AHMED and GUPTA
[2020] FCWA 140
•31 AUGUST 2020
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: AHMED and GUPTA [2020] FCWA 140
CORAM: DUNCANSON J
HEARD: 25, 26, 29, 30 JUNE and 1 JULY 2020
DELIVERED : 31 AUGUST 2020
FILE NO/S: PTW 7711 of 2017
BETWEEN: MR AHMED
Applicant
AND
MS GUPTA
Respondent
Catchwords:
CHILDREN - where there are contested allegations of family violence and also cultural issues - where it is found there has been family violence perpetrated by the father upon the mother - where it is in the best interests of the children that the mother have sole parental responsibility for them and they live with her - where interim orders are made for the children to spend time with the father
Legislation:
Family Law Act 1975 (Cth) s 4, s 4AB(1) s 60B, s 60CA, s 60CC, s 61DA, 102NA(2)
Category: Reportable
Representation:
Counsel:
| Applicant | : | Self-Represented Litigant / Mr J Johnstone |
| Respondent | : | Ms T Wall |
| Independent Children's Lawyer | : | Ms K |
Solicitors:
| Applicant | : | Self-Represented Litigant / Johnstone Crouse Lawyers |
| Respondent | : | Bannerman Solicitors |
| Independent Children's Lawyer | : | Law Firm A |
Case(s) referred to in decision(s):
Nil
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ahmed & Gupta has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
1[Mr Ahmed], the father and [Ms Gupta], the mother are the parents of [Child A] and [Child B], two girls who are aged four and three years respectively.
2Both parties are originally from [Country A] where they had an arranged marriage in 2013. After the birth of Child A, the mother and Child A moved to Perth to join the father in 2016. Less than a year later the parties separated. Child B was born after separation.
3The mother alleges a history of sexual and physical violence and controlling and coercive behaviour by the father. The father strongly denies the mother's allegations. Against the background of these contested allegations and other family and cultural issues, the Court is asked to determine the parenting arrangements for the children. Currently the children live with the mother and spend a few hours each fortnight with the father.
THE ORDERS SOUGHT
4The children were represented by an Independent Children's Lawyer [("ICL")], Ms [K]. At the conclusion of the evidence, the ICL provided a minute of proposed interim orders. The ICL proposes that the mother have sole parental responsibility for the children and before making any long-term decisions she notify the father of her intentions. The ICL proposes that the children live with the mother and spend time with the father from 10.00 am to 2.00 pm on three consecutive Saturdays out of four for a period of six months and thereafter from 10.00 am until 4.00 pm on those days.
5The ICL proposes the handovers be supervised by [Supervision Agency A] with the cost thereof to be borne by the father. The ICL makes proposals for the provision of information concerning the children and proposes that the parties shall communicate by email only. The ICL proposes that both parties be restrained from travelling with the children outside of the Commonwealth of Australia and that the children's names remain on the airport watch list.
6The ICL proposes various injunctions including that the father not allow his brother, [Mr B] to be in the presence of the children for the first six months of the spend time arrangements. Thereafter, the father shall ensure that he is always present when Mr B is in the presence of the children and Mr B should not provide any personal care for the children.
7The ICL proposes that the mother continue her psychological counselling and that the father complete the 26 week program Changing Men's Behaviour at Relationships Australia or Communicare. She also proposes the father complete a parenting program for girls.
8The ICL proposes that after 12 months the parties attend a Legal Aid Dispute Resolution Conference to review the arrangements and that the single expert witness, [Dr C] review the matter prior to the mediation.
9The orders sought by the father are contained in a minute of final orders received by the Court on 26 June 2020. The father seeks an order that the parties have equal shared parental responsibility for the children, but in the event that the Court orders that the mother have sole parental responsibility she should:
•return belongings to him;
•be restrained from changing the children's last name; and
•be restrained from obtaining Australian passports for the children without his consent.
10The father proposes that the children live with the mother and they spend gradually increasing time with him at weekends and mid-week. With effect from 1 July 2021, he proposes that during the school term the children spend alternate weekends with him and time during the school holidays, together with time on special occasions and otherwise agreed by the parties. The father makes proposals for handovers, communication, the provision of information and travel. In relation to travel the father is not opposed to the parties taking the children overseas, but the mother should not take the children to [Country B] and Country A without him. The father proposes various injunctions, including non-denigration orders and orders restraining the mother from bringing the children into contact with various people who are family members.
11Finally, the father seeks orders that he have permission to provide a copy of the judgment in these proceedings to his family in Country A and to the Court in Country A for future reference and he seeks a letter from the Court clearing Mr B from any guilt. He also requires a letter from the ICL to the effect that the mother is a fit mother to the children.
12The orders sought by the mother are contained within a minute of proposed final orders filed 27 May 2020. The mother agrees to various orders sought by the ICL including that she have sole parental responsibility and that the children live with her. She also agrees with the spend time arrangements proposed and that they be supervised by [Supervision agency A].
13The mother agrees to the injunction restraining the parties from travelling outside the Commonwealth of Australia with the children and that the children remain on the Airport watch list. She agrees that the parties should not discuss the legal proceedings in the hearing of the children, they should not change the children's place of residence from the Perth metropolitan region and that they not denigrate the other, or members of the other parent's family in the presence or hearing of the children.
14In her said minute the mother proposes various orders with respect to communication and provision of school reports. The mother proposes various injunctions, including those for her personal protection and restraining the father from coming into contact with her or the children other than in accordance with the orders of the Court and from removing the children from her care, or coming within 100 metres of her residence or any premises at which she and the children are located.
BRIEF BACKGROUND
15The father was born in Country A [in] 1981. He is 39 years of age. The father migrated to Australia in about 2005.
16The mother was born in Country A [in] 1990. She is 30 years of age.
17The parties were married in Country A [in] 2013.
18Child A was born in Country A [in] 2016. The mother and Child A migrated to Australia [in] 2016.
19The parties separated [in early] 2017 when the mother left the family home. Child B was born in Australia [in mid] 2017. The parties were divorced [in] 2020.
SHORT RELEVANT HISTORY
20After the parties' marriage the father returned to live in Perth and the mother remained in Country A. The father travelled to Country A to see the mother.
21The mother alleged that the father pushed her in 2014 causing her to fall and later suffer a miscarriage. The father denied this incident occurred.
22The parties disagreed about who paid for the mother's medical treatment when Child A was born. They also disagreed as to who paid for the costs associated with her visa to enter Australia. Little turns on this. Included in the documents from the Department of Home Affairs was a document headed "[Ms Gupta] History of Relationship" in which the mother purportedly wrote of a happy marriage to the father. The mother signed that document [in] 2015. I accept that she did not write it and more probably than not did not understand the content at the time.
23After the mother moved with Child A to Australia, the parties lived in a home in [Suburb A] with the father's brother, Mr B.
24The mother alleges the father was controlling and physically and sexually abusive. I refer below to her allegations which the father strenuously denies.
25[In early] 2017 the mother left the family home. She alleged Mr B assaulted her. The father alleged the mother assaulted him. The police were called.
26The mother's belongings were uplifted from the home with the assistance of the police [in] 2017. [A few days later] the mother obtained an interim Violence Restraining Order ("VRO") against the father which was made final [in mid] 2017 for a period of two years.
27Child B was born after the parties separated.
28The father commenced these proceedings [in late] 2017 and [in] December 2017 orders were made on an ex-parte basis restraining both parties from removing the children from the Commonwealth of Australia.
29On 2 March 2018 orders were made for the appointment of an ICL. On 19 April 2018 the mother filed a Notice of Family Violence and Child Abuse (or Risk).
30On 17 September 2018 the Department of Communities provided its report. After completing a preliminary assessment into the notification the Department determined that the information received did not meet its child protection threshold and no further action was to be taken.
31On 10 May 2018 the parties attended a Case Assessment Conference. The Family Consultant referred to allegations and counter allegations that required further investigation. She reported that both parties informed her they had been diagnosed with depression. There were no drug and alcohol abuse issues. The mother alleged the father and his brother were verbally, emotionally and physically abusive towards her. The father denied the mother's allegations and alleged she was abusive towards him and that members of her family had been threatening and abusive towards him and other members of his family.
32The children commenced spending time with the father supervised by [Supervision Agency B] in June 2018. Supervision Agency B provided a report dated July 2018, the terms of which were positive with respect to the father's time with the children. Supervision Agency B recommended that visits progress in a supported capacity and Child B's time with the father increase. Thereafter it was recommended that visits progress to supervised handovers.
33On 22 November 2018 orders were made by consent that the children spend time with the father each alternate Saturday for two hours, with handovers to be supervised by Supervision Agency A.
34The parties attended a further Case Assessment Conference on 14 February 2019. At that time, the father explained his primary concern was the mother's false allegations against him and the impact on his wellbeing and family members in Country A. He confirmed his time was supervised to protect him from the mother's allegations. The mother's concern at that time was the lack of financial and other support. In dispute between the parties was the whereabouts of the mother's passport. At that time the mother was arranging counselling with a clinical psychologist. The Family Consultant recommended that the father recommence counselling.
35The children began spending unsupervised time with the father on 12 January 2019. In February 2019, the father received a referral for a mental health plan and the mother was referred to [Dr D] for counselling.
36On 15 May 2019 Dr C was appointed single expert witness.
37The mother applied to extend her VRO, but subsequently withdrew that application on 16 December 2019.
38On 6 January 2020 Dr C filed her report.
39On 3 June 2020 the parties attended a pre-trial conference. No agreement was reached. The Registrar noted "The issues between the parties which go beyond the issues disclosed by the papers are complex and the Court would be assisted if both parties had legal representation at the trial."
40On 9 June 2020 it was ordered that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) ("the Act") apply to any cross-examination occurring in the proceedings. The services of a lawyer were provided to the father for that purpose.
THE PARTIES AND THE EVIDENCE
41I have considered all of the evidence very carefully. In these reasons I have not referred to all of the evidence as I do not consider it necessary and nor is it practicable to do so. If I do not refer to part of the evidence of a party or witness, it should not therefore be assumed that I have ignored or overlooked it.
42Both parties had interpreters in the language [A].
43Mr Johnstone appeared on a grant of Legal Aid to cross-examine the mother on behalf of the father. Mr Johnstone explained he was not representing the father in the proceedings other than to cross-examine the mother, although he remained present throughout the evidence and provided some assistance from time to time to the father. The father is an intelligent man. He was well prepared. He sought some limited assistance from his interpreter when required.
44The mother was represented by Ms Wall.
45The parties' cultural background is important as a number of issues relating thereto arose during the trial. The father strenuously denied the allegations of family violence against him made by the mother and it was clear he wished the trial to proceed so those allegations could be challenged. He was confident the Court would find that the allegations were false and that he had not engaged in the alleged behaviour. This issue was of considerable importance to him.
46The mother's allegations of family violence were serious and they included violent behaviour on the part of Mr B. Mr B was not a witness in the trial, although in his proposed orders the father sought that he be exonerated from the allegations.
47The evidence also included issues concerning the parties' extended families. The father alleged that the mother had been influenced by her sisters and that allegations made by the mother were the same as those made by one or more of her sisters against their husbands. The father also alleged that the mother's brother made threats against him and his family in Country A. The mother alleged the father threatened her family in Country A.
48Although at the outset, the father indicated he agreed that the children should live with the mother, it was not possible to resolve the remaining issues. Subsequently he also agreed various spend time arrangements which were proposed, however it was not possible to resolve the proceedings by consent. The father wanted the trial to proceed and the evidence to be tested.
49The father barely mentioned the children in his closing submissions. In his closing submissions it emerged that important issues for him were not only to clear his name with respect to the family violence allegations and address issues concerning extended family in Country A, but also to explain his personal experiences since the parties separated. Those submissions centred on the discrimination and racist comments to which he said he has been subjected and victimisation by lawyers, the police and a social worker. The father said he was bullied by his lawyer, harassed by the police and he suffered hurt and depression. The father spoke of the treatment he as a Muslim, had received in Australia. He assured the Court that he was a law abiding citizen of Australia who considers himself fortunate to live in this country. He submitted his experiences during the course of these proceedings have caused him fear and humiliation and he was grateful to the Court for the opportunity afforded to him to explain this.
50The father was a respectful litigant. He said and I accept, he loves his children. Notwithstanding his strong denials of the mother's allegations of family violence, he was respectful of her role as a mother to the children and complimentary of it.
51Prior to commencing the trial I explained the procedure of the trial to the father as a self-represented litigant. I am satisfied that he understood it and he was invited to seek procedural advice when necessary. He did receive some advice from Mr Johnstone from time to time. I am satisfied that the father understood the proceedings. I refer below to his comprehensive cross-examination of Dr C.
52The mother spoke in [Language A] and received considerable assistance from her interpreter. The mother deposed she is able to read and understand some English, but needed assistance with the spoken and written English language.
53The mother was cross-examined by Mr Johnstone on behalf of the father. She was questioned regarding some inconsistencies in her affidavit evidence. She became very upset when questioned about allegations that she had tried to kill herself. The mother denied those allegations and said this was something the father was trying to put into her mind in circumstances when she is trying to be strong for the children. She described it as "mind games".
54The mother explained that on occasions during the marriage the parties went out as a family and a number of photographs were put to her. It was suggested that she was not confined to the house, but she maintained that she was. The mother strenuously denied she had coffee with the father when she met him at the train station after the divorce was granted.
Dr D
55Dr D is a clinical psychologist. She first met with the mother on 27 March 2019. They have had 17 sessions. Dr D saw the mother most recently in May 2020. Dr D prepared a report for the purposes of the mother's VRO proceedings [in] 2019. On 16 and 17 June 2020 she answered written questions posed on behalf of the mother. Dr D was interposed and gave oral evidence.
56Dr D reported the mother suffers from PTSD related to severe family violence and ongoing stress related to the legal process.
57Dr D described the mother as "still vulnerable" and "frail and at risk", but reported she has made good progress with respect to education, driving and managing her tasks and those of her children. In her oral evidence, Dr D stated the mother's reporting was consistent with all sessions and was reliable.
58The father asked Dr D if she had been provided evidence by the mother, for example a charge sheet from the police. Dr D distinguished her role as a psychologist from that of a forensic psychologist. She said she does not investigate, but deals with trauma. She said all the indicators suggested the mother has been very severely traumatised.
Dr C
59Dr C is a clinical psychologist. She prepared a report dated 30 December 2019.
60Dr C reported that the father told her he did not trust the ICL, the mother's lawyer, social worker, police and support worker and that he only trusted himself. She was unsure if that reflected paranoia or cultural differences and expectations. Dr C reported the father had experiences where he feels unfairly treated and blames it on prejudice.
61The father described Dr C's report as "controversial". The father asked a number of questions relating to Dr C's methodology. As a consequence of his questions, it emerged that Dr C had not been provided with the transcripts of the VRO proceedings in 2017 and 2019. She had been provided with the mother's trial affidavit filed 22 August 2019, although it was received by her after her interview with the father.
62The father informed Dr C that the orders to appoint her were not by consent, although the Court record confirms that they were and at that time the father was legally represented.
63The father corrected Dr C as to the date of her appointment and other dates.
64In summary, the father's criticisms of Dr C's report included typing errors, the length of time between her interview with him and the production of the report and also concerned the documents provided to her. The father was concerned that the interpreter who assisted the mother was a female interpreter who had assisted both the mother and him separately in the past.
65The matters raised by the father in cross-examination were appropriate and relevant. However, Dr C confirmed that notwithstanding those matters, she was satisfied with the terms of her report and documents shown to her since its preparation did not alter its terms.
66Dr C reported:
103.Throughout the interview the father indicated that his primary concern is the mother's false allegations against him and the impact on his well-being and family members in [Country A].
67Dr C reported the mother appeared to hold some resentment towards the father, a reference to him being involved in women, but she does not wish him harm.
68Dr C referred to the competing allegations in terms of domestic violence. She reported at paragraphs [109] and [110] of her report as follows:
109.In terms of the father, there are competing allegations in terms of domestic violence which ultimately need to be tested. However, when looked at from a psychological perspective, the mother provided a lot of consistent detail and her approach seem sincere. The relationship together in Australia was quite short and she was making allegations from before separation. This would increase the likelihood that she left because of the abusive treatment rather than making allegations of abuse to justify leaving. While the father had constant denial, he has also somewhat paranoid manner about him and perceives others as out to get him. This type of thinking increases the likelihood that he may engage in such behaviours.
110.The Court is faced with completely incompatible allegations. Either the relationship was very abusive, and the mother was a victim of significant violence, or the father was a victim of very malicious false allegations indicating significant personality disturbance on the mother's part. As stated, I find features which increase the likelihood of the father over the mother. The mother appears to have had mental health issues but not of a personality nature, more of a trauma nature. If the court finds that the allegations that the mother has put forward are of substance that the children are at risk of physical and psychological harm including being exposed to family violence, then time with the father will need to remain strictly supervised and limited. If the court finds that the mother has fabricated the stories, this raises serious concerns, and the Court will need to consider whether the children should stay in the care of the mother.
69In her oral evidence Dr C stated in her view it was more likely that the mother's version of events was more correct than that of the father referring to features of the father including his level of paranoia and his denials.
70Dr C confirmed she observed the father's visit with the children supervised by Supervision Agency A. She said she had no concerns and described him as attentive, loving, caring and affectionate and said the children reciprocated.
71Dr C had read Dr D's report and explained that the mother's difficulties were trauma related and not a psychological or personality condition that may have occurred prior in her life. Dr C assured the father that notwithstanding the mother's difficulty the children were safe while in a car driven by her.
72Dr C recommended certain programs. She expressed concern about Mr B.
FAMILY VIOLENCE
73The mother alleged she was the victim of family violence perpetrated against her by the father and also by Mr B. The father steadfastly denied the allegations.
74The allegations of the mother mostly concern events which took place in the home and consequently the evidence of the persons present being the father and the mother and perhaps Mr B is the only direct evidence available.
75The mother's allegations directly concern Mr B, however he was not called as a witness by either party.
76In these circumstances extrinsic evidence is of importance in the determination of which of the parties' accounts of events is to be believed.
77The mother alleged she was subjected to controlling and isolating behaviour of the father. She arrived in Australia with a young child. The father agreed she was dependent upon him. The mother alleged she was not permitted to leave the house and that she was locked in. The father denied this and said she had access to the remote control to the garage and was able to go anywhere anytime.
78The mother deposed that the father and Mr B told her it was dangerous outside of the home. The father denied that. He said she was new in the country and was scared to go out without him.
79The mother deposed she was usually allowed out of the home once per week with the father, normally at weekends. The father said he took her shopping and to appointments. He deposed he regularly took the mother and Child A on outings. He provided photographs thereof.
80The mother alleged there was a hidden camera in the home and that the father or Mr B always listened to her conversations. The father denied this. The father denied the parties argued but deposed the main source of conflict between them related to the mothers retention of their passports.
81The mother alleged Mr B was violent towards her and at times she was alone in the house with him. The father denied anything happened between them when he was not there and said the mother never informed him of any problem with his brother. He denied that the mother was scared of Mr B and that Mr B ever slapped or pushed her. The father described Mr B as a mature, caring and loving man.
82The mother alleged that in January 2017 she had an argument with the father and Mr B because she had spoken to Mr B's wife. She said on this occasion Mr B reached out to slap her face, but she moved and he pushed her shoulder against the kitchen wall. The mother deposed Mr B shouted at her and the father stood by, having previously told her she must do as Mr B says. The mother deposed she suffered some minor bruising. She was pregnant at the time and started bleeding. The father denied an incident occurred in January 2017.
83The mother deposed that in March 2017 the father slapped her across her left cheek with his right hand and told her to behave. The father denied he slapped her. He said he never assaulted her or verbally abused her and that Mr B never hit her. The father said they had a good life and that the mother was in fact controlled by her sisters and family members.
84The mother attended hospital in March 2017 after suffering bleeding. She was admitted to hospital, but two days later when Child A became ill she was sent home for a few hours to care for her. The mother alleged the father and Mr B made her do the cleaning when she was home. When she returned from hospital on 28 March 2017 she alleged the father slapped her across the left cheek in the presence of Child A. She was again taken to hospital where she remained for a number of days.
85The father denied the mother's allegations of assault and that she was made to do the cleaning. He deposed he looked after Child A when the mother was in the hospital overnight.
86The mother alleged that the father forced her to have sexual intercourse, including oral and anal sex against her wishes. The father described these allegations as "painful" and denied them. He said he never forced the mother to have sex with him and said she was controlled by her sisters. The father explained that the mother's sister experienced this behaviour from her husband and that the mother is "putting the same story, that story, to me".
87The mother alleged the father was physically aggressive towards Child A and that he and Mr B slapped her and on an occasion the father grabbed her by the throat. The father said this was not true. The mother alleged the father pushed the door and hit Child A in the face causing her nose to bleed. The father said this never happened. The mother alleged when she learned that she was expecting a second daughter the father told her to get an abortion. The father denied this and said it was not true.
88The mother alleged she was not allowed to make friends. The father said this was not true.
89The mother alleged the father took her phone from her in about December 2016. The father denied he took her phone from her. Calls were made on the phone between 28 December 2016 and January 2017. It was put to the father that he made these calls which he denied.
90The mother alleged the father called her "bitch", "slut" and "dog". The father denied he did so. He denied he did not tell her about a [contagious disease] diagnosis.
91The mother deposed that on 5 April 2017 she wanted to phone her mother and the father and Mr B told her to stop barking like a dog. The mother deposed Mr B pushed her. She grabbed Child A and went to the front door which was locked. She deposed that the father unlocked the door and told her if she wanted to go she could do so. Mr B had told him to let her go. The mother said she was walking in the street crying and distraught and the father filmed her using a mobile phone. She walked to a nearby shop from where the police were called. She was taken to [Suburb A Hospital]. She was provided with an interpreter. At the time she was four months pregnant with Child B. The following day she met a social worker at the hospital and was subsequently sent to a refuge.
92The father denied there was an argument and he denied Mr B was there. The father subsequently said there was an argument but he described the mother as "hyper". The father said the mother had assaulted him and that he had bruises on his chest. He said she started shouting and left with Child A. The father acknowledged he filmed her. He said the mother was shouting, yelling and screaming and asking for help. He said it was her choice to leave. He wanted her to stop shouting because the neighbours were watching. The father called the police.
93Exhibit 6 was a video clip of the incident. It records that the mother was distraught.
94The father said the video was incomplete in that it missed the first one or two seconds of what had been recorded. The father showed me the video on his phone. The video shows the mother crying. A person in a vehicle stopped and asked her where she wanted to go. The mother was carrying Child A and was clearly very upset.
95The police were called. Exhibit 7 is the WA Police CAD search which refers to a distraught female who did not speak English, suffering depression and homesick as she has no family in Australia. The incident report referred to the mother suffering depression and having ongoing problems with her partner. The report stated the mother's isolation from her country and family appeared to be a major issue. She was conveyed to Suburb A Hospital for assessment and social services to assist. The CAD search states "nil visible injuries to either party". It was put to the father that the mother had not assaulted him and he had not suffered bruising. He said he complained to the police that he had bruising to the chest, but the police were not interested in his complaint.
96The following day, the mother was interviewed at Suburb A Hospital and the social work report became Exhibit 8. The mother reported her brother-in-law had pushed her against a wall and later her husband pushed her out of the house. The mother reported that she stays in her room, however the father and brother-in-law have a key. She reported her brother-in-law verbally abuses and pushes her and she is scared of him. The father is aware of this behaviour, but has stated it is okay and has threatened to kill the mother if she goes to the police or talks to anyone. The mother reported that the father holds all of her documents and tells her he will send her back to Country A to be killed if she talks. The mother reported she was not allowed a phone or to have friends.
97The social worker noted the mother was sobbing and shaking on and off during the assessment.
98The mother's report to the social worker one day after she left the home was consistent with her sworn evidence as to family violence.
99Subsequently the mother collected her belongings accompanied by the police. She did not receive her jewellery, documents, handbag and wallet. She did receive her mobile phone, but said the data had been deleted. The father denied deleting data or damaging her clothes.
100In June and September 2017 the mother complained to the police that the father had contacted her family in Country A and threatened to harm her. At the time of the September report the mother was noted as being very fearful of the father. In June 2017 the father was interviewed by the police and denied the allegations made at that time. He deposed that the mother lied to her family about what had happened which led to the mother's brothers threatening him and his family which he reported to the police.
101The father alleged the mother sent him a friend request on Facebook which she denied. He deposed he has been careful not to breach the VRO.
102I am unable to make a finding about each and every incident of alleged family violence. Upon the evidence however, I am satisfied that the mother has been the victim of family violence as defined in s 4AB(1) of the Act, perpetrated by the father. I accept that the father controlled and coerced the mother. I accept that he controlled her financially and isolated her from others. I accept the mother's evidence that on 5 April 2017 the father and Mr B abused her causing her to leave the home with Child A. I am satisfied that the father's behaviour towards the mother caused her to be fearful of him.
THE LAW
103These proceedings are determined under Part VII of the Act. In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects as set out in s 60B:
The objects 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.
104In deciding whether to make a particular parenting order, s 60CA directs the Court to regard the best interests of the child as the paramount consideration. Section 60CC sets out those matters which the Court must consider in determining what is in the child's best interests.
105I must consider the primary and additional considerations. Section 60CC(2) sets out the primary considerations, which are the benefit to the child of having a meaningful relationship with both of the child's parents, and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
106Section 60CC(2A) provides that in applying the above primary considerations the Court is to give greater weight to the need to protect the child from harm.
Parental responsibility
107Pursuant to s 61DA of the Act, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child.
108Equal shared parental responsibility imposes an obligation upon them to consult as to major long-term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue. Major long-term issues are specifically defined in the Act at s 4 as issues about the care, welfare and development of a child of a long-term nature.
109The presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child does not apply in circumstances where there is abuse or family violence. The meaning of family violence is set out at s 4AB(1) of the Act which provides:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to) -
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
...
110The presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility.
PRIMARY CONSIDERATIONS
the benefit to the child of having a meaningful relationship with both of the child's parents
111The children have a meaningful relationship with the mother and it is to their benefit that it continues. The children have a close relationship with the father. It is to the benefit of the children to have a meaningful relationship with both of their parents.
the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
112I have discussed the mother's allegations of family violence above. I have found that the father has perpetrated acts of family violence against the mother. The mother agrees to the children spending time with the father, including on a gradually increasing basis. I asked her if she thought the children were safe with the father and she said they were. The supervisor reported in very favourable terms as to the children's visits with the father.
113The father deposed the mother has "serious mental health issues".
114The family consultant reported that the father alleged the mother had threatened to kill herself and Child A and that on an occasion she was holding a knife when she threatened her own and the child's life.
115The mother denied that she has attempted suicide in Country A or in Australia. She deposed that on the occasion referred to above by the father, she fell asleep with Child A in her bedroom and the door was locked. She did not hear Mr B knocking on the door. She awoke to both the father and Mr B in the room. They told her not to lock the door again and threatened she would be severely beaten if she did it again. The mother denied having a knife with her.
116The father alleged that after the parties divorce hearing the mother approached him at the train station where they had coffee together and talked for two and a half hours, after which they hugged each other. The father said that on that occasion the mother threatened if he did not listen to her and if he did not withdraw the Family Court case, she would jump in front of a train. The father made no mention of this threat in his sworn evidence. The mother denied his account of events on [that date], except that she spoke to him briefly at the station.
117The mother properly sought assistance from Dr D after separation. Dr D reported that although suffering from PTSD the mother appears to have had mental health issues but not of a personality nature, more of a trauma nature. She reported the mother has provided the children with routine and a secure and safe home since separation.
118Having regard to the evidence of Dr D and Dr C I am satisfied the children are not at risk of harm in the care of the mother by reason of mental health difficulties as alleged by the father.
119The father spoke in complimentary terms about the mother and agreed to the orders that the children should live with her. My assessment of the mother is that she is a loving and caring parent who has prioritised the needs of the children over her own in very difficult circumstances. My assessment of the father is that he is very proud of his daughters and he loves them very much.
120Upon the evidence I find there is not a need to protect the children from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence in the care of either party.
ADDITIONAL CONSIDERATIONS
any view 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
121The mother said Child A enjoys spending time with the father. The children are otherwise too young to have any meaningful view.
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)
122The children have a close and loving relationship with the mother. Both children have a close relationship with the father, although in the case of Child B, that relationship is developing. The mother says she has friends who have young children and the children enjoy the company of other persons.
the extent to which each of the child's parents 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;
the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
123The mother has made decisions about the major long-term issues about the children since the parties separated. She has maintained them. The father has paid child support, although currently while his work is limited the amount payable is only about $30 per month. He undertook to pay child support as assessed when his work resumes.
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
124It is not proposed that there be a change in the children's circumstances such that they would be separated from either parent. It is agreed that the children will continue to live with the mother. Currently the children are separated from the father and spend just two hours each fortnight with him. The proposal of the ICL is that the amount of time each Saturday will be extended to four hours initially, and thereafter seven hours after a period of six months and this will occur three out of four weekends. This is a change in the children's circumstances which will increase their time with the father and thus provide an opportunity to develop their relationship with him. It is likely that this change will have a positive effect on the children's relationship with the father and be beneficial to them.
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
125There is practical difficulty and expense because handovers require to be supervised. There is an associated expense to this. The mother is in receipt of Centrelink benefits and supports the two children. In the father's financial statement filed 17 January 2019, he deposed to a weekly income of between $300 and $400, however his income has reduced. Having regard to the father's capacity to earn an income and the mother's obligation to maintain the children, I consider the costs of the supervised handovers should be met by the father.
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
126The mother has the capacity to provide for the children on all levels. She has accommodation and a network of friends. She attends [a business school] and she has obtained a driving licence. She has made a recovery in her mental health and her circumstances are stable. Dr C reported the mother has the capacity to provide for the children on all levels. She described the mother as living "minimally", however "the children are happy, they do not go without, she maintains a clean and safe home, the children interact with others and attend day care." The father expressed concern about the impact of the mother's mental health on her ability to drive safely with the children. Dr C stated she had no concerns for the children's safety in this respect.
127Dr D stated the mother is a very good mother to the girls and they are very attached to her. She stated the mother's priority has always been her girls. Dr D further reported:
However, understandably the rejection and abuse inflicted on her has also left some long term mental scars and anguish. She has all the capacity that a "normal" mother could have in bringing up two very young girls as a single mother. Despite the lack of family or any social support, lack of language proficiency in communication, lack of finances and several other limitations, she has done a remarkable job in being a good mother.
128The father's circumstances are also stable. He has received counselling. To his credit he has attended various parenting courses including the Mums and Dads forever program. The Supervision Agency B reported after eight supervised visits that the father was observed to appear comfortable in his parenting capacity and to parent the children in a nurturing, positive and constructive manner. Dr C said the father has been observed to have the capacity to recognise and provide for the children's physical needs, he brought food and toys to the supervised visit, provided for the children's social needs and comforted them if they hurt themselves.
129The father is capable of providing well for the children.
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
130Both parties are of the Muslim faith and both are originally from Country A.
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
131This consideration is not relevant.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
132Both parties have a responsible attitude to the children. The mother acted responsibly in protecting Child A from harm. Notwithstanding her own experiences of the father, she is of the view that the children are safe in his care and she will promote and encourage their relationship with him. The father is respectful of the mother's role towards the children. The parties are now separated and do not come into contact with each other.
133Dr C reported as follows:
116.The parents have demonstrated that they encourage the children's relationship with the other parent. The father noted that he has received a beautiful Father's Day card from the children and the mother encourages the children to play nicely with their father. The father has told the children that he loves mummy and has praised the mother's parenting, as noted in the report.
117.The children also transition well from seeing the father to returning to the mother, as noted in the Child Contact Report. This is a credit to the parents to leave their differences aside. However, of concern is the father's comment that the eldest child has told him that he has been bad to mummy, as noted in the report.
any family violence involving the child or a member of the child's family
134I refer above to my findings in this respect. There has been family violence involving the parties. I do not consider there is a risk of family violence in the future.
if a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
135The mother had a final family violence order for a period of two years. In December 2019 an extension was listed for hearing, but the mother withdrew her application. The father said the mother breached the VRO in that she invited him to become a friend on Facebook. She denied this. In closing, the father assured the Court that he was a law-abiding citizen and did not breach the restraining order.
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
136I will not make final orders in the circumstances of these children. The children are very young and currently their time with the father is limited. There will have to be a gradual progression of time and an order to that effect is in the best interests of the children. Dr C considered such an arrangement to be appropriate for the children and also considered that a review of the parties after about 12 months would be appropriate. The arrangement proposed by the ICL is that there will be interim orders with the father's time gradually increasing over two periods of six months, but not to overnight.
any other fact or circumstance that the court thinks is relevant
137The father's view of marriage and the duties of a wife may be traditional ones in contrast to those of the mother who felt confined and denied her freedom.
138As stated above the father has attended various parenting courses. In evidence he said he did not need to attend a family violence course but if it was ordered by the Court he would do so.
139Although I have not been able to make findings as to specific incidents of family violence I am satisfied that the father's controlling behaviour of the mother amounts to family violence perpetrated by him against her. I am unsure as to the extent to which the father's cultural beliefs may have contributed to this. The mother deposed that she believed the father's expectation of bringing her to Australia was so that she could be a domestic help and be a subservient to him and his brother in the house. In contrast the father said he had been living in Australia for 16 years, Australian culture comes first and the religion is his second option. The father said he is proud to be Australian and to have two beautiful daughters in Australia. In this respect, he described himself as a modern Muslim.
140One of the courses attended by the father is a "Stand up to Bullying Information Session" which he completed in August 2018. The father also completed a "Circles of Security Parenting" course, a "Protective Behaviours Information Session" and a "Mums and Dads Forever program". I am not persuaded the father should attend the 26 week family violence course proposed by the ICL as recommended by Dr C. I have borne in mind Dr C's report as set out at [133] above. I have also taken into account that:
•the father has voluntarily attended the courses set out above;
•he is spending unsupervised time with the children following positive supervision reports;
•he was respectful of the mother and complimented her in her role as a parent; and
•he assured the Court he would comply with Court orders.
141Both parties made complaints that they or their family members had been threatened by the other party or the other parties' family members in Country A or in Country B. Both parties made complaints to the police about this behaviour. The father deposed to proceedings in Country A involving the parties' respective families.
142The father said the mother told him that she withdrew her VRO application on 16 December 2019 and therefore it was his turn to withdraw from the Family Court proceedings. Counsel for the mother put to him this was untrue and the father approached the mother and said if she persuaded her family to discontinue the proceedings against the paternal grandmother in Country A than he will give her custody of the children. The father strongly denied this. As best I can upon the evidence, I understand that there are proceedings in Country A concerning threats made by the mother's brothers to the father's mother. The proceedings were subsequently withdrawn or resolved. However, counsel for the mother said the Court in Country A is now pursuing a claim against the father's mother for perjury and false allegations. The father said this is untrue and the mother's brother has lodged a case against his mother for compensation after she forgave him and withdrew her application. The father also deposed that the mother's brother harassed his mother again and she applied for a protection order.
143In these proceedings the Court's function is to make orders which are in the best interests of Child A and Child B. The Court's attention should not be diverted from that task by matters concerning the parties' family in Country A which although important to the parties are not matters upon which this Court can make any findings.
CONCLUSIONS
144Having considered all of the evidence in the context of the primary and additional considerations I have come to the following conclusions.
145There has been family violence between the parties. The presumption that it is in the children's best interests that their parents have equal shared parental responsibility for them does not apply.
146An order for equal shared parental responsibility would require the parties to consult as to major long-term issues regarding the children and to make a genuine effort to come to a joint decision about such an issue. In the circumstances of these parties, they would not be able to meet this requirement.
147The children live primarily with the mother and spend limited time with the father. In these circumstances I consider it to be in the best interests of the children that the mother have sole parental responsibility for them, although she should inform the father of any decision made by her as to a major long-term issue concerning the children.
148The children have lived with the mother since their birth. Child B was born after the parties separated. In these circumstances it would be in the best interests of the children that they continue to live with their primary carer. The father is not opposed to an order to that effect provided the Court is satisfied that the children are safe from harm in the care of the mother. The Court is so satisfied and I refer to my findings above as to the need to protect the children from harm. I shall therefore order that the children live with the mother.
149Since the parties separated, Child A has spent limited time and not overnight time with the father. Child B has also spent only limited time with him. It is in the best interests of the children that they continue to spend time with the father and that the time gradually increase such that they are developmentally able to cope with it. The order proposed by the ICL to increase that time to four hours is appropriate and her proposal that this occur three weekends out of four is a sensible one, with frequency of the time being in the best interests of these young children.
150In the past the father has been of the view that the children's time with him should be supervised to protect him against accusations by the mother. Since then the Children's Contact Service provided a favourable report with respect to the father's parenting and the children's time with him has progressed to unsupervised time, except for handovers. In these circumstances and having regard to my reasons as set out above, it is to be hoped that the father will understand that it is not necessary for him to be protected against allegations in the future, also taking into account Dr C's report that the parties had demonstrated that they had encouraged the children's relationship with the other parent.
151The orders proposed by the ICL as to handover, provision of information and travel are entirely appropriate, but I will hear from the parties or their counsel in relation thereto, once they have had an opportunity of considering these reasons.
152The mother alleged Mr B was physically aggressive towards Child A and hit her. He was not a witness in the proceedings and I did not have an opportunity to assess him. In all the circumstances I consider the injunction proposed by the ICL that the father not allow Mr B to be in the presence of the children for the first six months of visits to be appropriate. I am however mindful, firstly that Mr B lives with the father and secondly that the father does not accept the allegations made against Mr B. After six months, Mr B may be in the presence of the children, but only if the father is also present and Mr B should not provide personal care to the children.
153An appropriate order and one which I consider to be in the children's best interests is that the father should always be present if the children come into contact with Mr B. At some point in the future the father will want to take the children to his home, which is also the home of Mr B and I consider the father can be trusted to protect the children from harm while they are in his care.
154The mother should continue her counselling with Dr D. Instead of attending the course proposed by the ICL the father should either continue with, or recommence counselling which addresses family violence, its impact on others, in particular the circumstances of these parties. For that purpose the parties will have permission to provide these reasons to their counsellors.
155I also consider it entirely appropriate that the father complete a parenting program for girls, such as Dads Raising Girls at Relationships Australia. This may assist him going forward in his role as the father to two young daughters.
156I shall make the further orders providing for a review of the children's arrangements. The parties will have liberty to apply to relist.
THE ORDERS
157Subject to hearing from the parties, counsel and the ICL, the orders I propose to make are as follows:
1All previous parenting orders be and are hereby discharged.
2The mother, [MS GUPTA] have sole parental responsibility for the long-term care, welfare and development of the children, [CHILD A] born [in] 2016 and [CHILD B] born [in] 2017 ("the children").
3Before making any long-term decisions the mother shall notify the father, [MR AHMED] by email and advise him of her intentions.
Live with and Spend time with Arrangements
4The children live with the mother.
5Until further order of the Court, the children spend time with the father for three consecutive Saturdays out of four as follows:
(a)for the first six months, from l0.00 am until 2.00 pm; and
(b)thereafter from 10.00 am until 4.00 pm.
Handover
6Handovers be supervised by [Supervision Agency A], with the cost of the handovers to be borne by the father.
Provision of information
7Each party shall advise the other in writing of any change to their contact email address within 24 hours and shall maintain an email account at all times for the purposes of only communication regarding the children in accordance with these orders.
Health and Medical
8Each party shall notify the other as soon as reasonably practicable of any accident or emergency involving the children which involves medical treatment or hospitalisation whilst the children are in their respective care including the name and contact details for any treating medical practitioner or name of the hospital in the case of an admission to hospital.
9The mother shall keep the father informed as to any major medical issues involving the children and in the case of any substantive medical attention or treatment.
10The parties shall ensure all prescribed medicine is administered to the children in accordance with any relevant prescription or recommendation of any treating medical practitioner during any period that the children are in their care.
11The parties shall ensure that any medication prescribed for the children is returned to the other party at the conclusion of any period that the children are living with or spending time with them.
Travel
12Until further order of the Court, the parties be restrained and an injunction is hereby granted restraining them from removing or attempting to remove or causing or permitting the removal of the children, [CHILD A] (female) born [in] 2016 and [CHILD B] (female) born [in] 2017, from the Commonwealth of Australia.
13It is requested that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watch List.
14The injunction contained in the previous paragraph of this order remain in force for a period of 2 years.
15Upon expiration of the period referred to in the preceding paragraph and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the said children's names from the Watch List.
16The Marshall and Officers of the Australian Federal Police and the Police Forces of the States and Territories are requested and authorised to give effect to these orders.
Injunctions
17The parties be restrained an injunction be granted restraining them from:
(a)denigrating the other or discussing legal proceedings in the presence or hearing of the children;
(b)changing the children's place of residence from the Perth Metropolitan Region without the other party's written consent; and
(c)denigrating or allowing any other person to denigrate the other party or the other party's family members in the presence or hearing of the children.
18The father be restrained and an injunction be granted restraining him from:
(a)allowing the children to be in the presence of the paternal uncle, [Mr B] for a period of 6 months from the date of these orders; and
(b)obtaining or attempting to obtain the mother's residential address and phone number, and the address of where the children attend school, day care and kindergarten.
19After six months the father may permit [Mr B] to be in the presence of the children, however the father shall ensure he is always present and [Mr B] does not provide any personal care to the children.
Counselling
20The mother continue psychological counselling with her current counsellor, [Dr D], for such time and frequency as recommended by [Dr D].
21The father attend upon a psychologist for counselling as directed by the psychologist.
22The father complete a parenting program for girls, such as Girls and Fathers at Relationships Australia, and provide a copy of certificate of completion to the other party and the Independent Children’s Lawyer.
23The parties have permission to provide a copy of these reasons and the report of [Dr C] to their appointed psychologists.
Other Orders
24No sooner than 12 months after the date of these Orders, the parties attend a Legal Aid Dispute Resolution Conference at Legal Aid WA, to review the above spend time with arrangements, with the Independent Children's Lawyer to make such an application to Legal Aid.
25Subject to Legal Aid funding, the single expert witness, [Dr C] be requested to review the parties and provide an updated report prior to them attending mediation.
26The parties and the Independent Children's Lawyer have permission to apply to relist, including after they have attended mediation.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate
31 AUGUST 2020
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