AHSAN & AHSAN

[2018] FamCA 1165

FAMILY COURT OF AUSTRALIA

AHSAN & AHSAN [2018] FamCA 1165

FAMILY LAW – Reasons for decision – Ex temp judgment – interim parenting orders for two of the children to live with the mother – where the orders were made during a final undefended hearing – where the children are at risk of being alienated from the mother.  

APPLICANT: Ms Ahsan

RESPONDENT: Mr Ahsan

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: PAC 2493 of 2016

DATE DELIVERED: 2 November 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 2 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ahmad

SOLICITOR FOR THE APPLICANT: Integrated Law Group

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Barber Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Ms Neville

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid NSW

Orders

1. Leave is granted to the legal representative of the parties, the Independent Children’s Lawyer to inspect material produced by Suburb X Local Court.

2. Leave is granted to the legal representative of the parties and the Independent Children’s Lawyer to inspect material produced by NSW Police.

3. The father forthwith take all steps and do all things to cause the children B born … 2011 and C born … 2008 (“the children”) to be delivered to Child Dispute Services at this Court.  For this purpose the father will be required to make those arrangements in the court room and a soon as the children have arrived confirmation will be given by the Director of Child Dispute Services.

4. If order 4 is not complied with and the children have not arrived at Child Dispute Services by 5pm a recovery order shall issue.

5. All previous orders with respect to the children are discharged.

PENDING FURTHER ORDER

1. The children are to live with their mother.

2. The mother shall have sole parental responsibility for the children.

3. The mother be permitted to enrol the children in a school of her choosing.

4. By consent, the mother is to spend time with the child D born … 2007 each Thursday from 5pm to 8pm commencing on 15 November 2018 and this order is in substitution for any previous order with respect to the mother’s time with D.

5. By consent, pursuant to section 68B of the Family Law Act 1975 (Cth) the father is restrained from encouraging, allowing, causing, permitting or otherwise acquiescing to the children or either of them entering his care and/or control and/or the care and/or control of the paternal grandparents otherwise than in accordance with these Orders or as agreed between the parents. This includes, but is not limited to, allowing, causing, permitting or otherwise acquiescing to the children or either of them entering into any residence where he may live or otherwise be present.

6. By consent, pursuant to s68B of the Family Law Act 1975 (Cth), the father shall be restrained by injunction from:

   a.Telephoning or in any way contacting or attempting to contact the mother and the children including through a third party except legal representatives;

   b.Approaching any property by himself or his agents or by anyone at his direction in which the mother is residing in the property except in accordance with any order or agreement in writing;

   c.Going within 200m of the children’s school, the mother’s residence, or any other location where the mother and the children are staying.

7. The father is restrained from permitting the children from having any contact with Ms Y.

8. By consent, the father is restrained from taking any of the children subject of these proceedings to any correctional facility or permitting any other person to do so on his behalf.

THE COURT ORDERS THAT

1. Once the children have been delivered to Child Dispute Services the adults who have facilitated their delivery are to leave the precincts of the court forthwith.

2. Dr Z’s report be made available to the Senior Family Consultant of Child Dispute Services noting that Dr Z’s evidence has not yet been tested.

3. By consent, the wife be entitled to receive forthwith the proceeds of the funds held in her solicitors trust account from the sale of the Suburb A property to be paid into an account nominated by the wife noting that these funds are not to be utilised for the payment of legal fees.

4. By consent, previous orders with respect to urinalysis are to continue but are varied by adding the condition that they are subject to chain of custody handling and are to be supervised by observation.

1. The proceedings are adjourned part heard to 10am on 12 December 2018 and/or such other date that may be fixed by arrangement between the Independent Children’s Lawyer and my Associate.

2. A transcript of the proceedings together with any further affidavit filed in accordance with the following directions are to be provided by the Independent Children’s Lawyer to Dr Z.

3. If the parties wish to rely upon any affidavit in relation to events from today until 12 December 2018 in support of any orders sought by them, such affidavit is to be filed and served by 7 December 2018.

4. At the completion of today’s hearing the father is to leave the precincts of the court immediately and is not to attend Child Dispute Services or any other part of the court building.

5. Both parties are to provide to chambers written submissions with respect to property on 7 December 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ahsan & Ahsan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2493 of 2016

MS AHSAN

Applicant

And

MR AHSAN

Respondent

REASONS FOR JUDGMENT

1. I make the following short reasons for judgment with respect to the various interim orders that I have made today.  For the previous five days, I have presided over quite extraordinary parenting and property proceedings, and these reasons relate only to parenting orders that have been made and are limited to the parenting aspects of those proceedings.

2. So far as parenting is concerned, I use the word extraordinary for the following reasons.  Currently the five children of the parties are living with the father.  Despite the fact that very serious allegations are made by the mother with respect to family violence perpetrated by the father, controlling behaviour and undermining of her role as a parent, and that the expert appointed in the proceedings (who, I may add, has not yet been tested by cross-examination) raises serious concerns that the father has engaged in conduct which falls within the description of alienation or causing the children to reject their mother who had hitherto been their primary caregiver throughout their lives, the father has done the following.

3. The father filed no affidavit in these proceedings, provided no explanation for his failure to do so and had to be directed to attend a court event one week ago prior to the commencement of the final hearing after being given advice that if he did not attend that he would be arrested. 

4. When the final hearing commenced this week, the father initially indicated that he would not make himself available for cross-examination and specifically declined to rely upon earlier affidavits that he had filed in the proceedings, which may have provided some assistance to the Court.  The father ultimately only made himself available for cross-examination on the application of the Independent Children’s Lawyer’s counsel who submitted that the Independent Children’s Lawyer was unable to discharge her role with respect to forming a view as to the parenting arrangements that were in the best interests of the children without hearing from the father and the current circumstances of the children.

5. The other extraordinary aspect about these proceedings is that although there was a brief period for a few months after the parents separated in November 2015, when the children all lived in the care of the mother in the maternal grandfather’s home, the circumstances of the family dramatically changed from around April 2016.  From around that time, as I understand it, the father contended that the mother posed risks to the children on a number of bases in her care.

6. Despite the father’s allegations being aired in various interim applications, the Court persistently made orders that operated for a period of months in 2016 that the children live primarily with the mother and spend quite substantial time in the care of the father. 

7. By August 2016, notwithstanding the orders of the Court, the mother effectively relinquished the children into the care of the father and thereafter regardless of the orders of the Court, effectively the children remained in the care of the father. 

8. There were some further orders made in November 2016 for the children or four of them to live with the father and spend time with the mother, but by that stage the relationship between the children and the mother was extremely fractured.  The children had spent little time with their mother since that date, though certainly not in accordance with the orders of the Court and there has been no explanation for why that has occurred.

9. When the expert appointed in these proceedings, (Dr Z, a child and family psychiatrist), saw the family in 2017 she described quite extreme behaviour and attitudes expressed by the children in relation to the mother.  Generally, the expert described the sibship as having a strong alliance with each other and their father and observed that at her assessment there was a striking difference between the children’s pleasant cooperative presentation when seen with the father and their rude and aggressive behaviour when seen with their mother.

10. The expert described the youngest child, B, who was at that time, just six, as presenting in a remarkable fashion in his interview in his attempts to recite the older siblings’ and father’s distinctions between the “old” and current mum with a robust rejection of the latter.  Dr Z expressed the view that he had undoubtedly been influenced by their words and actions.  She saw a similar presentation in the second youngest child, C, who was at that time not quite nine. 

11. With respect to the older three children, Dr Z described that their presentation as markedly concerning because of their absolute repudiation of their mother.  She noted that there had been some attempts by a very experienced therapist to therapeutically intervene with the family but to no avail. 

12. Overall, the expert described the presentation of the children as a hybrid/mixed case of alienation because there were some elements of understandable rejection of the mother arising from some of her actions.  The expert explained that parental alienation is a form of psychological abuse through which a child loses capacity to give and accept love from a parent.  She noted the critical importance of differentiating the alienated child from other children who resist contact with a parent after separation for a variety of normal realistic or developmentally expectable reasons. 

13. The general tenor of Dr Z’s report is that there have certainly been some valid reasons for the children to feel very disappointed and let down by their mother and she has certainly had some shortcomings in her parenting capacity which the mother does not deny (though there may still be found to be some concerns with some minimising).  The expert opines however that even taking these matters into account the level of rejection by these children is simply inexplicable except through the lens of describing it as alienation. 

14. The expert’s recommendation at that time was that there be clinical intervention by a clinical psychologist Dr W because she felt that there should be at least an attempt to work in a therapeutic way prior to the final hearing.  It is common ground that Dr W, who gave evidence before this Court was not successful in the therapy.  While there were some promising signs of reconciliation between the children and their mother that has subsequently completely broken down.  For the last few months the children have spent no time with their mother despite, as I say, there being orders in place for that to occur and despite there being no explanation put before the Court as to why that has not occurred.

15. The recommendation of Dr Z is as follows:

    If a further clinical intervention by De W is not possible or is not successful, a structural intervention whereby structural changes are made in the family needs to be considered.  Should this become the case, I will be recommending to the Court that C and B, the two younger children, live with their mother from the end of 2017, and to settle them in their time with her, their time with their father and older siblings would be restricted in the first three months and that the mother will need to work with an experienced child and family clinician to ensure she is optimally parenting them and to be able to appropriately respond to any communication with her other children and their father.

16. As was just noted from the extract that I read out, Dr Z’s recommendation was this was to begin almost 12 months ago.  Since that date, the clinical intervention of Dr W was carried out and directions were made so that this matter could be listed for final hearing.  The parties did not comply with the filing directions so that the matter could be heard expeditiously earlier this year and an extension was given for the time within which to file affidavits which the mother then complied with and the matter was listed before me.

17. Despite the father being represented and by the same lawyer who represented him in the final proceedings, who assured the Court that his affidavit would be filed shortly (and dates being given only on that basis as this normally final trial dates are not given in this registry until compliance has been completed) the father did not file any trial affidavit. 

18. The application to change residence and care arrangements for the two younger children on an interim basis was made by the ICL.  As acknowledged by counsel for the independent children’s lawyer in her submissions, normally is a very unusual course, but as I say, this has been a very unusual matter.

19. I am concerned that the reason that the father did not provide any information concerning his current circumstances is because he wished to keep them from the Court.  It only came out through cross-examination that the father has an extremely close relationship with a man who is currently in custody for very serious charges with respect to organising criminal activity and supply of a commercial quantity of drugs.  Such is the closeness of the father that he describes this man, Mr U, as his best friend.  He was his best man at his wedding and he also describes the children as having an extremely close relationship with him, so close that the father seemed to consider that it was appropriate and somehow beneficial for the children for them to be taken to visit Mr U in a custodial setting, and this includes a child as young as D who is still in primary school.

20. Some of the concerning features about the arrest of Mr U also came to light only in the course of the proceedings including that there were large quantities of cash, counterfeit currency, illicit drugs and ammunition found at his home, a matter which on the evidence before me does not involve any controversy between the parties.  It is apparent from either the father’s evidence himself or from documents produced to the Court, that this was a home that the children frequented, the place of the arrest and the place from which the allegations of the criminal activity is alleged to have occurred. The children freely mixed with and had a very close relationship with Mr U and his child and also Mr U’s wife has played some sort of role in the children’s lives.

21. Mr Moussa’s wife is not a person that was mentioned to Dr Z as being significant.  There was no evidence at all about what role she played or who she was, prior to the proceedings.  At first, observations were made of physical affection between the father and this woman who turned out to be Ms Y, the wife of the father’s best friend who is in custody.  Initially, the father said, despite the fact that this physical affection had been observed by me earlier in the same day or the day before, that he didn’t remember whether it had occurred.  He then positively denied that it had occurred.  He then proffered an explanation for why it had occurred, that explanation being an attempt to make the mother jealous which one would think in the context of these proceedings where serious allegations of parental alienation have been made against the father is quite an extraordinary proposition.

22. It then became apparent that Ms Y has been very involved in the family’s life.  She has taken D to an appointment with a psychologist.  She accompanies the children when the father takes them to visit her husband in custody.  She says that she provides support to the children, and that she gains great support from the children.  It was entirely unclear whether Ms Y, in fact mainly lives at the father’s premises with the children or has mainly done so in recent times or lives there occasionally or lives between various houses.  There was varying and conflicting evidence given by the two of them.  Ms Y gave some quite contradictory evidence before this Court about issues relating to visits to the gaol and certainly it could not really be explained how, it could be seen to be in the bests of these children to be taken to that correctional facility.

23. Other matters pertaining to the father’s household that became clear under cross-examination and again as I say are not the subject of controversy are that the children have missed quite a lot of school this year and there has only been a medical explanation put forward for a few of those days.  By an extraordinary coincidence, both C and D have been absent for exactly the same 14 days.

24. Further, the actual care arrangements for the children are quite unclear.  The role that Ms Y plays in caring for the children, the role of the paternal grandparents, what exactly the father does in terms of hands-on care.  Again this arises because the father didn’t put evidence before the Court.

25. In light of the father’s failure to file an affidavit, there is no evidence to refute the mother’s allegations that he engaged in controlling behaviour and violent behaviour.  There is, in addition, some objective evidence to support her accounts including reports of counsellors and matters said to counsellors and the fact that the father attended for some anger management counselling shortly before the end of the relationship.  Bearing in mind that this is essentially undefended, a huge amount of the mother’s case went unchallenged.

26. In all of these circumstances, matters of significant risk in the father’s household have been raised albeit that I’m unable to make final determinations about them.  In the absence of the father adducing any positive evidence and in light of all of these matters and that Dr Z’s opinion, (untested albeit that it is), that her recommendation was that a year ago, the two younger children should be moved to the mother’s care, I make those orders for the two younger children with respect to residence, parental responsibility and schooling.

27. In relation to the restraint upon the father permitting the children to be brought into contact with Ms Y, I refer back to the comments I made about her and her role in the proceedings and in the household.  She is not a person that anyone knew anything about prior to the last day or so.  She appeared to initially be a person accompanying the father to the proceedings.  She then seemed to be someone who was assisting the father with respect to making sure that money was made available so that Dr W could attend, picking the children up from school and the like.  There is evidence about her husband’s arrest, the nature of the charges against her husband.  There are also some concerns about her being part of that criminal milieu in which her husband appears to operate with cocaine being found in the hotel suite where they spent their wedding night and I note that the child E was part of the wedding party that spent the night in that hotel room.  I might add also with respect to the father that historically a matter of concern had been his cocaine use.

1. There have been a number of drug tests of the father indicating no presence of cocaine, but the last of those was taken in February this year.  He effectively objected to participating in one urine test in recent months on the basis that he claimed he couldn’t afford it, and in relation the other one, he has put up an explanation which, in my view, is no explanation for not having complied with that test, the net result being there hasn’t been any testing since February.  In all of those circumstances and considering that Ms Y was a witness in these proceedings and that the matter is to be adjourned part heard, those are the reasons for that restraint.

2. The remaining order that was proposed by the mother that I declined to make is the order that the mother have defined time with F and E.  The general recommendation has been and the mother’s final proposal was to be that those children spend time with her in accordance with their wishes.  Notwithstanding the matters that are of concern in the father’s household, I don’t think they are as relevant to the issue of whether the time should be defined or in accordance with the wishes.  Considering that these older children may form views and have some adverse reactions in relation to the changed parenting arrangements for the younger children, I think it is in their best interests for the alternative order proposed by the independent children’s lawyer and consented to by the father to be made. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 2 November 2018

Associate: 

Date:  20 August 2019