’s hands and complaints. The father’s mother, who impressed me as an honest witness, said that Aman is obviously well cared for and there are no signs that his mother has mistreated him. When I consider the totality of the evidence, unfortunately, I am satisfied that the father’s testimony was generally unreliable.
The father is a qualified mechanic, who obtained his trade qualifications in Iran. Upon his arrival in Australia the father attended TAFE, where he completed a six-month’s transition program to have his qualifications recognised in New South Wales. Unfortunately, the father has been unable to find work in Australia as a mechanic. In the 16 years since he migrated to Australia the father has worked for one year as a car detailer, casually in the food and beverage industry for a short time, and as a taxi driver from about 1997 until the parties separated.
Since his return to Australia in 2004 the father has obtained a carer’s pension, because he looks after his mother. The father’s mother does not speak English, and is said to be in such poor health that she needs the father’s full time care. Curiously, the father and his mother both say that she would be substantially responsible for Aman’s care. It seems inconsistent that the father’s mother although unable to care for herself is able to care for Aman.
The father says he may resume taxi driving after this hearing. Presently he pays $20 per month child support. The father shows no concern that this obviously inadequate payment means that the mother shoulders the burden of providing financially for their son. Whilst I accept that the father has had real difficulties as a migrant from a non-English speaking background securing work in his chosen profession, I am far from satisfied that these difficulties fully explain his poor work history. The impression I have of the father is that he works when it suits him, and not otherwise. For so long as paid employment will result in a portion of his income being paid to the mother as child support, it is unlikely that the father will accept paid employment. This reflects poorly on his attitude to the responsibility of parenting, and as a role model for his son.
The father’s extended family have migrated to Australia. His sister has married and lives nearby. Photographs show Aman plays happily with his cousins, and appears to relate well to his grandmother and members of his father’s family.

The mother’s circumstances

The mother was born in Tehran in 1970 and is 34 years old. In November 1998 she migrated to Australia as a spouse, sponsored by the father. Beforehand the father travelled to Tehran in order to find a wife. He lived in Tehran for about one year prior to the mother’s migration to Australia.
The mother and child live in a three-bedroom home unit rented from the Department of Housing in North Sydney. This unit is rented from the Department of Housing. Her mother arrived from Iran in October 2004 for twelve months. She has a visitor’s visa, and plans to return to Iran in October 2005. When she does so the mother will have no family in Australia.
Aman attends the local Child Care three days per week, on Tuesdays, Wednesdays, and Thursdays. The mother delivers him to the centre between 8.30 am and 9 am, and collects him between 4.30 pm and

5 pm. Child care gives Aman an opportunity to play with other children, and to acquire English language and other social skills. Aman is healthy and developing appropriately.
Whilst Aman is attending child care the mother studies. When the mother first arrived in Australia she attended English language classes. During 2004 she attended TAFE, where she completed a Laboratory Technician’s Certificate. This year she started studies at the same TAFE for a Pathology Diploma. The mother’s long term ambition is to attend university part-time, studying medical science. The mother hopes to obtain part-time work, and when Aman is old enough for her to do so, full-time work.
The mother provides a good role model for the child in terms of hard work, and a sound work ethic.

The relevant law

In deciding the residence and contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.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 (1995) (1997) FLC 92-775. 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 contact 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.
Although not binding authority the Australian pre-Family Law Reform Act cases give useful guidance to those factual matters that a court adjudicating a 50/50 shared parenting application pursuant to the current legislation should consider. There is also a core consistency found between the English and Canadian authorities. These countries share a similar jurisprudence in the adjudication of private family law disputes with Australia. This commonality is apparent in a number of respects. All jurisdictions implement a paramountcy principle. Although its statutory formulation may differ slightly, the essential premise is the same. That is the best interest of the particular child is the paramount or primary consideration. There are no presumptions that override the court's obligation to promote the child's best interests. Individual justice is fundamental and hence the exercise of judicial discretion critical. Nowhere is it more apparent that Australian courts exercising jurisdiction under the Family Law Act can look to Canada and England for guidance in the interpretation and application of Australian law than in B and B: Family Law Reform Act (1997) FLC 92-755. In that matter the Full Court of the Family Court of Australia addressed the impact of the Family Law Reform Act 1995 upon the principles to be applied in parenting cases under Part VII of the Family Law Act 1975. In doing so they reviewed the English and Canadian authorities.
Although there are consistencies in the applicable family laws between these countries there are differences that cannot be overlooked. The English law gives the person who has a residence order the authority to manage the child’s daily life. In Australia that arises pursuant to a specific issues order. An order for residence will do no more than determine with whom a child will live. The English law also places greater emphasis on minimising judicial intervention in parenting cases. As John Dewar has explained: “there is an explicit direction to the courts [in the Children Act 1989 (UK) s.1(5)] that they should only make an order if it can be shown that to do so would be better for the child than making no order at all (the “presumption of no order”).”[1] One major respect in which the Canadian law differs from the Australian and English law is that the language of custody, guardianship and access have not been replaced with that of parental responsibility, residence and contact as they have in both the Children’s Law Act 1989 (UK) the Family Law Reform Act1995 (Cth) (though the concepts associated with these terms in Australian law are, as suggested above, not identical to the English concepts).[2] In Canada, decision-making authority is part and parcel of any order for custody. As noted above, in Australia, an order for residence (physical custody) will do no more than determine with whom a child will live. Furthermore, the Canadian legislation requires its courts to maximise the time a child spends with both its parents.[3] It is not surprising that the Canadian case law is replete with judicial analysis of factual indicia that work in favour or against equal shared residence orders (joint physical custody). The maximisation provision is, of course, not absolute. It will be restricted to the extent that it conflicts with the best interests of the child.[4]
[1] John Dewar, “The Family Law Reform Act 1995 (Cth) and the Children Act 1989 (UK) Compared‑Twins or Distant Cousins?” (1986) Australian Journal of Family Law 18 at 20.
[2] See Brenda Cossman and Roxanne Mykitiuk, “Reforming Child Custody and Access Law in Canada: A Discussion Paper” Revue Canadienne de Droit Familial Vol. 15 at 13-78.
[3] Divorce Act s16(10). It is interesting to note that in B and B (Family Law Reform Act 1995) (1997) FLC 92-755, the Full Court stated (at para. 7.58) that the Canadian maximisation of contact provision has “obvious similarities to the terms of ss. 60B(2)(b) and 68F(2)(d)” of the Family Law Act 1975 (Cth). The Full Court also stated (at para. 9.60 ‑ my emphasis): “In cases where there are no countervailing factors the s.60B principles may be decisive, not only because they are contained in s.60B but because they accord with what is in the best interests of the particular children. Where there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable. However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary to the legislation and contrary to the long established views of this and other courts which deal daily with the welfare or best interests of children.”
[4] See, for example, Young v. Young [1993] 4 S.C.R. 3 and Madame Justice Lachlin’s judgment in the Supreme Court of Canada case of Gordon v. Goertz (1996) 134 DLR (4^th) as cited by the Full Court of the Family Court of Australia in B and B (Family Law Reform Act 1995) (1997) FLC 92-755 at para. 7.67.
Drawing then from the case law the factors that the court should particularly examine in cases where a party seeks orders that share a child's time equally between its parents (or others) include the following:
·The parties’ capacity to communicate on matters relevant to the child's welfare.
·The physical proximity of the two households.
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50-50 living arrangement without undermining the child's adjustment?
·Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra curricular activities.
·Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
·Whether or not the parties respect the other party as a parent.
·The child's wishes and the factors that influence those wishes.
·Where siblings live.
·The child’s age.
This list is not exhaustive. It does no more than set out some usual elements that a court will consider to the extent that each may be relevant. It does not usurp the pivotal role of s.65E. Each factor fits comfortably within s.68F(2). Based on other courts experience these factors have be useful in deciding the suitability of a particular set of circumstances for a shared parenting arrangement.

Determining the child’s best interests

Neither party contends that Aman has any clear wishes in relation to the outcome of these proceedings. Given his age he does not have the life experience to weigh up the nuances of his parents’ competing proposals. Such wishes as may have been referred to can carry no weight.
Section 68F(2)(b) is of particular importance in this case. There is no doubt that the mother is the child’s primary care giver. After Aman was born the father continued full-time work as a taxi driver. As a taxi driver he worked long shifts, often starting between 2 and 3 pm, and finishing 12 hours later. When he came home he slept. Prior to separation the father assisted the mother with Aman’s care, for example, occasionally minding him for a few hours when she was at English language classes. More often, however, the mother’s mother, who was visiting Australia when Aman was born, cared for Aman on the few occasions the mother was absent. It is clear that prior to separation the mother overwhelmingly cared for Aman. Day by day she was primarily responsible for the child’s care and for the housework. As at the date of separation she was Aman’s primary care giver, and as a consequence, it is highly likely that he was more closely attached to her than any other person.
Between December 2001 and March 2004 the mother alone cared for Aman. During this period the father did not have any contact to his son. This strengthened the child’s attachment to his mother. Thus, more than most children in separated families, Aman is likely to derive his sense of security and stability from one parent, his mother. From her more than any other person it is highly likely he derives his sense of comfort. Separation from her for lengthy periods is likely to be distressing to him, and undermine his overall adjustment. Regular prolonged separation is also likely to be distressing, and similarly, undermine his overall adjustment. Aman copes with day care, which is for a full day, and contact for up to five hours at a time. Nonetheless, increasing the duration of contact must be carefully planned. Aman manages separation reasonably well although is occasionally upset when leaving for contact. His unhappiness is short lived and probably a function of age. As he realises contact with his father does not mean he cannot return to his mother, his unhappiness should abate. If the court proceeds too quickly, contact may not succeed in the long term. This is because Aman may be too stressed by longer separation from his primary care giver before he is emotionally and psychologically ready for it. This is a matter to which I attach considerable weight.
Aman, it is submitted by both parties, has been developing a happy relationship with his father, paternal grandmother, and paternal relatives. He is aware of his father’s role in his life, and has come to enjoy his time with his father, and paternal relatives. Merely because the child has coped with short periods of contact does not mean he would cope with the three-day/four day shared residence proposal the father submitted that the court would order. In my opinion the father’s proposed shared residence arrangement is inconsistent with a number of important factors in this matter. These include,
·That the child’s mother is his primary care giver.
·That the father has never had the child’s exclusive care.
·That the child has never been away from his mother overnight.
·The father is unwilling to accept information from the mother concerning the child’s well being.
·The child is only four years old and cannot communicate on matters concerning his welfare on his parents’ behalf.
·The child does not have the personal maturity needed to understand why such dramatic changes have been imposed.
The main advantage of the father’s proposed shared residence outcome is that Aman would have more time with his father and paternal relatives. However, the disadvantages outweigh these advantages. The father was overtly hostile to the mother in the hearing and in the period following separation. He has virtually no respect for her obviously competent parenting. At the end of the hearing the father spoke over his lawyer, so that he could inform me, and the mother, that unless he achieved his desired outcome he would withhold a religious divorce. He explained he will forward any orders inconsistent with his application to Tehran for registration with the Revolutionary Court. The effect, he said, would be that the mother could never return to Iran as doing so would result in automatic loss of custody. Thus she is unlikely to see her family unless they can afford to visit her in Australia. The mother’s family are people of modest means, and regular travel to Australia is unlikely. Sadly, the father seemed to revel in the mother’s terrible dilemma. The father knows she is close to her family and misses them deeply. He knows and relishes in her social isolation in Australia. More than the awful things he said about the mother in this hearing, this simple vignette reveals how determined the father is to have his own way concerning the mother and their son.
This harsh, selfish, and unforgiving attitude towards the mother means that effective communication between the parties is almost impossible. Good communication requires civility, and a willingness to examine a situation from the other person’s perspective. Where one communicant believes that they are invariably right, and the other is always wrong, there is almost no hope for constructive negotiation and discussion.

I emphasise this point, because at only four years of age if shared residence is ordered, Aman needs his parents to be able to solve problems that will invariably arise concerning him. Inevitably, attitudes towards homework, routine, discipline, religion, sport, to name but a few, will require discussion and agreement. Children are not parcels to be passed between homes without any notion of continuity in their lives. Where parenting ideas clash, parents need to be able to negotiate any disagreement, and on important issues achieve an agreed outcome. Otherwise the child’s life is will be disorganised and is unlikely to provide a settled home life that children need in order to thrive.
In her affidavit, the mother gave evidence concerning statements Aman has made to her at the end of contact. These include:
Daddy said S and F are thieves. I asked Daddy why and he said when you were young they took you and helped your mum to get you away.
Speaking of other people,
Mummy, they are a thief.
The mother has heard Aman say to her friend, F,
Are you a thief?
He then said,
My daddy said you are a thief. When I was young you took me and helped my mum.
Aman also reported his father as saying,
Your mum has not anyone here. She left her own family members in Iran and came here. I have my mum and sister and other family members. If your mummy could not keep relationships with her own family members, and her parents, how will she be able to look after you properly, or have a good relationship with you?
I accept the mother’s evidence that these statements have been reported to her by Aman. I agree that it is highly likely that Aman has overheard his father saying these things, or that his father has said words to this effect directly to the child.
I accept the submission by the mother’s solicitor that this case is not one where effective shared residence could be ordered. The mother’s proposal generally strike a better balance between the child’s age, and stage of development, the fact that his mother is his primary care giver, the long period of time during which the father unfortunately had no contact, and the risk to the child that reintroducing contact too quickly whilst the father remains so hostile to the mother’s care of the child, may undermine the child’s relationship with his mother. During opening addresses I raised my concerns that the mother sought to delay longer weekends and school holiday contact until 2007 when Aman is in First Class. Usually by the time children start school, especially those who have attended day care, or pre-school, they can cope with two night weekends and half-holidays away from their primary care giver. The mother explained that Aman has never been away overnight from her. At night-time Aman still comes looking for her, and before contact starts is anxious about leaving her. Presently, the father and his mother experience difficulty in having Aman eat a proper meal during contact. For shorter periods this of no real consequence. However, the longer the contact period the less satisfactory this situation is.
However, the greatest risk to Aman of longer contact is that this materially increases the effect upon him of the father’s unpleasant statements about the mother. When questioned about this issue the father said Aman has the right to know the truth. The father’s truth is a one-sided account of marital discord, which emphasises the father’s blamelessness, and criticises the mother. Even if his criticisms of her were fair, which generally they are not, the father should not discuss these issues with his four-year-old son. Unfazed by critical comment during cross-examination, the father gave no indication that he would desist. I am satisfied that this conduct is likely to continue and that increasingly it has the potential to destabilise Aman’s relationship with his mother.
How sad it is that probably the only person the child hears say unpleasant things about his mother is his father. His parents are the people who matter most to him. The father must rethink his approach and put his grievances behind. As the mother is a most significant person in Aman’s life, this risk must be minimised. As Aman gets older he will have better notions of the difference between right and wrong. As he matures he will be better able to discern truth from fiction. With a stronger sense of his mother’s values, he will be better equipped to deal with his father’s misinformation. Hence his relationship with his mother should be strong enough to resist his father’s complaints about her. Discerning when Aman will be able to deal with his father’s complaints is quite difficult. It seems to me that once children start school they have an independent touchstone which distinguishes right and wrong. Children’s socialisation skills increase dramatically once they start school. By the time Aman reaches term four in kindergarten, longer periods of contact will commence and gradually increase by reference to the child’s age and maturity.

Culture and religion are often intrinsically linked, as they are in this case. Fortunately, these parties share a similar culture, and the same religion. Both parties strongly adhere to many aspects of Iranian culture. Their first language is Farsi. They communicate with Aman, and at home, predominantly in Farsi. The father’s mother ensures that Aman has access to children’s books written in Farsi. In both homes Aman enjoys Persian food. Both parties adhere to Sufism. They are devout Muslims, and attend mosque, and pay attention to important religious celebrations. Irrespective of which outcome I order, this child will have a strong sense of identity with his Iranian culture, and Islam. Both parents are keen to ensure he enjoys the benefits of Australian society. Irrespective of which outcome I order, Aman will benefit by having the best of both cultures.
To an extent, cultural beliefs appear to have strongly influenced the father’s approach to marriage, separation and these proceedings. For example, he chose to return to Iran in order to find a wife. The parties joined in an arranged marriage. They were married in a religious ceremony, in accordance with the rights of Islam. In Australia, both have strived to maintain their Iranian culture and adhere to Islam. They structure their family life in accordance with Iranian culture and Islamic principles. At separation the father returned to Tehran in order to invoke the jurisdiction of the Iranian Courts. As I understand his evidence, the Revolutionary Court orders outcomes in accordance with their cultural view of Islam. Parents’ beliefs and value systems are important in any parenting case. However parents’ beliefs do not over-ride my statutory obligation to promote the child’s best interests. Where there is a conflict between a parents’ beliefs, including their cultural and religious beliefs, and what I consider objectively the law says is in the child’s best interests, I must make an order that delivers the child’s best interests. Even if it is inconsistent with a party’s religious or cultural beliefs. Thus, notwithstanding the orders made in Iran, Aman’s best interests demand a different outcome. In fairness to the Revolutionary Court, they heard only one side of the case.
Finally, I will address family violence during the marriage. In her affidavit the mother gives evidence concerning a number of instances when she was pushed and shoved by the father. On one occasion he banged her head on the wall. The father denied the mother’s allegations. The issue with respect to both parties was not explored in any detail. This is probably because both parties accept that so long after separation these pre-separation occurrences should not drive the outcome of this case. Recently, the parties have been able to spend time together settling Aman into contact with his father. The mother makes no allegations that the father mistreated her in any way during those contact periods. Shortly before the hearing, the mother says that they were driving together in a car and had a civilised conversation.

I doubt the mother would have been alone in the car with the father and Aman if she believed that there was any risk that the father would physically mistreat her. Whatever the situation may have been during the marriage, I am satisfied that there is no continuing risk to the mother of family violence from the father. At least in this respect both parties have put those issues behind them.
As best I can I have made orders that address the child’s long-term interests. I have tried to make final orders which mean the parties can avoid future litigation. They have been through a terrible time since separation. And both, hopefully, will feel relieved that at least this case is over.

Structure of the orders

The orders provide a graduated program for the father’s contact. Initially for contact each week on Saturdays from 9 until 5, and on Mondays from 12 until 4 on a continuing pattern
By August 2005 contact will increase so that the Saturday contact will continue until 5 pm on Sundays. By then Aman will be ready to regularly spend nights away from his mother. I am satisfied that the father is more than able to take care of Aman during such a period.
The mother opposed longer contact weekends until the beginning of 2007. However, I think that is too long to wait, and will order that by term 4 of 2006 contact shall start after school Friday
The father will be able to collect Aman from school. This will give him the chance to meet some of Aman’s school friends, and more importantly gives Aman the chance to introduce his father to his friends. If the father is working on occasions there is no reason why the father’s mother could not collect Aman from school.
When school resumes in 2007 the father’s weekend contact will again extend. From that point on weekends will start from after school Friday and continue until the start of school, Monday. This gives the father an even greater opportunity to become involved in aspects of Aman’s schooling.
By Christmas 2006 Aman will be ready to have a one-week block with his father. I have started that week at 4 pm on Christmas Day. Although Christmas Day as a religious festival of no moment to these parties, it is a day of general rejoicing in Australian society. This will give the father and his family the chance to have a party with the child, even if it does not have the religious significance that it carries for others.
From that point on the father will have one half of each school holiday with his son. I have made provision for contact on special Islamic occasions. Each year during Noruz, the father will have contact at a time agreed between the parties. Ramadan is a particularly important time in Islam. It is important that during Ramadan fathers and sons have time together. During Ramadan each Wednesday from half an hour before sundown the father will have contact with the child. This order was not sought by either party, but accords with my understanding that it is appropriate for Aman and his father to have special time together during Ramadan.
There are machinery orders, which provide definitions for school holidays, and otherwise facilitate the child’s movement between his parent’s homes. Consistent with my intention to develop contact in accordance with Aman getting older and more able to cope with longer periods of contact, provision is made for extra contact when contact falls adjacent to a public holiday.
I suspend contact on the weekend from 5 pm if ever contact falls on Mother’s Day. My intention is that the child will have contact on Father’s Day and with the mother on Mother’s Day.
Although the parties’ communication is poor I have made an order that the parties have joint responsibility for making decisions about the child’s long-term care, welfare, and development. If they are unable to reach agreement on important issues, the parties should consider attending counselling. When making these decisions the father needs to remember that Aman primarily resides with his mother. He should carefully consider her recommendations concerning important issues about their son.
I have restrained the father from speaking in a negative, offensive, or unpleasant fashion about the mother, her friends, or family, in Aman’s hearing. The father can hold whatever opinions he wishes of the mother. His challenge is to maintain his own counsel and not communicate those harsher attitudes to the child. Nor can he discuss any proceedings with Aman, and he must ensure that if any other person does so, that he stops them.
Finally, the orders provide a series of injunctions that restrain either party from removing Aman from the Commonwealth of Australia. The child will be placed on the PACE Alert System at all points of arrival and departure in the Commonwealth of Australia. The practical effect of this is that if either party attempts to remove the child from Australia, then he will be stopped by Department of Immigration by virtue of a computer alert that this child is the subject of a Court order, and not to be removed. This is an order for Aman’s protection. I do not intend to order that Aman can never visit Iran. But before he does so the parties themselves must either reach an agreement and vary my orders or alternatively, obtain the permission of a court. Already we have seen the difficulties that can be caused when two countries that are not co-signatories to the United Nations Convention on the Civil Aspects of International Child Abduction, attempt to deal with orders to deal with the child. Before Aman could depart Australia the court would need to be satisfied that his return to Australia was assured, unless the parties agreed that he would remain in Iran permanently.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S. Mashman

Date: 31 May 2005