AKBAR & ELANI

[2016] FamCA 794

FAMILY COURT OF AUSTRALIA

AKBAR & ELANI [2016] FamCA 794

FAMILY LAW – CHILDREN – Undefended parenting - Best interests of the children – The father’s non-attendance – Issues of family violence – Physical and verbal abuse of the children, Sexual abuse – Benefit of the children’s relationship with each parent – Best interests of the children to live with the mother and spend no time with the father – Mother to hold sole parental responsibility.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61B, 61C, 61DA, 65DAA, 69ZN

Jarrah & Fadel [2014] Fam CAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
Gleeson & Clark [2006] FamCA 994

APPLICANT: Mr Akbar

RESPONDENT: Ms Elani

INDEPENDENT CHILDREN’S LAWYER: Ms Rowley

FILE NUMBER: PAC 3973 of 2013

DATE DELIVERED: 5 September 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 12 April 2016

REPRESENTATION

APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: Barber & Massey

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Rowley & Associates

Orders

1. That the mother have sole parental responsibility for (“the children”) B born … 2005 and C born … 2007.

1. That the children live with the mother.

1. That the children spend no time with the father.

1. That the father be restrained from communicating with the children B born … 2005 and C born … 2007.

1. That the father be and is hereby restrained from obtaining any passport or any other document permitting international travel by the children or either of them.

1. That each party be restrained from or allowing any other person to denigrate the other party in the presence of within the hearing of the children or either of them.

2. That until further Order each party, and their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children B born … 2005 (a male) and C born … 2007 (a male), from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said children on the Airport 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 until the Court orders its removal.

3. The Marshal and all 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.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1538  of 2013

Mr Akbar

Applicant

And

Ms Elani

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns the long term parenting arrangements in respect of two boys, B aged 10 years old and C aged nine years old, the children of Mr Akbar (“the father”) and Ms Elani (“the mother”).

2. The parents married in Lebanon in 2004 and migrated to Australia in 2005. After the birth of their two children in 2005 and 2007, the parents separated in 2008.

3. The father commenced proceedings in the Federal Circuit Court of Australia in September 2013, seeking orders for shared parental responsibility of the children and to spend substantial and significant time with the children.

4. The father has inconsistently engaged with the proceedings and on 12 April 2016, the matter was listed for an undefended hearing.

5. The mother seeks orders as set out in her Amended Response to the Initiating Application filed 3 July 2014. She proposes that she have sole parental responsibility for the children, that the children live with her and spend no time with the father. She also seeks that the father be restrained from communicating with the children, from obtaining passports for the children, from removing the children from Australia and a restraint on both parents from denigrating the other parent. The Independent Children’s Lawyer (ICL) supports the orders sought by the mother.

The father’s non-attendance

1. As noted, the father initiated the proceedings in the Federal Circuit Court of Australia in September 2013. The matter was transferred to the Family Court of Australia in February 2014.

2. On 2 May 2014, the father’s solicitors filed a Notice of Withdrawal as Lawyer. On 6 May 2014, the father did not appear at a directions hearing before a Registrar of this Court and the matter was listed for further directions and listing as an undefended matter if the father again failed to appear.

3. On the adjourned date, 20 May 2014, it was noted by a Registrar of this Court that the father again did not appear, and when the father was telephoned he advised the Registrar that he was not aware of the court event, did not wish to participate in the family law proceedings and would not attend Court. The matter was listed for undefended hearing on 21 July 2014, and the mother was directed to notify the father of the hearing and the consequences of his non-attendance. On 21 July 2014, when the father did not appear I directed that the matter be allocated a date for an undefended hearing by the list clerk.

4. The matter was listed for undefended hearing on 1 December 2014 before Foster J. On that date the father appeared in person. Orders were made for the preparation of a Family Report and it was noted that the father was seeking orders which would facilitate the restoration and resumption of his time with the children and that the father will seek legal advice in relation to a foreshadowed Application in a Case. No such application was filed by the father.

5. The father participated in the assessment with the family consultant for the purpose of the Family Report but subsequently did not attend the court event before me on 20 October 2015, and I again made directions for the matter to be allocated for an undefended hearing.

6. On 10 December 2015, when the matter was again listed for undefended hearing, the father attended Court, but was unable to proceed. The matter was adjourned for further directions to accommodate the father.

7. On 18 January 2016, the father attended Court and was assisted by an Arabic interpreter. It was made clear that the matter was adjourned to 12 April 2016 and that if the father had not complied with directions to file trial affidavits, the matter would proceed to be heard on an undefended basis.

8. On 12 April 2016, the father did not attend and the mother and ICL sought to proceed to hearing.

9. The father has inconsistently and superficially engaged with the proceedings. He was present in Court on 18 January 2016 and was aware that the matter would proceed to undefended hearing on 12 April 2016 if he did not comply with directions. This is at least the third time the matter has been listed for undefended hearing.

10. Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that:

    (1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.

    Note: The court may dispense with compliance with a rule (see rule 1.12).

    (2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.

11. Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[1], and to the principles for the conduct of child-related proceedings[2], in my view, it is in the best interests of children for the proceedings to be finalised and dealt with in the absence of the father.

    [1] [2014] FamCAFC 14

    [2] Set out in s 69ZN of the Family Law Act 1975 (Cth).

12. In light of the matter proceeding on an undefended basis, the father’s material will not be read.

Background

1. The mother was born in Lebanon, and moved to Australia in 1998 and became an Australian citizen in 2003.

2. The mother met the father in 2003 in Lebanon and the parents married in Lebanon in 2004.

3. It appears the parents initially lived in Lebanon, and the mother returned to Australia in early July 2005 and lived with her brother.

4. Soon after, in 2005, the parents’ eldest child, B, was born.

5. In October 2005, the father travelled to Australia and the family initially lived together with the mother’s brother. At some time before October 2007, the parents moved to their own accommodation.

6. The parents’ youngest child, C, was born in 2007. The maternal grandmother travelled to Australia shortly before C’s birth to assist the mother with the care of the children.

7. The mother says the parents separated in 2008, and initially separated under one roof. The parents and children travelled to Lebanon in May 2008. The mother says the reason for the trip was for the parents to finalise their divorce in Lebanon and for reasons associated with their extended family. The father returned to Australia in July and the mother returned to Australia with the children in October 2008. The father did not request to spend time with the children during this period.

8. During 2009, the father travelled to Lebanon from around May to June 2009. The mother and children travelled to Lebanon in May 2009. In August 2009, the mother was hospitalised for a few days after a motor vehicle accident in Lebanon. The mother and children returned to Australia on 26 September 2009. Upon arrival at the family home, the mother found that the father had thrown away the children’s clothes, some of her furniture and appliances.

9. After two incidents of violence on 13 October 2009 and 25 October 2009, discussed later in these Reasons, the father left the family home. The mother reported the incidents to police on 25 October 2009. A final Apprehended Domestic Violence Order (ADVO) was made in the mandatory terms on

   
   

   23 February 2010.

10. After the father left the family home, he would come to the family home from time to time and spend time with the boys in his car for around 10 minutes on each occasion.

11. In February 2010, the parents were divorced under Lebanese law.

12. In March 2010, the father requested the children’s birth certificates to “register” the children in Lebanon.  I understand this is required to obtain Lebanese passports for the children. When the mother refused, he told the mother that he would “send them to Lebanon no matter what”.

13. On 27 August 2010, upon the request of the father, the mother made the children available for overnight time. The father returned C after two hours and returned B the next morning, remarking that he would “never take the kids for a sleepover again”. The mother says the father has not requested to have the children overnight since then.

14. Between late August 2010 and November 2010, the father did not see the children.

15. The mother says that she was informed by the children that on two occasions in November 2010, when they were in the car with the father, he twisted each child’s penis. This issue of child abuse is discussed later in the Reasons.

16. The mother says that after she informed her brother of the children’s disclosures her brother arranged for the father to see the children when he was present at a restaurant.

17. After a conversation between the father and the mother’s brother in December 2010, in which the father stated that he would take the children to Lebanon to be raised by his family using Lebanese passports, the mother made an application to Suburb D Local Court for parenting orders. On 14 January 2011, orders were made in Suburb D Local Court placing the children on the Airport Watch List.

18. On 25 December 2010, the father attended the mother’s home to spend time with the children. During the visit, when B told the mother that the father punched him in the head, the mother argued with the father. The father threatened the mother in the presence of the children. The mother reported the incident to the police. On 1 April 2011 an order was made extending the 2010 ADVO for two years.

19. The children did not spend time with the father between December 2010 and February 2012.

20. On 9 September 2011 the mother married Mr E.

21. In February 2012 the father contacted the mother’s brother to spend time with the children. The father spent time with the children at the rear of the mother’s home.

22. In March 2012, the mother permitted the father to spend unsupervised time with the children in the local park. The mother says that when she was washing the boys, B disclosed that the father had pinched and twisted his penis. The mother says she did not report this to police due to the father’s threats against her in 2010 but decided that she would not allow the father to spend time alone with the children again.

23. The father did not spend time with the children between March 2012 and June 2013.

24. In June 2013, the father attended the children’s school. After the school principal spoke to the mother and assured her that the principal would be present, there would be security cameras and the mother could wait in another room, she agreed to allow the children to spend time with the father.

25. After mediation in October 2013, the mother agreed that the children could spend time with the father for half an hour each Sunday at a restaurant supervised by her brother.

26. The mother says that she also attended the first few visits between the children and their father. The mother says that she observed that the father spent most of the time on his phone and attempting to make the children speak to his parents. She also observed the father was very aggressive with the children and verbally abusive.

27. There were continuing issues with the father’s behaviour towards the children in December 2013, January/February 2014, discussed later in these Reasons.

28. On 3 March 2014 an interim ADVO was made for the protection of the children.

29. The mother ceased making the children available for time with the father after March 2014.

30. In May 2014, B commenced seeing a psychologist due to his disturbed sleep and angry and violent behaviour.

31. In 2014 the father married Ms F in 2014 and at the time of the Family Report, Ms F was expecting their first child.

32. In May and June 2015, the parties, their partners, the mother’s brother and the children attended upon the family consultant for the purpose of preparing the Family Report, which was prepared on 10 August 2015.

33. The father’s engagement with the court proceedings in late 2015 and 2016 is detailed earlier in these Reasons.

34. On 12 April 2016, the matter was listed for an undefended hearing. At the time of the hearing, the children lived with their mother, step-father and three half-sisters, G (aged four), H (aged three) and J (aged two).

The Areas of Dispute

Physical and verbal abuse of the children

1. In relation to the incident on 25 October 2010, the mother says B disclosed that the father had punched him in the head. The police records were not in evidence; however the family consultant records in her review of the subpoenaed material, that B told police that the father had hit him on the head. It is further noted that the father on the day conceded to hitting B on the head then later denied ever hitting his son.

2. In interview with the family consultant the father denied that he had hit B, grabbed B by the hand as he was getting out of car, and that B started yelling “leave me alone” as he was opening the car door. He became involved with police after he grabbed B’s arm and refused to leave the front of the mother’s home.

3. During the visit on 15 December 2013 the mother says the father spat in the children’s faces, which she reported to police.

4. On 22 December 2013 the mother says that she saw the father hold B on his lap very tightly. At the same time the father pulled C’s hand very hard and screamed at C while the child was crying. The mother says that she intervened and asked the father to let the children go as he was scaring them and that he could break C’s arm. The father screamed at the mother, said that he didn’t care and that the children needed to be disciplined. The mother also reported this incident to police.

5. The children spent time again with the father in January 2014. The mother says that before each visit the children cried that they didn’t want to go. She says that the boys would argue with the father, tell him to go away and that they hated him. The mother says the father started kicking the children, telling them they were animals and pigs and that he hated them. The mother says that when the children came back from their visits in February 2014, they complained of pain from the way he grabbed them, banged them on the seats or kicked them.

6. On 16 February 2014, Mr E attended the visit between the children and the father. Mr E says he saw the father grab C and hold him tightly. B told the father to leave his brother alone and the father responded to B that “[he doesn’t] want to see [him]” and to “go out of [his] face”. He heard the father call B an “animal” and “chicken” and “when you come to live with me I will show you how to be brought up”. Mr E says that he later saw the father first throw B and C up in the air and each boy said that he did not want him to do that. When the father continued to throw C up the air, B started to kick the father in the legs. While his view was blocked by the father’s body he heard B say “Don’t bite me” and the father started to kick B so that he would not cry.

7. The father told the family consultant that he had bitten B when B was “silly, naughty” as a form of “punishment”, though he denied leaving any marks or that B cried and denied that he had hit B.

8. The children and Mr E subsequently made statements to police on

   
   

   27 February 2014. The Magellan report records that on 3 March 2014

   …bail conditions are recorded and an interim Apprehended Domestic Order (AVO) stipulating that [the father] must not assault, harass, threaten or otherwise intimidate B or C and also must not approach or contact them was made.

   It is unknown what charges the bail conditions relate to.

9. In interviews with Community Services staff for the purpose of preparing the Magellan Report, B described the incident in February when he said the father had bitten him. B said that the father had thrown him up high [in the play area] and he was scared that he might break the room. He said the father was teasing him, had become angry at him and bit him.

10. When interviewed by Community Services, C said that his father calls him and his brother names such as dog and pig. He said that his father kicks chairs and tries to hit him and B.

11. Community Services were unable to contact the father in relation to the preparation of the Magellan Report. Based on their records and assessment they “concluded that [the father] poses a risk of harm to the children”.

12. In interview with the family consultant, B said that his father was “really bad to [him]”, that his father “was hitting [him] with shoes, and pinching [his] private parts” and “[his father] calls [him] animal names, donkey, chicken, dog, and spits at [him]”. C told the family consultant that the father calls them “donkey and chicken”, “kicks us on the my legs, spits at us in my face”.

13. It is noteworthy that when the family consultant observed the children with their father, the father became increasingly hostile and argumentative. The family consultant observed that

    Both [the father] and [B] when talking and challenging the other, mirrored the other, they lent forward, pushing their chins forward. [C] when he interjected also mirrored [the father] and [B] in mannerisms.

    …

    [C] appeared to be fearful of something happening to his brother during the initial stage of the observation, and was attempting to have his brother released by their father. While it could be interpreted as trying to engage in a game, his ongoing insistence and attempts to have [B] released at times he appeared to be fretting and anxious towards the later period [the father] had hold of [B].

1. I am satisfied that the father has been verbally abusive of the children. I am also satisfied that the father assaulted B on 25 October 2010, bit B on 16 February 2014 and was physically aggressive in his interactions with the children.

Family violence

1. On 13 October 2009 and on 25 October 2009 the mother says that she was assaulted by the father while they were separated but living in the family home.

2. On 13 October 2009, the mother says that during an argument the father slapped her across the face. The mother tried to push the father out of her bedroom and the father pushed her back and subsequently left. After the mother locked her door she heard loud bangs against the door and the next morning observed two cuts and damage on the door.

3. On 25 October 2009, the mother says that the father grabbed her and pushed her across the room into a large cardboard box that was lying on the floor, and punched and slapped her head. After the mother pulled herself off the box by grabbing his shirt, he pushed her against the door frame and told her he was going to paralyse her. The mother says that from the time the father pushed her into the box, the children were crying and hanging onto his leg.

4. The mother reported these incidents to the police on 25 October 2009. A final ADVO was made on 23 February 2010, with the father present in the Local Court.

5. The Family Report details that the father:

   …denied that he had instigated any physical violence, while in the relation with [the mother], which differs to statements he made to police (Sleeves 2 and 8). … [The father] said that during his relationship with [the mother] he had broken a door, because he was angry and kicked the door, which the children heard, and that he had raised his voice. Subpoena material from NSW Police (Sleeve 12) suggests that the father had been charged with malicious damage.

6. On 25 December 2010, the father came to the mother’s home to see the children. The mother says that she was in and out of the house to keep an eye on the children and after a short time she heard B crying. After B told her that the father had punched him in the head, she argued with the father about his treatment of the boys. The mother says that the father swore at her and made threats that he was “going to make [her] cry tears of blood”, “regret the day [she was] born” and “kill  [her]” and “take [his] kids away” in the presence of the children. After the father refused the leave, the mother contacted the police.

7. The mother made a statement to police and an order varying the existing ADVO was made at Suburb D Local Court on 1 April 2011, extending the period of the ADVO to two years. The father was present at the Local Court on that date, but it is unclear whether the ADVO was made by consent.

8. I am satisfied that the father intentionally damaged the mother’s bedroom door in October 2009 which caused her to be fearful and that in an incident on 25 October 2009 the father assaulted B.  I am also satisfied that the father assaulted and threatened the mother during this incident.

Sexual abuse

1. The mother says that in November 2010, the children disclosed that on two occasions when they were in the car with the father parked outside the home the father pulled down their shorts and took hold of each child’s penis and squeezed and twisted it.

2. The mother says that when she confronted the father and accused him of squeezing and twisting each child’s penis, he threatened to harm her if she spoke to anyone about it and told her it was a game.

3. The Magellan report indicates that reports were made in February and March 2011 that the father had physically assaulted B and pulled his penis. The reports were assessed by Community Services as not meeting the “risk of significant harm” threshold and the information was sent to the Community Services Centre working with the family.

4. After the allegations of sexual abuse in November 2010, the mother allowed the children to spend unsupervised time with the father (after being persuaded by her brother to do so). This is somewhat inconsistent with the mother’s protective behaviour in ceasing contact in early 2014.

5. In March 2012, after the father spent unsupervised time with the children the mother says that B disclosed that the father had pulled and twisted his penis. The mother says she did not report the disclosures at the time because of the father’s threats against her when she confronted him about similar allegations in late 2010.

6. In May 2012, the mother says that in a conversation with the mother’s brother, the father had threatened to kidnap the children from school. The mother reports these threats to police and in the course of her interview with police reported the disclosures in 2010 and March 2010.

7. The Magellan report indicated that in May 2012, a report was again made to Community Services that the children had disclosed that their father would ‘pull and twist their penises’. The Joint Investigative Response Team (JIRT) conducted an assessment into the allegations. It is recorded that:

   Both children made some disclosures, however he (sic) allegation of sexual abuse was not substantiated due to the children’s inability to provide any context and particularisation about the incident and the possibility of [Ms Elani] having told the children what to say. The children were assessed to be safe in the care of their mother and stepfather and the matter was closed.

8. A provisional ADVO was made on 2 May 2012, but appears to have been withdrawn or dismissed at Suburb D Local Court on 18 May 2012.

9. The mother says that after she reported the abuse the father contacted her and threatened to hurt her and her family, that he would “send someone to kill [her]” and that she would “regret it”. The mother says that due to her fear of the father she did not raise the issue again.

10. In interviews with the family consultant, B said that father had “pinch[ed his] private parts”. No other disclosure was made by B or C.

11. On the evidence available, I am unable to positively find that B or C were sexually abused by the father, though there is some level of risk to the children posed by their father on this basis.

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.

2. 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.

3. 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).

4. According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

5. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations: s 60CC(2)

1. The primary considerations (under s 60CC(2)) are:-

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. 

2. I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.

Benefit to the children in having a meaningful relationship with both parents

1. The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[3] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[4] and has also agreed with the reasoning of Bennett J in G & C[5].  Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.

   [3] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

   [4] (2007) FamCA 520

   [5] [2006] FamCA 994

2. The Full Court said in McCall & Clark (supra) at [117]:

   Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).

3. The Full Court in McCall & Clark (supra) continued at [122]:

   No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

4. The mother has been the children’s primary carer for their entire lives and it may be inferred that she is their primary attachment figure. It is not in dispute that the children share a meaningful relationship with the mother and will continue to do so.

5. The father has not spent time with the children since 2014 and the children appear to have a negative view of him. The father’s behaviour has done little to support the ongoing development of their relationship including his inconsistent presence in their life and his aggressive and inappropriate conduct. In the opinion of the family consultant, the father’s inability to recognise his role in the breakdown of the relationship with the children would suggest that it would be “unlikely their relationship will improve”. In these circumstances, there seems to be little benefit to the children by the court crafting orders to attempt to foster a relationship with the father.

The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence

1. As discussed above, I am satisfied that the father has engaged in family violence and verbal and physical abuse of the children.

2. The family consultant was of the opinion that the father appeared to have difficulty in accepting and acknowledging he had engaged in behaviour that is violent in his relationship with the mother and the children. In the opinion of the family consultant, his inability to recognise his problematic behaviour and failure to alter his approach to the boys could in turn place B or C at risk of psychological or physical harm should they spend time with him.

3. In interviews and observation with the family consultant, both children made a statement about killing themselves if they had to spend time with their father. However, neither child made efforts to leave the observation session; nor made negative comments to the family consultant after either occasion in which they spent with their father.

4. The father has disengaged from the proceedings and has made no proposal to engage a supervision service or to engage with a support service for people who engage in the use of various forms of violence which could provide a measure of safety for the children.

5. In these circumstances, an application of this consideration indicates that orders for the father to spend time with the children are not in the interests of the children.

Additional considerations: s 60CC(3)

1. Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of the children and factors underlying those views

1. While B is aged 10 years old and C aged nine, they both expressed very strong views.

2. In interview with the family consultant, B expressed that there was nothing about his mother that he wanted to change or did not like. C expressed that his mother was special because she loved him, and that there was nothing about her he did not like.

3. Both children were clear that they did not wish to spend time with the father and each made a statement about killing themselves if they had to spend time with their father. Each child made statements about their father’s behaviour towards them and to their mother to explain their negative views of the father. Given the children’s ages and the strength of their opinion some weight will be attached to their views.

Nature of the children’s relationship with each parent and other significant persons (including grandparents or other relatives)

1. The children share a loving relationship with their mother. Both children spoke positively about Mr E and in the family consultant’s opinion shared a reciprocal trusting relationship with Mr E.

2. As discussed earlier in these Reasons, the children have a very limited, negative relationship with the father. The children have no relationship with the father’s wife.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children

1. The mother has been the children’s primary carer their entire lives and appears to have made long-term decisions in relation to the children.

2. The father has been inconsistent in his engagement with the children. After separation he absented himself from their lives for significant periods.  The father has also been inconsistent in his engagement with these proceedings to determine the future parenting arrangements for the children. On 20 May 2014, it was noted by a Registrar of this Court that when the father was telephoned he advised the Registrar that he did not wish to participate in the family law proceedings. The family consultant detailed that during the assessment and observations the father said that he may just stop fighting to see the boys because it was hard on him.

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children

1. As the mother is the sole carer for the children, it is inferred that she fulfils her obligation to maintain the children. It is unknown whether the father pays any child support.

Likely effect of change in the children’s circumstances

1. If the orders are made as sought by the mother there will be no change in the children’s circumstances.

Practical difficulty or significant expense involved in spending time with and communicating with the other parent

1. There is no practical difficulty or expense associated with the orders sought by the mother.

Capacity of each parent and any other person (including grandparent or other relative) to provide for the children’s needs including emotional and intellectual needs

1. The mother appears to be caring well for the children’s physical, emotional and intellectual needs.

2. It is concerning however, that the children appear to have been exposed to adult conversations and conflict. For example, C told the family consultant that his mother told him that his father had “chucked” her in a box, while the boys were holding their father’s leg telling him not to hurt their mum and that he remembered this event when he was two years old.

3. In relation to the mother’s protective capacity, after the incident of February 2014, the mother acted protectively and ceased sending the children to spend time with the father and contacted police.

4. The father has engaged in aberrant behaviour which risks the psychological and physical wellbeing of the children. The family consultant is of the opinion that the father appeared to have difficulty acknowledging that he had engaged in behaviours that are violent with the mother and the children. After feedback and preparation by the family consultant, the father was unable to alter his approach to the children.

5. The father appeared to lack the capacity to reflect on the needs of the children, telling the children on more than one occasion during the Family Report observations that “your mum a trouble maker” and “your mum going to tell you she wants me in jail”. Such statements when the children are clearly attached to their mother and have not seen their father since early 2014, indicate little understanding of the needs of the children.

Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent

1. The children are of Lebanese background. The mother is seeking an order that the children be placed on the Airport Watch list to prevent them being abducted and retained in Lebanon by the father. Such an order will ensure the children will not suffer from the loss of their primary carer while continuing to enjoy their Lebanese culture and traditions in their mother’s household.

Attitude to the children and responsibilities of parenthood demonstrated by each parent

1. The mother has demonstrated a positive attitude to the children and the responsibilities of parenthood. She has effectively taken on the sole responsibility for their care and wellbeing. She appears to be engaged with the children’s school and engaged a psychologist to assist B and has spoken to the psychologist about C. Of some concern is the possible engagement of the children in the parental dispute. The mother has proposed an order that each party is restrained from denigrating the other party in the hearing of the children which may assist in relation to this issue.

2. The father has demonstrated a poor attitude towards the children and his responsibilities in his inappropriate and aggressive behaviour towards the children and the mother. He has also abrogated his responsibilities in his inconsistent and inactive engagement with the children and with the proceedings. It is noted that despite the father foreshadowing on 1 December 2014 that he would be seeking orders to spend time with the children, no application was filed. Further, the final hearing has proceeded on an undefended basis due to the father’s disengagement with the proceedings.

Family violence relating to the children or a member of the children’s family

1. This issue is discussed earlier in these Reasons.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children

1. In circumstances where the father has disengaged from the proceedings it is difficult to assess whether there is a likelihood of further proceedings in the future. It is desirable to provide certainty and finality to the children’s parenting arrangements. In my view, this factor is relevant in considering whether to make an order that the father spend no time and not communicate with the children, as sought by the mother. In the circumstances of this matter, making no orders in relation to the children’s time or communication with the father allows for some flexibility without instituting further proceedings.  However, as discussed later in these Reasons, in circumstances where the mother will hold sole parental responsibility, she may allow the children to spend time with the father on conditions that ensure the children’s safety and wellbeing.  Accordingly, little weight is attached to this consideration.

Parental responsibility

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

2. Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.

3. In Goode & Goode (supra) the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.

4. Where the Court is to determine parental responsibility, the starting point is s 61DA.  This section provides that 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.  The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).

5. The mother seeks sole parental responsibility for the children, which is supported by the ICL.

6. The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the mother must mean that she would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the father would have none of the duties, powers, responsibilities and authority with respect to the child.

7. Given my findings in relation to the father’s perpetration of family violence, the presumption of equal shared parental responsibility does not apply. Given the father’s abrogation of his responsibilities as a parent, the nature of the children’s relationship with the father and in circumstances that the children will live with the mother, it is in the best interests of the children in my view, for the mother to hold sole parental responsibility.

8. Given that I have decided that the mother is to have sole parental responsibility for the children, I need not turn to s 65DAA of the Act.

Conclusion

1. In considering each of the matters relating to the children’s best interests as required by the Act, I have attached particular weight to the primary consideration of the need to protect the children from harm. For the reasons given, I am also not satisfied that there is a benefit to the children in having a meaningful relationship with their father. Other weighty factors include parental capacity and the attitude to the children and responsibilities of parenthood.

2. Having regard to all of the factors in relation to the best interests of the children, I make orders in accordance with the mother’s Minute of Orders and as supported by the ICL.

3. The orders that I make are as set out at the forefront of these Reasons for Judgment.

I certify that the preceding one hundred and thirty three (133) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 5 September 2016.

Associate:

Date:  5 September 2016