ABOOD & KHOURI - [2010] FMCAfam 900

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ABOOD & KHOURI

[2010] FMCAfam 900

FAMILY LAW – Parenting – three young children of the marriage have not spent any time with the husband for four years and currently refusing to spend any time with him including supervised time – wife makes serious allegations of domestic violence – unacceptable risk not found to the Briginshaw standard – husband alleges wife has alienated children from him – orders made for intensive therapeutic intervention.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

M and M (1998) FLC 91-979
Goode & Goode (2006) FLC 93-286
Bookhurst & Bookhurst [2010] FamCAFC 26
Moszkowski & Moskowszki [2009] FamCAFC 118

Applicant:

MR ABOOD

Respondent:

MS KHOURI

File Number:

MLC 5537 of 2009

Judgment of:

Bender FM

Hearing dates:

12, 13 & 19 August 2010

Date of Last Submission:

19 August 2010

Delivered at:

Melbourne

Delivered on:

9 December 2010

REPRESENTATION

Counsel for the Applicant:

Mr Marchetti

Solicitors for the Applicant:

Lampe Family Lawyers

Counsel for the Respondent:

Ms Sleeth

Solicitors for the Respondent:

Pelham Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Eidelson

Solicitors for the Independent Children’s Lawyer:

David Stagg Tonkin & Co

ORDERS

Until further order the wife have sole parental responsibility for the children [X] born [in] 2003 (“[X]”), [Y] born [in] 2004 (“[Y]”) and [Z] born [in] 2006 (“[Z]”).
Until further order [X], [Y] and [Z] live with the wife.
The parties, [X], [Y] and [Z] shall:
(a)forthwith attend upon Centrecare Counselling Agency (“Centrecare”) or Centrecare’s nominee for the purpose of the family receiving intensive therapeutic intervention so as to attempt to re-establish a positive relationship between [X], [Y] and [Z] and their father; and
(b)continue to attend Centrecare or Centrecare’s nominee at such times and for such regularity as recommended by the therapist conducting the counselling pursuant to order 3(a) herein (“the therapist”) and comply with any directions as to how the therapeutic sessions are to be conducted, including ensuring [X], [Y] and [Z] partake in such therapy individually or together with the husband.
For the purposes of the therapy referred to in order 3 herein, the Independent Children’s Lawyer shall forthwith provide to the

Co-Ordinator of Centrecare the following:
(a)a copy of these orders;
(b)a copy of the report of Dr O dated 1 December 2009; and
(c)a copy of the Reasons for Judgment delivered on 9 December 2010.
[X], [Y] and [Z] shall spend time with the father at the Children’s Contact Service [B] (“[B]”), upon the written recommendation of the therapist provided to the parties and the Independent Children’s Lawyer, for up to two hours each fortnight at times nominated by the Manager of the Contact Service with such supervised time to continue for a period of not less than five months.
For the purposes of order 5 herein, both parties shall do all things necessary to forthwith complete all application and intake processes required by [B] to enable supervised time between the husband and [X], [Y] and [Z] to commence as soon as practicable after the written recommendation of the therapist for such supervised time is received by the parties and the Independent Children’s Lawyer.
In the event either party fails to comply with any of these orders or upon the completion of therapeutic counselling and/or when the husband and [X], [Y] and [Z] have had four months of supervised time at [B], the parties have liberty to apply to have the matter listed for mention before Federal Magistrate Bender for further direction as to ongoing hearing of the matter.
In the event the matter is re-listed for mention before Federal Magistrate Bender pursuant to order 7 herein on the basis that the husband and [X], [Y] and [Z] have had four months of supervised time at [B], the Independent Children’s Lawyer shall do all things necessary to ensure that a Report as to the progress of supervised time is obtained from [B] prior to the listing of the matter.
Whilst the matter shall be removed from the list of cases requiring determination while therapeutic counselling and supervised time is being undertaken, the matter has not finalised and the order for the appointment of the Independent Children’s Lawyer remains in full force and effect.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 5537 of 2009

MR ABOOD

Applicant

And

MS KHOURI

Respondent

REASONS FOR JUDGMENT

Introduction

This sad and difficult matter relates to the parties’ three children [X] born [in] 2003 (“[X]”), [Y] born [in] 2004 (“[Y]”) and [Z] born [in] 2006 (“[Z]”) and what, if any, time they should spend with their father.
The wife alleges that for the entirety of their marriage of four and a half years the husband was violent towards her, her eldest son [W] born [in] 2000 (“[W]”) and the parties’ three children. It is her contention that this abuse continues to impact on her and the children, especially [W] and [X], to this day. In these circumstances and in the additional circumstance that the husband has, to all extents and purposes, not seen the children since separation in December 2006 and has provided little to no financial or emotional support to the wife and the children, it is the wife’s contention that there should be no contact between the children and the husband.
The husband denies absolutely that there were any instances of violence perpetrated by him against the wife and the children. Whilst conceding that he currently has no relationship with his children, it is his allegation that this is as a direct result of the wife alienating the children from him. He seeks the opportunity to redevelop a relationship with his children.
The Independent Children’s Lawyer supports the children having a relationship with their father and proposes orders which involve the parties and the children engaging in intensive therapeutic counselling with Centrecare in the hope that such intervention will enable the children and their father to reconnect.
The husband agrees with the Independent Children’s Lawyer’s proposal and indicates a willingness to engage in whatever interventions will enable him to reconnect with his children. Ultimately he seeks arrangements whereby [X], [Y] and [Z] live with the wife and spend alternate weekends, half holidays and special days with him.

Background

The husband was born [in] 1976 in Pakistan and is thus 34 years of age. He came to Australia in 1996 and has been granted permanent residency. He is currently living in [suburb omitted] in New South Wales and is working part time as a [omitted]. He has not re-partnered.
The wife was born [in] 1979 in [omitted] in Pakistan. She is 31 years of age. She emigrated to Australia in 1987 and is an Australian citizen. She is engaged in home duties and has not re-partnered.
The wife was previously married and has a son from that relationship, [W] born [in] 2000. The wife’s first husband was killed in a motor vehicle accident in August 2000.
The parties were married [in] 2002 and separated on 15 December 2006 when the husband left the former matrimonial home upon being asked to do so by the wife.
The wife alleges the husband committed repeated and severe acts of family violence towards her and the children including hitting, kicking, slapping, punching, spitting, throwing objects, imprisonment, sexual assault and rape of herself, verbal abuse, treats to kill and sexual abuse of [X].
The husband vehemently denies the wife’s allegations that he was ever abusive or violent towards the wife and the children.
The wife also alleges that, prior to coming to Australia, the husband was married in Pakistan and has a daughter from that relationship. She alleges the husband has not divorced his “other wife”.
The husband denies he was previously married or that he has any other children. He says his marriage to the wife in these proceedings is his only marriage.
Within days of separation the husband went to Sydney and on

18 January 2007 he returned to Pakistan. He remained in Pakistan for some 22 months, not returning to Australia until October 2008. The husband had no contact with the children during this period. Upon his return to Australia he chose to live in Sydney.
On 24 June 2009 the husband commenced these proceedings.
On 3 August 2009 orders were made appointing an Independent Children’s Lawyer and for the preparation of a Family Report.
The matter came back before the court on 28 October 2009. The wife failed to appear. The matter was re-listed on 17 November 2009 with a notation that if the wife failed to appear at court on the adjourned date, a warrant may issue.
On 17 November 2009, the wife appeared and orders were made confirming the listing of the matter for final hearing on

7 December 2009.
On 7 December 2009 the matter was unable to be heard on a final basis. Issues had arisen relating to difficulties the Report Writer, Dr O encountered in the preparation of the Family Report and in particular the wife’s refusal to allow Dr O to spend time independently with [X], [Y] and [Z]. Federal Magistrate Monahan heard submissions from all parties and ordered psychiatric assessments of both the husband and the wife, an updated Family Report with Dr O and for the husband to spend time with the children for two hours a fortnight, supervised at the husband’s expense by [H].
The wife, [X], [Y] and [Z] attended upon Dr O on 27 January 2010 pursuant to the orders made on 7 December 2009 to enable Dr O to independently assess the children. The wife did not facilitate the children being seen independently by Dr O and Dr O was unable to complete her assessment of the children.
After some difficulty in contacting the wife, [H] put in place arrangements for [X], [Y] and [Z] to spend time with their father.

On 9 April 2010 the husband flew from Sydney down to Melbourne to spend time with [X], [Y] and [Z]. Despite the contact supervisor’s best efforts, [X], [Y] and [Z] refused to see their father.
A further attempt was made for [X], [Y] and [Z] to spend time with their father with the assistance of [H]. The proposed visit was centred around a shopping expedition whereby the husband had agreed to purchase toys for the children. On 13 May 2010 the husband again flew to Melbourne from Sydney. Only [Y] agreed to accompany his father on that occasion.
Ms F, the contact supervisor assigned to this family, then left [H] and [H] were unable to provide an appropriate alternate supervisor. They ultimately withdrew their services.
Arrangements were then made for the husband to spend supervised time with [X], [Y] and [Z] utilising the services of [C] Children’s Contact Service. Three attempts were made for the children to spend time with their father on 17 June 2010, 25 June 2010 and 9 July 2010. Other than [Z] who spent three minutes in his father’s presence on 25 June 2010, the children refused to spend any time with their father.
On 2 August 2010 the [C] Children’s Contact Service withdrew their services from the family because of:
“the lack of progression and the children’s high level of ambivalence and distress.”[1]
[1] Report from Ms W, Family Program Manager, [C] Children’s Contact Service dated 6 August 2010.
Accordingly, other than the very brief time [Y] and [Z] spent with their father as set out previously, [X], [Y] and [Z] have not spent any time with their father in the last four years.

The proposals

At the conclusion of the evidence, the Independent Children’s Lawyer provided the court with a Minute of Proposed Minutes in the following terms:
1. That until further order the children
[X] born [in] 2003,
[Y] born [in] 2004, and
[Z] born [in] 2006
live with their Mother.
2.That until further order the said children spend time with and communicate with their Father as follows:-
a.the father, mother and the children attend upon Centrecare Counselling agency or their nominee for the purpose of the family receiving intensive therapeutic intervention so as to attempt to re establish a positive relationship between the said children and their father.
b.the children and the parties attend Centrecare or their nominee at such times and for such regularity as recommended by the therapist(s) conducting the par. 2(a) sessions and comply with any directions as to how the therapeutic sessions are to be conducted.
c.(i)at such time as is recommended by the therapist(s) the father spend time with the said children outside of the therapeutic environment and on such terms as is recommended by the said therapist(s), which shall be detailed to the parties in writing.
c.(ii)in relation to the arrangements for contact referred to in sub.par. c.(i), the said therapist shall consider options of supervised contact at the ‘Children’s Contact Service [B], or unsupervised contact.
d.(i)subject to anything recommended to the contrary by the therapeutic counselling referred to in par.2(a),(b) and (c) above, the father shall spend time with the said children on a supervised basis at the said Contact Service for two hours each fortnight, at times nominated by the manager of the Contact Service, commencing not before 3 months have elapsed after the commencement of the therapeutic process referred to in par 2(a).
(ii)thereafter there should be supervised contact for a

5 month period at the said Contact Service.
(iii)a report should be prepared by the said Contact Service in relation to the progress of contact by the children with their father, at the conclusion of that period, or at such other time as deemed appropriate by the manager of the said Contact Service.
3.Liberty to mention this matter before FM Bender for the further preparation of an updated family report by Dr O, and for further listing of these proceedings.
The husband joined with the Independent Children’s Lawyer in seeking orders in the terms as proposed by the Independent Children’s Lawyer.
The wife seeks orders that she have sole parental responsibility for [X], [Y] and [Z], for them to live with her and that there be no order for them to spend time with the husband.

The evidence

The husband

It was the husband’s evidence that he was at no time during the marriage violent to either the wife or any of the children, including the wife’s eldest son [W].
It was the husband’s evidence that other than when he was at work, he was home with the wife and the children and that he was an involved and caring father.
The husband conceded that he and the wife argued, but generally he was of the view that they had a good marriage.
It was his evidence that on the date of separation he had a

long-standing arrangement to go away with some fellow [co-workers] from the [workplace] where he was working. It was his evidence that he and the wife had an argument the night before he was due to leave and that she told him to move out of the matrimonial home, which is owned by her. It was his evidence that when he finished work on the Friday, he returned the parties’ motor vehicle to the wife and that she again repeated that she wanted him to leave the home permanently. It was his evidence that he did leave the home, but only because he was going away with work colleagues for the weekend and that it was his intention to return home at the end of the weekend away. It was the husband’s evidence that prior to returning home, he was contacted by the Police who advised they had been contacted by the wife who had made complaints of violence and that in the circumstances he should not return to the former matrimonial home.
It was the husband’s evidence that three or four days after this call, he went to stay with friends in Sydney and that two or three weeks later, on 18 January 2007, he returned to his parents’ home in Pakistan where he remained for some 22 months.
The husband was questioned at length as to why he remained in Pakistan for so long, particularly in circumstances where it was his evidence that
“his children are his life.”
It was the husband’s evidence that the wife spoke to him by telephone on several occasions and specifically asked him not to return to Australia. It was his evidence that she indicated to him that matters could be resolved between them but that he needed to stay away until things settled down.
It was the husband’s evidence that it was only when an Intervention Order that the wife had taken out against him came to his attention that he realised that there was no possibility for reconciliation and he then returned to Australia.
When asked why, upon his return to Australia, he chose to live in Sydney rather than Melbourne where his children live, the husband’s explanation was he wished to avoid conflict with the wife and that he had friends in Sydney.
The husband was questioned as to why, having returned to Australia in October 2008, he did not institute proceedings in relation to spending time with the children until June 2009. It was his evidence that upon his return to Australia he sought advice from Legal Aid in New South Wales, they in turn advised him that he needed to seek Legal Aid in Victoria, and that this all took a considerable period of time to be processed before he was granted aid to commence the proceedings.
Counsel for the Independent Children’s Lawyer challenged the husband’s evidence in relation to why he stayed in Pakistan for so long and the husband responded as follows:
“It is my mistake to stay longer. That’s it. She told me don’t come back. This is my mistake. I accept. Long time ago I accept.

I have no answer because this is my mistake, I should not believe her. I should come back straight away. This is my biggest mistake.”
The husband conceded that he does not have a relationship with the children and that in all probability it would only be [X] who would have any memory of him from when the parties co-habitated.
The husband was cross-examined as to why he thought the children had exhibited such high levels of ambivalence and distress about seeing him when they were at [C]. It was the husband’s evidence as follows:
“Because she’s brain-washing them against me. That’s why they don’t want to see me. She is keep brain-washing and scaring them, ‘You see him you happen this and that’. That’s why they are scared, because they don’t know me. Four years nearly they didn’t recognise me. My son didn’t recognise me, two of them, and [X], the daughter, she didn’t came and see me because she is scared if she see me she recognise me. That’s why she never sent [X] to see me. This is the answer.”
The husband was then questioned as to why [X] is currently seeing a counsellor and in particular the wife’s allegation that this is directly related to the violence [X] observed and was subject to at his hands. It was the husband’s response as follows:
“How [X] become a psychology problem, because of her (sic the wife). She made her psychological problem because she is putting hate against me, that’s why. That’s why I want to give them love. They have no stress in their lives. I don’t want them to think I am the enemy. They hate me. I don’t want hate in their life.”
It was the husband’s evidence that he is currently working part-time as a [omitted] and that he has been assessed to pay Child Support at the rate of $38.00 per fortnight. The husband offered no explanation as to why he had not been able to obtain full-time employment since his return to Australia.
It was the husband’s evidence that he has recently renewed his permanent residency visa and that such visa is for a five year duration. It was also the husband’s evidence that he has made application for citizenship and that he has been advised that there is a six to twelve month delay in the processing of such applications whilst the Department of Immigration makes all necessary enquiries. He denied that he had pursued a relationship with the wife solely for the purposes of obtaining Australian residency and citizenship.

The husband categorically denied that he had a wife and child in Pakistan. It was his evidence that his only marriage has been to the wife in these proceedings.

The wife

It was the wife’s evidence that she and the children had been subjected to continuous regular violence at the hands of the husband for the entirety of the four and a half years of the marriage.
The wife alleged that the husband hit, kicked, slapped, punched, spat on and threw objects at herself and the children, imprisoned the wife and the children for six weeks when they visited Pakistan to see the husband’s family, that she was the subject of ongoing sexual abuse and that all three children were conceived as a result of the husband raping her, that he verbally abused her and the children and threatened to kill.
In support of her Application the wife filed an affidavit from Dr S annexed to which was a Report dated 11 August 2010. Dr S is a psychologist and she is treating [X]. In that Report Dr S states that the wife advised her that the husband sexually abused [X] by watching her without her nappy on, rubbing her vagina and inserting his fingers into her vagina.
The affidavit of Dr S was filed on 11 August 2010, the day before proceedings commenced and it was the first time in these proceedings that the wife had made any allegations of sexual abuse of [X] by the husband.
The wife conceded that she made no complaints of abuse by the husband during the course of the marriage to her treating medical practitioners, the Police, welfare authorities, her family or friends.
The wife was cross-examined at length as to why she had made no such complaints during the course of the relationship.
It was the wife’s evidence that she was too embarrassed to tell anyone of the violence that was being perpetrated against herself and the children in her home.
She was cross-examined as to why she did not seek treatment for the alleged multiple bruises, black eyes, nose bleeds and other injuries she alleged were received by her and the children at the hands of the husband. It was her evidence that if her parents visited she would explain any such injury by saying that the children had tripped over and that she would treat the injuries herself. It was her evidence that she had bandages, medical antiseptic and healing powder which she kept in the house. It was her evidence that she kept such medication in the home because the husband would not allow her to take the children to hospital because he knew he would get into trouble.
It was her evidence that during the marriage the children were

home-schooled (which they continue to be), and that the husband otherwise isolated the family from any social interaction and as such, she and the children only had very limited contact with anyone outside the home.
In relation to the allegation that the husband had sexually abused [X], the wife was cross-examined as to why she had not detailed that allegation in her affidavit material when the proceedings first commenced given the seriousness of that allegation.
It was the wife’s evidence that she had made extensive complaints of these assaults to the Sexual Offences and Child Abuse Unit of Victoria Police, that a detailed investigation of these matters was still in train and that she had been requested by the Police not to disclose the allegations in her affidavit material whilst those investigations were still on foot.
When asked why she had not made complaint to the Police or to treating doctors of the abuse of [X] during the course of the marriage, it was the wife’s evidence as follows:
“As a mother, it's very difficult. It's such a sensitive - such a delicate issue, extremely embarrassing and difficult as a mother to talk about it to a stranger. It's very difficult. Very difficult. And woman, a mother saying that is really embarrassed saying that, ‘My husband does this to my daughter who is a little girl.’”
It was the wife’s evidence that the parties lived in a unit that is in her name (but held on trust for [W]) during the marriage. It was her evidence that her mother and father lived in a unit in the same block. She was questioned, in those circumstances, as to why she did not go to her parents for protection. The wife indicated that she raised the husband’s abuse with her father very early in her marriage and that her father had advised her that all marriages have some difficulties and it was her responsibility to try and make her marriage work. It was her evidence that she was too embarrassed to raise the issue again with her family until after the parties had separated.
It was the wife’s evidence that she believes that the husband was already married to his cousin, with whom he has a daughter, prior to him coming to Australia and marrying her. It was her evidence that she came to this knowledge as a result of seeing email exchanges between the husband and another woman, and that the husband’s mother had confirmed the existence of his first wife and child when she, [W], [X] and [Y] went to Pakistan in November 2005.
The wife was cross-examined as to why she remained in the marriage once this knowledge was confirmed to her, particularly in circumstances where it was her evidence that she did not believe in a bigamous marriage or the right of a husband to have more than one wife. It was her evidence that she was too scared to leave the relationship.
It was the wife’s evidence that whilst staying with the husband’s family in Pakistan for some eight weeks from November 2005, the husband’s family took her travel documents and then locked her and the children in a room for ten days without proper food, access to a bathroom or any proper toilet facilities. It was her evidence that it was only after [X] became desperately ill that the husband took [X] to hospital for treatment and allowed the wife and children out of the room.
It was the wife’s evidence that when they were in Pakistan the husband spent almost no time with her and the children and that he spent the majority of his time, she believed, with his first wife and daughter.
Again, when cross-examined as to why she remained with the husband, and in fact conceived and gave birth to the parties’ third child [Z] after the horrible treatment meted out to her and the children in Pakistan, it was her evidence again that she was too scared to leave the husband.
The wife was questioned about the difficulties that Dr O encountered in being able to complete a proper independent assessment of the children, and in particular her lack of cooperation in enabling the children to be seen on their own by Dr O. It was her evidence that the children did not want to leave her. She accused Dr O of being antagonistic towards her, and on the second visit of being unprofessional in that it was Dr O’s receptionist rather than Dr O herself who came to greet the children. She denied that she was unable to manage the children but said rather she was respecting their wishes.
The wife was questioned as to whether the children, given their very young age at the time of separation, have clear memories of the alleged violence perpetrated by their father. It was her evidence that [X] does and hence the necessity for her attendance upon Dr S. In relation to the younger children, it was the wife’s evidence that the children do have bad memories because the husband’s violence is still evident in the house as the holes in the wall put there by the husband remain there to this day, as well as the toys that he broke and the clothes that he ripped as they are contained in bags that are still in wardrobes in the house. It was her evidence that she could not afford to get the holes in the walls repaired and that she had retained the damaged toys and clothes at the request of the Police.
It was the wife’s evidence that up until shortly before the first interviews with Dr O, the children actually thought her father was their father and that they called him “Dad”. When asked to explain why that was so, it was her evidence that it was because the husband had done nothing to show the children that he was in fact their father. The wife went on to say:
“A woman abandoned and left with four young children, three being in nappies, taking care of them all by herself, abandoned by her husband, the husband went overseas to his initial wife and daughter, never sent any presents or gifts or cards or letters of any sort or even one phone call to ask how the children are, it's very difficult for a wife in this situation in such a position in my shoes to tell them, "Yes, you do have a father who has abandoned you, who does not wish to see you and you were only born as a result of sexual assault for the sake of securing his permanent residency, and that you have a father who don't wish to have any relationship with you. He's gone to his - to his other family overseas. A father who is not part of your life. He does not want to be a part of your life, who is not sending any money or supporting you financially to support you with your education, groceries, shelter, books, clothing, shoes. Is it appropriate for me to tell my children all this? The definition of a father is a father who provides for the children, a father who is there for his children, emotionally, physically, financially, socially, mentally, psychologically. But he has not done anything to even show that he is a genuine, loving father. He is capable. He has ample opportunity to work and to support us financially, yet he is not doing that. He has excellent health. He is young and fit enough to work, but he is not working. He has decided not to work through the tax system to avoid paying any child support to these children.”
The wife was cross-examined as to whether there would be any impact on the children growing up having no relationship with their father. It was the wife’s response that it would have no effect:
“because there's nothing that suggests that he has something to offer these children.”
The wife was then asked how the husband could show or demonstrate that he had something to offer the children. It was the wife’s evidence as follows:
“Well, firstly, he should start to financially support these children, financially help with their education, books, groceries, clothing, shoes and other daily necessities. And to then build a relationship with them. If he is willing to show that he is a genuine, loving, sincere father.”
The wife was asked how the husband could do that and her response was:
“Firstly, he has to start paying child support and secondly, he should build a relationship with them by sending them letters, cards or calling them and talking to them on a regular basis.”
Counsel for the Independent Children’s Lawyer challenged the wife as to this evidence and in particular asked her to confirm her position that whilst she said that it was not in the best interests of the children to see their father, that if he started to pay Child Support at an appropriate level, then she would consider them spending some time with him. The wife confirmed that that was her position.
However the wife further clarified her position that any time that the children spend with their father must be supervised and that if orders were made for unsupervised time she would not comply with those orders.
It was the wife’s evidence that the children, and in particular [X], have independent memories of the abuse perpetrated by their father and denied that it was she who had continuously reinforced these allegations in the minds of the children since separation. She conceded however that as the children had been interviewed by the Police and had been present when she had been interviewed by the Police and Violence Support Workers, the children were constantly reminded of their lives with their father prior to separation.

Ms F

Ms F was the Access Supervisor with the [H] Service who attempted to supervise the children spending time with the husband.
Ms F prepared a document headed “Court Report” dated June 2010 and also gave oral evidence at the final hearing of the matter.
Ms F gave evidence of initial difficulty in contacting the wife, with the wife not answering or responding to her calls and messages. It was her evidence that when she did meet with the wife and the children to explain the process and her role, the children were resistant to seeing their father. [X] told her that she would not go and that no one could make her do so.
It was Ms F’s evidence that on the first occasion that arrangements had been made for supervised time, she went to the wife’s home to collect the children and [X] refused to go with her. When it was agreed that only the two younger boys would go, [X] grabbed their arms and said that they weren’t to go either. It was Ms F’s evidence that as the children had become distressed, she did not force the issue but instead suggested that matters be put on hold for four or five weeks, during which time the husband could perhaps send the children cards, letters and gifts to show his positive intent towards them.
It was Ms F’s evidence that the husband agreed to this. She indicated that this was not usual – i.e. a suggestion from her for the husband to send cards, letters and gifts, but that as the children were so resistant to seeing him she thought that this might be an ice-breaker.
It was her evidence that on 13 May 2010, which was the date set for the second attempt at supervised time, Ms F attended at the wife’s home to collect the children. As she arrived the wife was pulling out of her driveway with the children. It was her evidence that she followed the wife in her car to a doctor’s surgery. She then spoke to the wife who indicated that [X] would not be attending and again it was suggested that the two boys still go. Initially [Y] and [Z] moved to go with Ms F to spend time with their father but the wife intervened and [Z] then refused to go.
It was Ms F’s evidence that [Y] went with her and the husband to Target where the husband bought an expensive electric car and some other gifts for [Y]. She described very limited interaction between the husband and [Y] and some level of discomfort on [Y]’s behalf in the presence of his father.
It was Ms F’s evidence that after that visit she left [H] and it is her understanding that a suitable replacement was not able to be found to supervise the Abood children and that [H] withdrew their services.
When cross-examined, Ms F was asked whether her overall impression in relation to the wife was one of her being an extremely encouraging parent trying to do her very best to get the children to spend time with their father or, at the other end of the spectrum, one who didn’t want the contact to occur and was dragging her nails in the ground to resist this prospect. Ms F indicated that her impression of the wife was one much closer to the second description than the first.
It was also Ms F’s evidence that [X] was very over-protective of her brothers and seemed to reflect the concerns in relation to the husband that had been put to her by the wife. It was Ms F’s observation that [X] seemed to have a parenting role in relation to the younger boys and it was her understanding that culturally [X] would be expected to assist in raising the boys in that she would be dressing them, feeding them, bathing them etc. This was confirmed by the wife in her evidence.
It was Ms F’s evidence that she formed the view that if [X] had agreed to spend time with the husband, the boys would have followed her lead. Again, this was confirmed by the wife in her evidence.

Dr O

Dr O is a Consultant Forensic Psychologist and a Regulation 7 Family Consultant. She prepared a Family Report in this matter dated

1 December 2009 and also gave oral evidence at the final hearing of the matter.
Dr O acknowledged the limitations of her Report and evidence, arising from her inability to independently observe the children or have discussion with them.
In paragraph 62 of her Report, Dr O made the following observations:
62.Ms Khouri maintains that the children having contact with Mr Abood will expose them to an “unacceptable risk of harm and serious physical and psychological harm”. There is no doubt that spending time with Mr Abood will expose the children to psychological harm, not necessarily however because of Mr Abood. Due to manner in which Mr Abood has been and is portrayed to the children, and the fear instilled in them by Ms Khouri, it would be inconceivable that the children would embrace seeing Mr Abood. It would be highly likely that they will approach any pending contact with fear and trepidation, which would be reinforced by

Ms Khouri. Unfortunately, such an approach renders it highly unlikely that assessment will be able to determine with any accuracy the children’s true feelings or wishes.
In relation to the parties and their evidence, Dr O made the following observations at paragraphs 68 and 69 of her Report:
68.It is impossible to discern the truthfulness of either party’s account. In all likelihood there are elements of truth in both parties’ accounts. Ms Khouri at this time does not have the capacity to proactively facilitate Mr Abood’s contact with the children.
69.On the balance of evidence in background material there would appear a stronger case for believing Ms Khouri’s accounts of the relationship than Mr Abood’s limited explanation and outright denial. Having said that; on presentation and cooperation at interview, Ms Khouri does not present in a manner that one would most usually expect a victim of severe domestic violence. She presents as assertive, directive and controlling and not prepared to negotiate or be influenced by others. Most usually the pervasive nature of domestic violence not only impairs the victims function within intimate relationships but more pervasively in her sense of worth and everyday function.
Dr O was asked in cross-examination why in her Report she had said that there was no doubt that spending time with Mr Abood would expose the children to psychological harm, not necessarily because of Mr Abood. It was Dr O’s evidence as follows:
“My assumption was that the manner in which she (sic the wife) conducted herself in front of the children with me and my attempts to see the children alone is extremely damaging to the children. And so one could only conclude that any attempts for the children to spend time with their father would be met with exactly the same kind of behaviour, if not more overt than it was in my presence. And that is absolutely is harmful to the children.”
Dr O was asked whether the memories that [X] is said to have of the violence perpetrated by her father would be her own independent memories given that she was 2 years and 10 months of age when the parties separated. It was Dr O’s evidence that whilst that was possible, it was more likely that those memories had been reinforced by others since separation, especially in circumstances where the wife’s evidence is that there are constant reminders of the alleged violence around [X] at all times.
It was Dr O’s evidence that any recollection that [X] has of her father being violent is, in all probability, a result of the wife’s reinforcement of that view of the husband, rather than being an independently formed memory given [X]’s age.
Dr O was specifically asked whether in her opinion the children were acting upon the values and beliefs of their mother, which have nothing to do with their own, and could they in those circumstances be fairly described as being alienated from their father. Dr O’s evidence was:
“I think it's relatively obvious, since separation, that a very negative view and a high degree of alienation has occurred and continues to occur.”
Dr O was advised that [X] was now being seen by Dr S for symptoms of anxiety and panic disorder, allegedly arising from her reaction to the extreme disharmony and violence perpetrated by the husband which she finds “terrifying”.

Whilst Dr O in no way challenged the diagnosis that [X] was suffering from anxiety and panic disorders, she was concerned that Dr S, only having been given the wife’s version of [X]’s history, was not in a position to fully explore all the possible causes for [X]’s distress which could include not only the potential exposure to violence but also the wife’s alienation of [X] from having any relationship with her father as well as the possibility that [X] is suffering a sense of abandonment as a result of her father walking out of her life and she not seeing him for four years.
Dr O was then questioned as to the efficacy of an intensive therapeutic intervention for this family as being a possible way forward that would enable the children to have an ongoing relationship with their father. Whilst having some reservations about the efficacy of such intervention, particularly in the context of the wife’s strongly held views that the children were at risk of physical and psychological harm if they were to spend time with their father, Dr O supported such interventions as:
“the last opportunity”
for the children to be given the chance to have that relationship without more dramatic intervention.
Dr O emphasised the importance of that intervention being conducted in such a way that the therapist dealing with the children and with the parties accepted that there was a myriad of possible causes for the current level of distress that the children, and in particular [X], exhibited when faced with the possibility of spending time with their father. To this end Dr O supported intervention from a body like Centrecare rather than continuing treatment with Dr S.
Dr O then suggested that it would be appropriate for her to further assess this family with a view to recommending ways forward, including the possibility of there being a change of residence to enable the children to be, to use her words:
“de-programmed.”

Dr K

Dr K is a Forensic Psychiatrist who conducted a psychiatric assessment of both the parties and whose Reports were before the court by way of affidavits sworn on 22 June 2010 and filed on 24 June 2010 (in relation to the husband) and sworn on 10 August 2010 and filed on 13 August 2010 (in relation to the wife).
Neither party nor the Independent Children’s Lawyer sought to

cross-examine Dr K.
Briefly, in relation to the wife, Dr K’s Report concluded in paragraph 7 on page 6 as follows:
“In summary, it is hard to find two more diametrically opposed versions of a marriage situation than with this couple. When seen individually both present as reasonable mature people…
From the psychiatric viewpoint alone she does not require treatment as she merely has some mild situational anxiety. There are no other indications of any psychiatric ill health.”
In relation to the husband, Dr K’s Report concluded in paragraphs 6 and 8 on page 6 as follows:
“From the psychiatric viewpoint I can find no reason as to why he should not have unsupervised access. He struck me as someone of conscientious temperament, who was deeply involved in his religion, and who showed no evidence of aggressive tendency in the interview situation…
From the psychiatric viewpoint he does not require, in my opinion, treatment except to have perhaps some supportive measures from a local doctor with some simple medication from time to time as may be needed.”

The Law

Can the court make orders in the terms proposed by the Independent Children’s Lawyer?

When Counsel for the Independent Children’s Lawyer put forward the proposed orders of the Independent Children’s Lawyer, I questioned my capacity to make such orders in light of recent Full Court decisions that considered whether the court should or could make orders which place the responsibility for determining the arrangements for children in the hands of a professional person rather than that decision being made by the court.
In Moszkowski & Moskowszki [2010] FamCAFC 118, the trial Family Law Magistrate of Western Australia made an interlocutory parenting order which in part provided:
“6. Upon the Respondent's treating psychiatrist, Dr [W], providing an up to date psychiatric assessment based on recent interviews with the Respondent, confirming that the Respondent is well enough to resume shared care of the said child, and outlining in his report a recommended treatment programme then UNTIL FURTHER ORDER of the court the said child reside with each of the parents in a shared care arrangement…
In paragraphs 22 and 23 of her judgment Bryant CJ (with whom Thackray and Crisford JJ concurred) set out the grounds of appeal against the order of the Magistrate:
22.The grounds of appeal to which I have referred are Grounds 4 and 5.3. Ground 4 says that:
The learned Magistrate erred in law in making shared care arrangement conditional upon, or subject to, the provision of an up to date psychiatric assessment by the appellant's treating psychiatrist Dr [W], when this was in effect an abdication by the learned Magistrate of her task which was to make a decision on the applications of the appellant and the respondent.
23. Ground 5.3 says that:
5. The learned Magistrate erred in law in making the shared care arrangement conditional upon, or subject to, Dr [W] providing up to date psychiatric assessment based on recent interviews with the appellant, confirming that the appellant is well enough to resume shared care of [L], and outlining in his report a recommended treatment program when –
…
5.3 There was no evidence that Dr [W] was qualified to provide the court with his opinion that the appellant is well enough to share the care of [L].
Her Honour held in paragraphs 25 to 27 as follows:
25.The problem with the Orders that her Honour ultimately made was that the psychiatrist was effectively being asked to decide extrinsically whether the mother was well enough to have the child unsupervised on the particular basis that her Honour ordered, that is, a specific arrangement for shared care. In my view, that was not an appropriate order to make and not an appropriate task to delegate to a psychiatrist.
26.It was quite open to her Honour to seek to have the advice of the psychiatrist as to the mother's health, potentially in relation to whether or not supervision was still necessary, and potentially in relation to the kind of time that the mother might spend with the child. However, having obtained that evidence, the ultimate decision as to what was in the best interests of the child was for her Honour to decide and not one to be abrogated to a psychiatrist. The primary duty of experts in giving opinion evidence is to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusion (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 at 59)
27.In my view, the correct course would have been for her Honour to make clear what she thought might happen, to seek further evidence from the psychiatrist following an assessment, and then to consider what orders should be made, having regard to the relevant matters in s 60CC, and why she thought in light of the evidence she had, including the psychiatrist's evidence, it was appropriate to make a particular order.
In the Full Court decision of Bookhurst & Bookhurst [2010] FamCAFC 26, the trial judge made orders for the children of the marriage to spend supervised overnight time with their father, with a provision for such time to become unsupervised upon the father providing the mother with a report from his therapist outlining the nature and extent of the therapeutic treatment provided to the father and the therapist’s unqualified opinion that the father did not, nor would it be reasonably foreseeable that he would, pose a risk to the children.
On appeal it was submitted on behalf of the father that:
“the prospect of such an order was not discussed with the father, committed the father to psychiatric treatment and would require an “unqualified” view and that it was doubtful that a treating practitioner could give such an opinion. The consequence of this… would be that the order could never be fulfilled and thus the father would be unable to have unsupervised overnight contact with the children.”[2]
[2] Bookhurst & Bookhurst [2010] FamCAFC 26, paragraph 51
The father, on appeal, was given leave to adduce further evidence from Dr [W], psychiatrist. It was Dr [W]’s evidence that the ethical treating psychologist should not be willing to offer an unqualified opinion which is, in effect, an absolute guarantee.
Their Honours held in paragraphs 61 to 64 as follows:
61.We are of the view that the evidence of Dr W should be admitted to allow a proper consideration of the argument in relation to order 5. The admission of this evidence falls within the category described in CDJ v VAJ, particularly by reference to paragraphs 109 and 111.
62.If compliance with the order is impossible by the report of any Australian psychiatrist bound by the ethical considerations as described by Dr W (a consideration of course unknown to the trial judge) then such an order cannot be allowed to stand.
63.In the circumstances of this case, in view of the considerable limitation placed on the father’s time with the children because of the order for supervision, the limited opportunity for the father or his lawyers to make submissions in relation to the ideas raised by the trial judge may have lead in itself to a consideration of whether such order should be set aside. The order as ultimately made, order 5(d), was far more demanding than as discussed with counsel.
64.With respect to the question of natural justice, his Honour raised the possibility of requiring the father to provide some assurance to the mother with counsel during submissions on the final day of hearing. However, at no time were the specific terms of order 5 contemplated and the father was not afforded an opportunity to provide evidence in relation to this requirement.
In this matter, the orders proposed by the Independent Children’s Lawyer include the following:
c.(ii)in relation to the arrangements for contact referred to in sub.par. c.(i), the said therapist shall consider options of supervised contact at the ‘Children’s Contact Service [B]’, or unsupervised contact.
d.(i)subject to anything recommended to the contrary by the therapeutic counselling referred to in par.2(a),(b) and (c) above, the father shall spend time with the said children on a supervised basis at the said Contact Service for two hours each fortnight, at times nominated by the manager of the Contact Service, commencing not before 3 months have elapsed after the commencement of the therapeutic process referred to in par 2(a).
The orders proposed by the Independent Children’s Lawyer also provide:
3.Liberty to mention this matter before FM Bender for the further preparation of an updated family report by Dr O, and for further listing of these proceedings.
The wife in this matter has argued that there should be no time between [X], [Y] and [Z] and their father, and if there is to be such time, it should be supervised.
As well documented, the children have spent no time with their father for some four years. It is unknown at this time whether therapeutic intervention will afford the children any opportunity to develop a relationship with him.
In real terms the Independent Children’s Lawyer’s Proposal would have the therapist determining what, if any, time the children spend with their father outside a therapeutic setting, including whether such time is unsupervised.
Whilst there is no doubt the court has the power to make an order for a change to a child’s living arrangements, subject to compliance by the parties with directions of the court for attendance upon treaters, courses and the like or upon provision of proof of engagement in appropriate therapeutic interventions, such orders can not abrogate the decision making responsibility of the court to an external third party. Nor can such orders be made absent the party effected by such order being given an opportunity to challenge such order and place alternate evidence before the court.
In this case, to empower the therapist assisting the parties and the children to determine if the time the children spend with their father should be supervised or unsupervised as recommended in order 2(c)(ii) of the Independent Children’s Lawyer’s proposed orders would be an abrogation of the court’s decision making obligations and is not, in my view, an order appropriately made in this matter.

Best interests of the child

Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 61da of the Act makes reference to there being a presumption of equal shared parental responsibility when making parenting orders. Subsections 1 and 2 of that section provide as follows:
1. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
The wife’s allegations of the ongoing serious family violence perpetrated by the husband against herself and the children during the course of the marriage has been well set out in this judgment and my findings in that regard will be set out shortly.
Even absent such allegations, the husband has spent no time with the children for four years, and he and the wife have not communicated in that time.
Both parties’ evidence is that they don’t wish to have any ongoing interaction with the other and neither can foresee a time in the future where such communication would be possible.
In these circumstances it is not possible to envisage how these parties could interact in such a way that would enable them to make the kinds of decisions that joint parental responsibility would require.
In all these circumstances it seems appropriate for an order to be made that at this time the wife have sole parental responsibility for the children.
Section 65daa of the Act requires the court to consider a child spending equal time or significant and substantial time with each of their parents where an order has been made for joint parental responsibility.
The Full Court in Goode & Goode (2006) FLC 93-286 held that even in circumstances where no order is made for joint parental responsibility, the court must still consider whether orders for equal time or significant and substantial time are in the child’s best interests.
The wife currently seeks orders that the children spend no time with their father. The husband seeks orders that, in the long term, would have the children spending time with him on alternate weekends, half holidays and special occasions. Neither of these proposals fall within the definitions of equal time or significant and substantial time as set out under the provisions of section 65daa(3) of the Act.
In circumstances where the husband currently resides in Sydney and would appear to intend to continue to reside in Sydney, any orders for equal time or significant and substantial time, even if they were in the children’s best interests, would not be practical.
When determining what orders should be made in relation to children, the Act quite clearly sets out that those orders must be made in the best interests of the children. In order to determine what is in the children’s best interests, the court must consider the matters set out in sections 60cc(2) and (3) of the Act.
Each of the factors that are set out in subsections 2 and 3 of section 60cc of the Act, where relevant, must be considered and assessed in the context of each of the parties’ behaviours and proposals, and a decision made as to which of those proposals, or such other proposal as the court may determine, will be in the child’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:

Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

At this time, [X], [Y] and [Z] do not have any kind of relationship with their father. They have not spent time with him for four years, firstly because of the 22 months the husband was out of the country and, secondly upon his return, the wife has resisted all his efforts to try and re-establish a relationship with the children.
The issue for this court is whether such a relationship is possible and in the children’s best interests.
The children’s relationship with their mother is strong, secure and loving.

Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

It is the wife’s strongly held belief that [X], [Y] and [Z] will be at serious risk of physical and psychological harm if they were to spend any time with the husband.
It is her evidence that she and the children were subjected to ongoing, serious and continuous violence at the hands of the husband for the entirety of the marital relationship.
It is the wife’s evidence that the children, and in particular [X], have clear memories of the violence inflicted upon them by the husband during the course of the relationship and that this impacts on their wellbeing to this day.
It is the wife’s evidence that [X] is having flashbacks to these instances of violence to the extent that she has been diagnosed with anxiety and panic attacks, and is undergoing psychological counselling to help her deal with these issues.
The husband denies, point blank, that any such violence occurred and says that the wife’s allegations are a deliberate strategy by her to prevent him from having a relationship with his children.

During the entirety of the relationship, the wife did not report the husband’s alleged violence to the Police, welfare authorities, treating medical practitioners or her family, even in circumstances where her family were living in a unit in the same block of units where she and the children resided.
The wife’s explanation for her failure to report the husband’s violence is that she was too embarrassed to do so and that any attempts to make complaint were met by threats of violence from the husband, including one instance where he held a knife to her throat when she attempted to ring the Police.
It was the wife’s evidence that, upon separation, she did report the husband’s violence against her and the children to the appropriate authorities and that they continue to investigate her allegations to this day.
Allegations of abuse against a party to the marriage towards the children of the marriage are taken most seriously by this court. This court and the Family Court of Australia published Family Violence Best Practice Principles in 2009 and those principles inform the court as to the manner in which it is to deal with allegations of serious violence of the type deposed to by the wife in this matter.
The impact of violence upon parties and upon their children has been the subject of ongoing study, which has well documented the serious, long-term and insidious impact that domestic violence has on those who are its’ victims.
The High Court in M and M (1998) FLC 91-979 laid down the test to be applied by the court where there is an allegation of violence. The test in question is one of unacceptable risk, which is to be established to the Briginshaw standard, that is, is the evidence strong enough to substantiate the allegations of violence on the balance of probabilities.
The wife in this matter has the burden of proof in the context of establishing that the violence alleged by her occurred. As noted, she must establish that it occurred on the balance of probabilities to the Briginshaw standard. Quite simply this means that the seriousness of the allegations being made by her requires that such standard of proof be at the higher end of that balance of probability.
It was submitted on behalf of the Independent Children’s Lawyer, and was supported by Counsel for the husband, that the wife had failed to meet the requisite burden of proof to the standard required. It was submitted by the Independent Children’s Lawyer that it:
“beggared belief”
that the wife did not report the alleged serious and ongoing violence perpetrated against herself and her children to the appropriate authorities and to her family during the marriage, in circumstances where it was her evidence that neither her religion, her family nor her community would have required her to stay in such a marriage. It was also submitted that it made no sense that she never sought the sanctuary of her supportive family when they lived less than 50 metres away from her and the children.
It was Dr O’s evidence that she found the wife to be assertive, directive and controlling and that she did not present in a manner that one would usually see when dealing with a victim of severe domestic violence.
There is no corroborative evidence from family, friends, doctors or Police to substantiate the wife’s claims. The wife could have put her father on affidavit to depose to the conversation they allegedly had early in the marriage as to the husband’s violence but she did not do so.
Having considered the evidence of the parties, the complete lack of any corroborative evidence of the allegations of violence, the less than convincing explanations of the wife that as a loving mother she did not seek intervention to protect her children in circumstances where they were allegedly being placed at serious physical risk, including the risk of sexual abuse of [X], in circumstances where sanctuary with her parents was less than 50 metres away, where there is no evidence that she had anything other than a close relationship with her family and most particularly the wife’s evidence that if the husband commenced to pay proper Child Support then he could start seeing his children, I am not satisfied on the balance of probabilities that there is an unacceptable risk of these children being exposed to physical or psychological harm or family violence if they were to spend time with the husband.
I am concerned about the psychological harm that the children are currently being exposed to because of the wife’s ongoing exposure of the children to her very negative views of the husband and of her allegations of his behaviour during the relationship and because of their inability to have any relationship with their father.
Section 60cc(3) of the Act sets out the additional considerations to be taken into account and each will be considered in turn where relevant.

Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

These very young children are adamant they do not wish to spend any time with their father and have thus far resisted all efforts made to arrange such time commencing.
[X] in particular has expressed very strong views that she does not wish to see her father and has refused point blank to do so. She has also intervened to ensure that her younger brothers, who are very much influenced by her, do not spend any time with the husband.
I am satisfied that absent appropriate therapeutic intervention to assist these children to accept the possibility of a relationship with their father, they will continue to resist all efforts to facilitate that relationship.

Section 60cc 3(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child)

As noted earlier in this judgment, the children have a close and loving relationship with their mother.
At this point in time, the children have no relationship at all with their father.
Up until the commencement of these proceedings, the children were of the view that the maternal grandfather was in fact their father and it is apparent that the maternal family play an important role in these children’s lives.
The children have no knowledge of or relationship with any of their extended paternal family.

Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

In considering this factor, the court must also take into account sub-s.60cc(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)     has taken, or failed to take, the opportunity:
(i)     to participate in making decisions about major long term issues in relation to the child; and
(ii)     to spend time with the child; and
(iii)   to communicate with the child; and
(b)     has facilitated, or failed to facilitate, the other parent:
(i)     participating in making decisions about major long term issues in relation to the child; and
(ii)     spending time with the child; and
(iii)   communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The wife is strongly of the view that the children are at risk of physical and psychological harm if they were to have a relationship with the husband and she is vehemently opposed to any such relationship occurring.
I accept that the wife portrays the husband to the children as a violent, dangerous man who has abandoned them and who continues to provide no emotional or financial support to them.
During the course of these proceedings, the wife has deliberately undermined the Family Report and assessment process, and has only grudgingly complied with orders that were made for the children to spend supervised time with their father.
Through her Counsel, the wife resisted the orders proposed by the Independent Children’s Lawyer for therapeutic intervention, evidencing a distrust of Centrecare and preferring to continue any therapeutic interventions through Dr S.
The husband, whilst acknowledging he made a “big mistake” in staying in Pakistan for so long, blames the wife entirely for the lack of relationship he has with his children and accuses her of deliberately undermining his relationship with them. He showed little insight as to how his “disappearance” from the children’s lives at their very young ages for such a long period would have affected them.
Both parties agreed that they could not communicate with each other and had no desire to do so now or into the future.

Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

The husband lives in Sydney and in order to spend any time with the children will have to travel to Melbourne regularly.
When given an opportunity to spend supervised time with the children, the husband made the effort to come to Melbourne on each occasion and has persevered with his Application in the face of real ongoing difficulties.
Any orders for the husband to spend time with the children will need to take place in Melbourne and he will have to make decisions about his living circumstances in the future if he wishes to be able to be fully involved in his children’s lives.

Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

Again, the husband’s current residence in Sydney creates real practical difficulties in relation to him spending any meaningful time with the children in the short to medium term.
It is far too early to speculate whether there will be a time when the children will be able to travel to Sydney to spend time with the husband in the event that he continues to live there.
The husband’s current lack of full-time employment could also impact on his capacity to spend regular time with the children, particularly given the wife is currently dependent on social security for the support of herself and the children.

Section 60cc 3(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

There are concerns in relation to the capacity of both parents to provide for the emotional needs of their children.
The husband’s decision to absent himself from the country for nearly two years and, during that period, to make no contact whatsoever with his children could not be properly explained by him and reflects very poorly on him.
There is no doubt that this could be one of the factors that have contributed to the children’s reluctance to have a relationship with him.
Whilst the wife has more than adequately cared for the children since separation in the context of their physical and educational needs, her resistance to embracing the children having any form of a relationship with the husband and her ongoing and constant reinforcement of his inadequacies to them has and is causing the children ongoing emotional and psychological problems.
I accept that the wife does this in the context of a genuine belief that the husband can bring nothing positive to the children’s lives, but I have to harbour some doubt about whether that is related as much to the alleged violence as to her perception of him abandoning her and the children and failing to support them thereafter.
It can only be hoped that therapeutic intervention will assist both parents in accepting their obligations to properly parent their children.

Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

Both parties are of the Muslim faith.
The wife describes herself as a “modern Muslim” and accuses the husband of having a more extreme faith, as a result of which during the marriage he was intolerant of the children being exposed to anything other than his preferred lifestyle.
It was the wife’s evidence that during the marriage the husband isolated herself and the children from family and friends, would not allow the children to watch television and insisted upon them adhering to the strictures of his religion as he observed them.
The husband denied these behaviours and described himself as a devoted family man.

Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

Not relevant.

Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

I have already commented in this judgment on the inappropriateness of the husband’s decision to go to Pakistan and remain there for nearly two years after the parties separated.
His decision to live in Sydney rather than Melbourne upon his return to Australia is also somewhat confusing in the circumstances that his professed decision to return was to reengage with his children.
Similarly, I have expressed concerns about the wife’s failure to shield the children from her extreme negative views of the husband and her failure to realise the impact of such behaviour on them.

Section 60cc 3(j) any family violence involving the child or a member of the child’s family

Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person

The spectre of family violence permeates the entirety of this matter and has fully been explored previously in this judgment. It is not my intention to revisit it under this heading, save to acknowledge the seriousness of the allegations made by the wife against the husband and his denial of same.

Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

It is not possible at this time to make an order that will finalise matters for this family.
The level of estrangement of these children from their father and the seriousness of the issues for these children and these parties are such that it is very much a case where very small steps are going to have to be taken.
The proposal of the Independent Children’s Lawyer, as supported by the husband, has at its’ central tenant the expectation that the matter will have to return to the court, whether therapeutic intervention is successful or not.
I accept that it is in the best interests of the children that at this point in time the only orders available to this court are ones that will require the matter to return for further determination, unless therapeutic intervention is such that the parties are able to find a way forward by agreement between themselves.

Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant

It is of concern that the wife was resistant to the concept of therapeutic intervention to assist the children in repairing their relationship with their father.
It was of further concern that she was not open to independent assessment of the children by the Family Report Writer to enable the court to have all relevant information before it.
It was the wife’s position that the children’s wishes should prevail in relation to what relationship, if any, they have with their father but she was unable to comprehend that their wishes in that regard were, in all probability, as a direct result of them mirroring her concerns and allegations.
Dr O, in her evidence, expressed some level of pessimism about the efficacy of therapeutic intervention in this case, but was of the view that such an intervention was the last opportunity for these children to be able to have a relationship with their father without the court having to consider very dramatic interventions, such as the children being taken from the wife’s care and placed in the care of the husband.
It can only be hoped that the wife will recognise that any orders made by this court are based on of what is in the children’s best interests and that this court would not make orders that would knowingly place the children at risk of harm.

Conclusion

At the centre of this case are three very young children whose lives to date have been seriously impacted by the completely dysfunctional relationship between their parents.
The wife alleges extreme domestic violence and is adamant that the children would be placed at risk if they were to have a relationship with the husband.
Further, because of his abandonment of the family some four years ago and his failure to provide any financial assistance to them ever since, the wife is of the view that the husband has abrogated all his responsibilities as a father and that he can bring nothing positive to these children’s lives.
The husband offers no credible explanation as to his failure to properly support his children over the last four years. I accept however that he wishes to have an ongoing and proper relationship with his children.
Efforts to date to try and remedy the children’s relationship with their father have been to no avail and all efforts for supervised time have been unsuccessful, with the children refusing to spend any time with their father and becoming quite distressed when asked to do so.
The Independent Children’s Lawyer has put forward a proposal for the family to undertake intensive therapeutic intervention to be followed, upon the recommendation of the therapeutic counsellor, by the children spending time with their father on either a supervised or unsupervised basis as recommended by the therapist, and to include the possibility of a reasonably long period of supervised time between the children and their father at a contact centre. After that time it is proposed the matter would return to the court to determine what further time, if any, the children should spend with their father.
As set out earlier in this judgment, the Independent Children’s Lawyer proposed that the therapeutic counsellor could determine whether the time between the father and the children should be supervised or unsupervised. This is a matter to be determined by the court and not by the therapeutic counsellor, and to the extent that the Independent Children’s Lawyer’s proposal contains that provision, no orders will be made in those terms.
I am satisfied however that it is in these children’s best interests that they be given every opportunity to have an ongoing relationship with their father. I am also satisfied that [X], [Y] and [Z] should spend supervised time with their father. Because of the parties’ unsuccessful attempts to introduce supervised time between the husband and [X], [Y] and [Z] to date, the commencement of such time will require therapeutic counselling to have started and for there to be an assessment by the therapist that [X], [Y] and [Z] are better able to embrace seeing their father in that context.

An order in these terms is not an abrogation of the decision making role of the court to the family therapist. I have made a decision that it is in [X], [Y] and [Z]’s best interests to spend supervised time with their father with the assistance of intensive family therapy. The timing of the commencement of the supervised time is subject to the progress being made in that therapy and as such it is appropriate that the supervised time commence when the therapist working with the family is of the view that [X], [Y] and [Z] will spend that time with their father.
To that end, I intend to make orders that make provision for the parties and the children to engage in intensive therapeutic intervention, after which the children are to commence spending time with their father on a supervised basis once the therapeutic counsellor deems the children are ready for that step.
I will make orders that will give the parties leave to have the matter

re-listed for determination as to any further orders sought by each of the respective parties once therapeutic counselling has been properly engaged with.

I certify that the preceding two-hundred and six (206) paragraphs are a true copy of the reasons for judgment of Bender FM

Date: 9 December 2010