AKBARI & AKBARI

[2019] FCCA 3752

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKBARI & AKBARI [2019] FCCA 3752

Catchwords:
FAMILY LAW – Parenting – child resistant to spending time with father – family violence – allegations of parental alienation.

Legislation:

Family Law Act 1975, ss.60CA, 60CC(2), 60CC(3), 61DA, 117(4)

Cases cited:

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Applicant: MR AKBARI

Respondent: MS AKBARI

File Number: MLC 10768 of 2010

Judgment of: Judge Hughes

Hearing dates: 24, 25 and 26 September, 12 October 2018 and 30 November 2018

Date of Last Submission: 30 November 2018

Delivered at: Canberra

Delivered on: 23 December 2019

REPRESENTATION

Counsel for the Applicant: Ms Davis

Solicitors for the Applicant: Lexicon Lawyers

Counsel for the Respondent: Mr Miller

Solicitors for the Respondent: Women's Legal Centre

Counsel for the Independent Children's Lawyer: Ms Mistry

Solicitors for the Independent Children's Lawyer: Legal Aid ACT

ORDERS

1. All previous parenting orders in relation to the child X, born in 2006, are discharged.

2. The mother shall have sole responsibility for the child.

3. The child shall live with her mother.

4. The child shall spend time with her father in accordance with her wishes.

5. The father may communicate with the child by telephone or Skype each Friday at 7.30pm or such other time as agreed between the child and her father, and the mother shall take all reasonable steps to facilitate such communication.

6. The mother shall forthwith obtain and maintain a mobile phone for use by the child in communicating with her father and shall provide the number of the mobile phone to the father within seven days.

7. The mother shall forthwith set up an email address for communication between the parties in relation to parenting matters only and shall provide the email address to the father within seven days.

8. The mother shall forthwith authorise and direct the principal of any school attended by X to provide to the father copies of all of her school reports.

9. Within 60 days the mother shall take all steps necessary to obtain for the X appropriate psychological or therapeutic services to support her to re-establish and maintain a relationship with her father.  For the purpose of this order:

   (a)each party shall make themselves and the child available to meet with the therapist as requested;

   (b)each party shall use their best endeavours to implement the reasonable recommendations of the therapist; and

   (c)unless otherwise agreed, the father shall pay the costs of the therapy.

10. Within 60 days the parents shall each separately engage the services of an appropriately qualified psychologist or other therapist to assist them to appropriately support the child’s relationship with her father.

11. Each parent may provide to their own therapist and the child’s therapist a copy of the following documents:

    (a)these orders and reasons for decision;

    (b)the report of Dr B dated 8 August 2018; and

    (c)the family report dated 15 May 2018.

12. Within three months of these orders, each party shall take all steps necessary to enrol in and complete a post-separation parenting course, preferably focused on the developmental needs of adolescents.

13. The father is restrained from attending at or approaching the mother’s home without the written agreement of the mother.

14. The father is restrained from bringing the child into contact with her paternal uncle, Mr C, or her paternal aunt, Ms D.

15. Each party is restrained from denigrating the other parent to or in the presence or hearing of the child.

16. The mother shall forthwith make arrangements for the child to meet with the family consultant, Ms E, or the independent children’s lawyer, Ms Mistry, or the two together, for the purpose of explaining the outcome of these proceedings to the child.

17. Each party is restrained from discussing these proceedings with the child except to explain the arrangements.

18. Subject to order 19 below, each parent shall make a contribution to the costs of the independent children’s lawyer in the sum of $2,960.

19. If either party objects to order 18 above, they shall, within 28 days, file and serve a financial statement and, in that event, the matter will be listed for argument in due course.

20. Otherwise, the appointment of the independent children’s lawyer is discharged in 28 days.

21. Apart from the issue of costs of the independent children’s lawyer, all extant applications are hereby discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

MLC 10768 of 2010

MR AKBARI

Applicant

And

MS AKBARI

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings in relation to the parties’ 12 year old daughter, X.  The father seeks orders requiring the mother to return X’s residence to Adelaide from Canberra and for X to ultimately live in an equal time arrangement with both parents or, if the mother chooses not to relocate to Adelaide, for X to live with him.

2. Orders were made in what was then the Federal Magistrates Court of Australia in January 2013, giving the mother sole parental responsibility and permitting her to relocate with the child from Adelaide to Canberra.  Notwithstanding those orders, the mother and child remained living in Adelaide for a further three years. 

3. In January 2016 the mother relocated to Canberra with the child without notice to the father.  Despite the child regularly spending time with her father between 2013 and 2016, she has spent almost no time with him since the relocation.  The father attributes this to the mother alienating the child from him.  The mother’s evidence is that X is strongly resistant to spending time with her father because of her own experience of him.  She says the child was content enough to spend short periods of time with her father in Adelaide knowing she (the mother) was nearby but refuses to spend longer periods of time with him.

Background

1. The father is a 40 year old health professional of Country F and Australian heritage.  He does sessional work for a private company in Adelaide.  In addition, he works as a health care professional for the Employer G, does some contract work for the Employer H and some casual work at Employer J.

2. The mother is aged 33.  She is of Country F heritage.  She worked in Adelaide as a public servant but has re-trained and is now a health care worker.  She married Mr K in 2017. Mr K is aged 23 and together they have a child, L, born in 2018.

3. Mr K is of Country M heritage but as a child lived with his mother in Country F after the death of his father.  He migrated to Australia in 2014 and is now a permanent resident.  He works as a factory worker, mostly doing evening shifts.

4. The mother and X live with Mr K, his mother, Ms N, and baby, L, in a three bedroom house in Canberra.  X has her own bedroom.  X attends year 6 at O School.  The mother is a health care worker and mostly works night shift.  She was on maternity leave at the time of the hearing in September 2018.  X is cared for by her step-grandmother while her mother and Mr K are at work.

5. The father has not re-partnered and has no other children.  He lives in a three bedroom house in Adelaide in which X has her own room.

6. The parties married in 2004 in Canberra.  It was an arranged marriage and the parties had met only a few times prior to their wedding.  Following the marriage, they moved to Adelaide.

7. X was born in 2006. 

8. The parties separated several times before the final separation in May 2012 when X was five years old.

9. The mother alleged extensive physical and sexual violence perpetrated on her by the father during the marriage and after separation.  I will return to those allegations shortly.

10. In May 2012 the mother unilaterally moved to Canberra with the child.  The father initiated proceedings in what was then the Federal Magistrates Court at Adelaide on 1 June 2012.  On 20 June 2012 the mother was ordered to attend Court in Adelaide with the child on 28 June 2012.  In compliance with this order the mother returned to Adelaide with the child and they commenced living in a refuge.

11. On 28 June 2012 interim orders were made restraining either party from changing the residence of the child from Adelaide and providing for the child to live with her mother.  The proceedings were then adjourned to the following day.  

12. On 29 June 2012 interim orders were made for the child to spend time with her father for two days and two nights each week, from Monday evening to Tuesday morning and from Friday evening to Saturday afternoon.  The parties complied with those orders.

13. The trial commenced in Adelaide in November 2012.  It was adjourned part-heard after certain adverse comments about the father were made by the presiding Federal Magistrate. 

14. On 23 January 2013 the trial was due to resume but, instead, final orders were made by consent which permitted the mother to move to Canberra with the child.  The mother was granted sole parental responsibility.  The child was to live with her mother and spend time with her father in accordance with any written agreement between the parents.  The father was permitted to communicate with the child by telephone or Skype three times each week.  The father was restrained from bringing the child into contact with his brother, Mr C, or sister, Ms D, and from assaulting, denigrating, abusing, or harassing the mother or allowing any other person to do so.  Both parties were restrained from physically disciplining the child.

15. The father said he consented to the orders because the Federal Magistrate indicated he did not believe much of the father’s evidence.  He said his counsel advised him to settle the proceedings and to agree with any orders sought by the mother.  His grant of legal aid for the trial had been terminated on the basis of the Federal Magistrate’s remarks which meant that, if the trial continued, he would have no legal representation.  The father said that, in those circumstances, he felt he had no option but to agree to anything the mother sought, which he did.

16. The mother, said she was also under great pressure at the trial which began in November 2012.  She said she had wanted to relocate to Canberra and wanted X to have less time with her father than what the interim orders made in June 2012 provided.  She said she was advised by her lawyers that the Court would never let her relocate and that orders would definitely be made for X to spend time with her father.  She said that, in those circumstances, she sought final orders in accordance with the recommendations of the family consultant which were for X to spend time with her father each week from Thursday after school until 5pm Saturday.  She did not seek orders permitting her to relocate with X to Canberra.

17. The mother was asked during cross-examination in the current proceedings why she changed the orders she sought between the beginning of the trial in November 2012 and its resumption in January 2013.  She said three things had caused that.  First, she had found out more information about the father’s family and the violence within it as a result of the evidence given in November 2012 and the subpoenaed material she viewed in January 2013.  She said this information suggested the father’s family was much more violent than she had previously understood.  She was asked what specific things she had discovered in the adjournment period.  She gave some examples.  Counsel for the husband took her to her trial affidavit relied upon in 2012 proceedings.  In that affidavit the wife referred to some of the same things.  She conceded during cross-examination that she had an inaccurate recollection of when she discovered that information.  She said she had not read that material for more than six years.  However, she insisted that during the adjournment she found out a lot more about the father’s family than she had known at the beginning of the trial.  Counsel for the father relied on this passage of evidence as undermining the wife’s credibility.  I do not consider the wife’s credibility significantly damaged by it.  Regardless of the reasons for the wife’s attitude changing, there was clearly a dramatic shift in the tone of the proceedings from when they began 2012 and when they concluded in January 2013.

18. The mother said the second thing that caused her to change the orders she sought between November 2012 and January 2013 was her lawyer telling her that, based on the evidence heard to that point, they believed that neither she nor X were safe in Adelaide and that she should relocate immediately.

19. The third thing was her lawyers telling her they believed the Federal Magistrate’s comments indicated the Federal Magistrate also thought she should leave Adelaide with the child.

20. The mother said she came to believe she could ask for the orders she always wanted which were for her to have sole parental responsibility, for her to relocate with X and for X to spend time with her father only in accordance with her wishes.  The orders made on 23 January 2013 reflected that amended application except that X was to spend time with her father in accordance with any written agreement between the parents rather than in accordance with X’s wishes.

21. Despite being permitted to relocate, the mother did not immediately do so.  She said this was because she had nowhere to live in Canberra. Her parents and two of her brothers lived in a three-bedroom house in Canberra and there was insufficient space for her and X to also live there long term.  She said her parents decided to build a second house on the block but that would not be completed until 2016. She said rental properties in Canberra were too expensive for her to afford.  She also had regular work in Adelaide as a public servant with sufficient flexibility to be available to care for X outside of school hours and there was no reasonable prospect of such work in Canberra.

22. The mother and X remained in Adelaide.  X spent frequent ad hoc time with her father, often for a few hours after school until the mother finished work.

23. The mother and X had been living in a women’s shelter since their return to Adelaide in 2012.  When the proceedings ended in January 2013 the mother was told she had to move out of the shelter.  She moved into community housing and then applied for a subsidised home loan for low income earners.  The application was successful and enabled her to buy a property in Adelaide.

24. In mid-2014 the mother began studying health care to improve her prospects of obtaining employment in Canberra.  She completed her studies in late 2015.  By that time, the second house on her parents’ property was nearing completion and she decided to relocate to Canberra.  She relocated with the child in January 2016 and did not tell the father.  She said this was because she knew he would object and she was worried he would prevent her from leaving.

25. The father commenced proceedings in this court in Adelaide on 5 May 2016.  He sought urgent orders requiring the mother to return with X to Adelaide and a recovery order in the event the mother failed to return the child.

26. On 14 July 2016 the mother filed a response seeking, amongst other things, that X remain living with her in Canberra.  She also sought an order that the child not be required to return to spend time with her father without her.  In support, the mother filed an affidavit consisting of three brief paragraphs which did little more than identify the age of the parties and the child.

27. The proceedings came before the Court in Adelaide on 26 July 2016.  The mother was required to file an amended response and a more substantial affidavit.  Orders were made for the father to have telephone communication with the child three times a week. 

28. In her amended application filed on 24 August 2016 the mother sought a transfer of the proceedings to the Canberra registry of the Court.  That order was made on 12 October 2016.

29. The matter was listed for the first time in Canberra on 30 November 2016.  The parties were ordered to attend a child inclusive conference with a family consultant on 23 March 2017.  The proceedings were adjourned to 7 April 2017 for mention or interim hearing.  Interim orders were made by consent providing for X to spend time with her father for several hours at a time on specified dates in December 2016 and January and February 2017.  Orders were made (not by consent) for the child to also spend most of the day with her father on 11, 12 and 13 January 2017.  Handover for all visits was to occur at the P child contact centre unless otherwise agreed.

30. An independent children’s lawyer was appointed on 16 January 2018 by order in chambers.

31. Ms Q, family consultant, conducted the child inclusive conference on 23 March 2017.  I will return to it in detail later in these reasons.  In summary, however, Ms Q said in the memorandum dated 30 March 2017 that, in light of X’s anxiety, it was difficult to conceive of any arrangement for her to spend time with her father which would not have a detrimental effect on her psychological wellbeing.  She said X also experiences telephone contact as distressing and that it should be restricted to only once or twice a week.

32. On 7 April 2017 the parties were ordered to take steps to identify an appropriate child psychologist or other expert to undertake a therapeutic process to address any anxieties the child felt about spending time with her father and to support the re-establishment of her relationship with him.  The proceedings were listed for final hearing for three days on a date to be advised and a family report was ordered.  The proceedings were otherwise adjourned to 10 May 2017.

33. On 10 May 2017 no substantive orders were made apart from an order permitting the parties to provide to any therapeutic counsellor a copy of the memorandum of Ms Q and the orders of 7 April 2017.

34. The parties appointed Dr B to undertake the therapy.

35. Hearing dates of 7 to 9 May 2018 were administratively allocated.  On 8 February 2018 those dates were vacated because the mother was due to give birth within two weeks of the hearing date.  The proceedings were adjourned to a further date to be advised for hearing.

36. The family report by Ms E, family consultant, was released on 16 May 2018.

37. The proceedings were again listed for final hearing on 21 to 23 August 2018.  Those trial dates were vacated on 20 August 2018 because the mother’s two-month-old baby (who was fully breastfed) had been hospitalised since 18 August 2018, was in the intensive care ward and was most unlikely to be released by the time the trial was due to begin.

The trial

1. The trial finally commenced on 24 September 2018.  Counsel for the father became ill on 26 September 2018 and the proceedings were adjourned part-heard to 12 October 2018 when all of the evidence was completed except for that of the family consultant.  The trial concluded on 30 November 2018.

2. Both parties gave evidence and were cross-examined.  Ms S swore an affidavit in support of the father but was not required for cross-examination.  The mother’s husband, Mr K, gave evidence in support of the mother and was cross-examined.  The family consultant, Ms E, was also cross-examined.

3. The central issue in the trial was whether the child’s reluctance to spend time with her father was borne of her own experience of her father or from a lack of support by the mother for that relationship (for good reason or not), or some combination of both.

Allegations of physical violence

1. When the parties married, they lived at various times with the paternal grandfather and separately with the paternal grandmother.

2. The mother said that, while the parties were living with the paternal grandfather, the father made a number of threats to her to the effect that he would kill her before he divorced her.  She said the father’s behaviour was encouraged by his own father as she heard him advising his son in early 2006 that it was important to be strict with Country F women, otherwise they will leave.

1. The mother said the first incident of physical violence she recalled occurred about two months after the parties’ wedding in 2004.  She said they were at that time living with the paternal grandmother.  She said the father became angry with her and grabbed her dupatta[1] and held it tightly around her throat until she felt dizzy and could no longer feel her legs.  She said a similar incident occurred on another two occasions between 2004 and 2012 although she does not recall the dates.  She said there were other occasions when he choked her with his hands rather than with her dupatta.[2]  The husband denied ever choking the mother.

   [1] The mother described the dupatta as a long scarf worn as part of traditional Country F clothing

   [2] Transcript 25 September 2018 at page 199

2. The mother said the father assaulted her on numerous occasions throughout the relationship.  She said he regularly punched and slapped her and, in 2006, when she was pregnant, he punched her in the face with such force that it left a bruise on her eye.  She said she took a photo of the bruise and saved it on the computer but, when she subsequently tried to find it, it was gone.  She said she and the father were the only ones who used the computer and she surmised he deleted the photo.  She said she often had ringing in her ears after the father slapped her across the face.  The father denied all these allegations.

3. The mother alleged that, between 2004 and 2006, she sometimes left the house to get away from the father’s violence.  She said that, often, when she came back the father would refuse to let her back into the house or back into the bedroom.  She said she sometimes slept in the laundry and, once, slept out on the street.  The father agreed the mother sometimes left the house during an argument but denied ever locking her out of the house.

4. The mother alleged the father regularly took her bankcard out of her wallet and spent her money.  She said this occurred on a weekly basis until the parties’ final separation in 2012.  She did not ever tell him not to do that as she said she knew it would cause a fight that would end with him assaulting her.  The father said he had never taken the mother’s bankcard without her permission.  He said each party used the other’s bank cards from time to time but only with their consent.

5. The mother had an unplanned pregnancy in 2005.  She said the father said they could not afford to have a baby because he wanted to study.  She said he insisted she have an abortion and drove her to the clinic.  She said she had the termination because she felt she had no choice.  The father said the parties made a mutual decision to terminate the pregnancy. 

6. The mother alleged that in 2006 when she was seven months pregnant with X, the father pushed her hard, causing her to fall onto her stomach on a pile of suitcases.  She said he then disconnected the landline at his mother’s home so she could not call for help and she had no access to a mobile phone at that time.[3]  The father said he may have pushed the mother away from him if she was hitting or punching him or acting abusively towards him but did not recall her ever falling onto any suitcases.  He denied restricting her access to a telephone.

   [3] Mother's affidavit filed 9 August 2018 at paragraphs 41 and 48

7. The mother alleged that in 2006, a month after X was born, a serious incident occurred.  She said she was walking down the hallway of the paternal grandmother’s home carrying X who was only a few weeks old.  She said the father shoved her violently, punched her in the eye and kicked her, causing her to fall over.  She said the baby’s head almost hit the wall as she fell.  The mother said this was the first assault she reported to police because she was so worried about the baby.  She said the South Australian child protection service became involved and recommended she leave Adelaide.  She said she went to Canberra for a few months and stayed with her family but the father eventually convinced her to return to Adelaide.  She said he also persuaded her that the child protection authorities might remove the child from her care if she made further reports to them or to the police.  She said this discouraged her from contacting them again.  The father denied these allegations although he agreed the mother went to Canberra without notice to him.  He said he obtained a recovery order to compel her to return to Adelaide with the child.  The mother said she returned voluntarily on this occasion and the recovery order was later.  Given the dates, I accept the mother’s evidence about this.

8. The mother was cross-examined about this incident.  She was asked how certain she was that the alleged assault occurred in 2006.  The mother said she could be mistaken about the date but she is certain it was when X was only one or two months old.  As the evidence unfolded it became apparent that there were two violent incidents in late 2006 and early 2007 and that the mother had confused the details of each. 

9. It was put to the mother that in early December 2006 her mother-in-law took her to the hospital because she thought she had postnatal depression because she was crying all the time.  The mother stayed in hospital overnight.  The mother agreed her mother-in-law took her to the hospital around that time but said she was crying because of a fight with the father.  The mother was taken through the notes of the Region T Health Services which became exhibit F11 in the proceedings.  It was put to the mother that nowhere in the six pages of notes made on 8 December 2006 does it record the mother reporting the father being violent.  On the contrary, there is a note which reads as follows:

   Came in because of depression – crying a lot – feeling depressed – long time.  Was feeling better but had a fight with husband (verbal) not physical yesterday but "If he hits me I hit him back" ("my dad was never like that").

10. The mother agreed she said the things quoted.  She agreed she did not accuse the father of assaulting her.  She said that was because the father was studying and she did not want to ruin his career.  She also pointed out that, in the hospital notes, immediately under the comments quoted above, her mother-in-law's name and phone number is recorded.  She said her mother-in-law was with her during the interviews which had a constraining effect on what she said.  She said the husband had definitely pushed her over while she was holding the child and she was crying a lot because she had really believed he would change once the baby was born, but the incident persuaded her he would not.  The mother was diagnosed with postnatal depression at that time.  The mother’s evidence about this was compelling.

11. There are other aspects of the notes from Region T Health Services which are consistent with the mother's narrative of a violent incident occurring prior to contact with the health services.  On page 3 of the exhibit there is a long narrative which includes the following:

    21yo Country F lady in an arranged marriage with 4/52 old ♀.  Husband abusive to Ms Akbari & baby.  Ms Akbari S/B GP who wanted to prescribe antidepressants but husband refused to allow Ms Akbari to take any antidepressants.

    BIB mother-in-law who was very supportive…  Has vegative features of depression.  Is frightened husband will hurt baby.  Suggested U House & would like to go there for assistance.  Has planned to go to stay with x 2 brother who live in Canberra if not able to get admission.

12. U House is a facility in Adelaide for infants and mothers with mental health issues.

13. In another part of the notes, further information about the mother's personal history is recorded.  It records difficulties described by the mother in having to look after her 75-year-old father-in-law and another of his sons, with whom the couple lived.  She described her father-in-law calling the police over trivial issues such as a missing dog lead and her father-in-law threatening her through text messages.  It records the mother saying "…  she was called a ‘fucking bitch’ words she has not heard before".[4]  The mother said in evidence that these complaints were about the behaviour of her brother-in-law, not her father-in-law.

    [4] Exhibit F11 at page 5

14. On page 7 of the exhibit is the following note:

    Discussion with Ms Akbari about conflict in her life – she is on one hand not in agreement with the prospect of separation or divorce, on the other hand she is finding the present abusive relationship untenable.  Indicated to Ms Akbari that she needs to resolve these issues, that she could be called upon to make unpalatable decisions and she needs to communicate effectively with her supportive biological family.

15. I am satisfied on the basis of these notes that the mother communicated to the hospital staff that the father was abusive, that she felt highly conflicted about what to do and that her family in Canberra were very supportive of her.

16. The husband's mother drove the mother to the airport on the afternoon of 8 December 2006 and the mother flew to Canberra.

17. The next day, 9 December 2006, a notification was made to ACT Child and Youth Protection Services (CYPS).  An assessment was carried out by CYPS.  The report of the assessment was tendered in evidence as exhibit F13.  The notifier is not identified but from the context it appears to be the father.  The notifier said they were worried about the baby because the mother simply got on a plane and left with the four week old baby.  They reported the mother was emotional for no reason and was saying things including that she would leave the country.  The notifier said the mother had said a few times that she would do something to harm the baby, although the notifier did not think she was serious about that.  They reported the mother had suffered mental health problems in the past.

18. CYPS officers telephoned the mother's brother who said the mother had been depressed in Adelaide but was doing well and would return to Adelaide when she is better.  A conversation then occurred between the CYPS officer and the mother.  The mother said she had been admitted to Region T Hospital in Adelaide for one night.  She said she had been going through a lot, but did not want to expand on that comment.  She was given a range of contacts for support services.

19. Next, CYPS staff spoke to the paternal grandmother who confirmed she had taken the mother to Region T Hospital and knew the mother was going to Canberra the following day.  She said she had been worried about the mother as she seemed to have postnatal depression.  The grandmother reported that the mother was getting on well with the baby and she did not have any concerns for the baby in the mother's care.  She confirmed that the mother needed to get out of the situation she had been in because she and the father had been fighting and the arguments had been getting worse in recent times.  She confirmed there had been one incident where the parties were physical with each other but otherwise the arguments were verbal.  In answer to a specific question, the grandmother said she did not know anything about the mother making threats to harm the child.  She said the mother had been breastfeeding and that had been going well and she, the grandmother, did not think the mother would harm the child.

20. The grandmother’s account, as recorded in the notes, contradicts the report by the unidentified notifier on 9 December 2006.

21. The CYPS officers then spoke to the mother's GP who said he had observed positive interaction between the mother and the child and believed the mother was very competent in caring for the child.  He said she was suffering a severe relationship stress and had some difficult issues to resolve about the marriage.  He stated he thought the mother's problems were situational rather than the result of postnatal depression.  He said he understood the paternal grandmother helped the mother go to Canberra without the father knowing.

22. The CYPS assessment concluded that there was likely to have been domestic violence between the parties that was mostly verbal but, on at least one recent occasion, had become physical.  CYPS assessed the paternal grandmother as a protective factor for the mother because she helped her go to hospital and to Canberra.  It was noted the mother has family in Canberra who are supportive of her.  CYPS concluded that no further action was required.

23. On a date which is not clear on the evidence but seems to be late December 2006 or early 2007, the mother returned to Adelaide and resumed her relationship with the father.

24. The South Australian Department of Families and Communities had contact with the family in early February 2007.  The intake form at that time became exhibit F12 in the proceedings.  It indicates the mother had returned to Adelaide after the father went to Canberra, apologised for his behaviour and she agreed to return to the relationship.  However, in early February 2007 the mother left the father again after an incident in which she was hit by the father while she was holding the baby.  It was reported that the parties had argued over how to deal with the child who was unsettled.  The father wanted to take the child but the mother refused to hand her over because the father was agitated.  The father then pushed the mother, who fell off balance and the baby's head nearly hit the wall.  According to the report, the mother became angry with the father.  The father then punched the mother in the eye and kicked her while she was still holding the baby.  The baby was not physically harmed.  The mother took the baby and went to stay at the home of her father-in-law, but this resulted in further problems because her brother-in-law, who also lived at that address, became aggressive and verbally abusive towards her.  The notes indicate the mother and baby were assisted by the crisis response unit who placed them in alternative accommodation.  She was referred to a domestic violence service.  It appears from the notes that the mother contacted police about the incident involving her brother-in-law.  The police attended.  They did not take any action but made contact with the Department.

25. The notes contain a long narrative of an interview of the mother by two social workers from the Department on 20 March 2007.  Part of the narrative was as follows:

    Ms Akbari stated she had been fighting with Mr Akbari since they were married in 2004 and it had only recently become violent.  Ms Akbari stated she did not want to get her husband into trouble but confirmed they had fought prior to her recently leaving him and he had pushed her while she was holding the baby and the baby had nearly banged her head.  Ms Akbari also confirmed she was punched in the face by Mr Akbari while holding the child.  Ms Akbari stated the baby was crying after this incident and added they had fought on this occasion as the baby was crying and they were stressed.  When asked how often they fought Ms Akbari said at least weekly.[5]

    [5] Exhibit F12 at page 4

26. It seems from these notes that this is the incident the mother had said occurred in December 2006.

27. At the time of the interview with the Departmental workers, the mother was living in a shelter with the child.  She told the social workers that she wanted to get an apartment through the shelter and eventually have her husband move in with her because, in that way, she could control the lease and make him leave if necessary.  She was advised that the accommodation provided by the shelter was for women leaving violent relationships, and not for women who intended to return to the relationship.  There was a discussion about where else the mother could go as she could only stay in a shelter for one more night.  She said she could go to Canberra, but also expressed some desire to reconcile with her husband "for the baby".  The notes indicate the social workers explained research about the risk of developmental delays for babies who witness domestic violence and that, if the mother returned to the relationship, the Department would need to consider the possibility of the child being removed from her and the father's care.

28. The result of the investigation by the Department was recorded as follows:

    As mother has provided details around the abuse and the husband's mother has informed the V Medical Centre there is a history of verbal and physical violence the outcome is assessed as Abuse Confirmed.

29. The mother was taken through the Departmental notes during cross-examination.  She said she could not now recall the father punching her in the face, and that all she remembered was the child's head nearly hitting the wall.  She also said she did not remember the social workers telling her there was a possibility that X could be removed from her care if she returned to the relationship.  She said she remembered the father telling her that.  She said he told her about how the children of Aboriginal people were taken and that the same thing could happen to her if she kept complaining to the Department or anyone else about him.[6]  The mother said she returned to the relationship and remained fearful that the child might be removed.  She said "… I stayed quiet because I didn't want my daughter to be taken from me, and I thought, ‘okay, this is it.  I have to live with this man with his violence and my daughter’."[7]

    [6] Transcript 12 October 2018 at page 411

    [7] Ibid at page 412

30. It was put to the mother that the father subsequently contacted the Department and said the allegations made by the mother were not true.  The mother said she could not remember how it came about, but could recall social workers from the Department coming to the house and the father being present while she was being interviewed, so she was unable to speak freely. 

31. It was put to the mother that the social workers asked her whether she stood by her earlier statements and that she replied that she may have exaggerated her allegations.  The mother agreed that she would have said something like that.  The father’s Council suggested to the mother that she exaggerated in order to get emergency housing.  The mother vehemently denied that.  She said she was trying to ensure the social workers would not take her daughter from her, because she had nowhere else to go.  She was asked what, specifically, she exaggerated.  She said she could not actually recall saying she exaggerated, but accepts that she may have.  She said she would have been referring to all of her allegations.  It was put to her that the exaggeration to which she referred was her statement that she had been punched by the father while holding the baby.  The mother responded strongly as follows:

    No, that was not exaggerated.  I swear.  I can swear on anything, that was not exaggerated.  That was true.

32. The mother was reminded that moments earlier she had said she did not remember the husband punching her.  She was taken to paragraph 42 of her trial affidavit filed on 9 August 2018, in which she said that the father had shoved her violently, punched her in the eye and kicked her causing her to fall over, almost banging X's head on the wall.  She said that she believed she had mistakenly recounted two events as one incident in the affidavit, when they were in fact separate incidents.  She said there were many fights in the corridor of their home and that this is where both incidents occurred.  She confirmed that the father punched her in the eye but not while she was holding X.  She confirmed he pushed her over, almost causing the child's head to hit the wall.

33. She said she would have told the Department she exaggerated in order to prevent them taking the child from her.  She said the report she made to the Department a few days after the incident would be more accurate than what she is now recalling because she cannot precisely remember the details.  She said "The punch was a common thing".[8]  She then said the following:

    Okay, you know – when – actually, when there is, like, lots of hitting, punching, kicking – all these things happening – all these years, like, you know, happening, happening – you don't remember all of that, like, every single time he hit me, punched me.  I remember that eye one when there was a picture taken on the computer – he deleted it.  Otherwise I would have actually brought it here and shown it to you guys – then I think you would have trusted me.  But it was such a, like, an everyday thing.  Not everyday thing but, like, very normal.  It was, like, a normal thing happening to me.  So, for me, punch in the face – kick – that was not, like, something that I would remember, like, every small single thing of it.  But the head – X's head nearly missed was something very big for me…".[9]

    [8] Transcript 12 October 2018 at page 417

    [9] Ibid at page 416

1. Again, the mother’s evidence about these incidents was compelling.  I am satisfied the mother was physically assaulted by the father in late January or early February 2017 and that during the assault the father pushed the mother while she was holding the child, causing her to fall over and the child's head came close to hitting the wall.  I also find that, on another occasion, the father punched the mother in the eye causing a visible injury which was photographed by the mother.  I accept the mother’s recollection of the precise details of what occurred on any particular day is hampered by the passing of time and by the frequency of the father’s violence at that time.  The father's general denial of these incidents did not diminish the weight of the mother's evidence.

2. The mother said another serious incident occurred in about June 2011 while the parties were living temporarily in Perth for the father to undertake postgraduate studies.  She said the father threw her onto the ground during an argument and kicked her repeatedly all over her body.  She said X, who was aged four, was present and screamed at her father to stop.  The mother said the father took her mobile phone after the incident and went to bed.  She and X slept in the lounge room.  The next morning she and X caught a train to the airport, flew to Adelaide and then went to stay with the mother’s family in Canberra for a month.  The father vehemently denied the assault occurred.  He said he could not recall whether he took the mother’s mobile phone from her or whether she and the child slept in the lounge room.[10] The parties subsequently reconciled and continued living in Perth that year.

   [10] Transcript 24 September 2018 at page 76-77

3. The mother alleged that in about May 2012 when they were living in the home of the paternal grandmother, the father assaulted her three times in two weeks.  She said the first two times he pushed her violently into a wall and, on the third occasion, he punched her on her arms, kicked her on her legs and grabbed her by the throat, strangling her.  She said he did this in front of X and the paternal grandmother and either she or the paternal grandmother called the police.  By the time the police attended the father had left the house.  She said the paternal grandmother gave a statement to police but she chose not to.  She said the police advised her she should leave because it was not safe for her to stay.  No police incident reports were tendered in relation to this incident.

4. The mother said the father came back to the house later that night and banged on the doors and windows.  She and the paternal grandmother refused to let him into the house but he broke in through the roof.  The mother said she and the paternal grandmother stayed with X in one room and kept the door shut.  She said she was unable to call the police because her mobile phone battery was flat.  She said the father remained in the house overnight but left early the next morning.  The mother said this is when she made the decision to permanently end her relationship with the father.  She left Adelaide shortly after the incident and relocated to Canberra with X.  The father commenced the first proceedings following this incident. 

5. The father denied the mother’s allegations about the May 2012 incident.  He said he recalled a different incident that occurred around that time in which the mother followed him around, hitting him on his back and shoulders and verbally abusing him.  He said he had subsequently asked his mother whether she called the police at that time and she denied having done so.  The evidence of the paternal grandmother is unavailable as she died prior to the commencement of the proceedings.

6. In the memorandum following the child inclusive conference in March 2017, Ms Q recorded the father denying all of the mother’s allegations of violence and saying the mother has “no evidence”.[11]  The mother’s counsel suggested to the father that this meant he would admit nothing because he knew it was the mother’s word against his and therefore it could not be proved.  The father said he could not recall what he told Ms Q but conceded that Ms Q was unlikely to have made it up.[12]

   [11] At paragraph 20

   [12] Transcript 24 September 2018 at page 37

The assault of the paternal grandfather in April 2012

1. In April 2012, a month or so before the mother relocated with X to Canberra, X witnessed a violent altercation between her paternal grandfather and paternal uncle, Mr C, as a result of which the uncle was charged.  Neither parent was present during the incident but the father arrived at the grandfather’s home shortly afterwards.  The grandfather was hospitalised following the incident.  He died four months later following a series of strokes.  The mother said she did not know whether or not his death was directly connected with the assault but was aware he suffered serious injuries as a result of it.  The mother said X has memories of the incident and still talks about it from time to time.

2. The father’s evidence about this incident was unsatisfactory.  Initially, he tried to avoid answering questions about it by saying he was not present and did not know what X witnessed.[13]  He said he believed X has memories of the incident only because her mother reminds her about it.  He said he made few enquiries about the incident at the time because he just wanted to make sure “everyone was okay” and to move on with his life.[14]  This was unconvincing.  Everyone was not “okay”.  Both his brother and father were injured, his father was hospitalised and later died, and his brother was charged with criminal offences arising from arising from the incident.

   [13] Ibid at page 38

   [14] Transcript 24 September 2018 at page 51, 107

3. The paternal grandmother was present during the incident.  The father said he did not ask her about what happened until 2018 and only then because he knew someone was going to ask him about it during these proceedings.[15]  He must also have expected to be asked questions about the incident during the trial in November 2012.  The father said his mother told him that she removed X to a different room immediately the fight began.  The father agreed that he had tried to persuade the child that she had seen tomato sauce rather than blood on the day of the incident.  He conceded that this meant the child did actually see blood, which means she probably saw some of the violence.  He then said she may have been told about it rather than seeing it herself.  The father agreed that his mother was likely to have been very distressed about what was happening at the time and she may well have been screaming at the two men to stop fighting rather than immediately whisking the child away.  He conceded that any part of the incident seen by the child, including her grandmother’s distress, would have been very frightening for X who was five years old at the time.

   [15] Transcript 24 September 2018 at page 107

4. The mother said she worries about X being brought into contact with the paternal uncle and does not believe the father’s statements that he has severed his relationship with his brother.  The mother also expressed concern about the father’s sister, Ms D.  She said she was told by the paternal grandmother in about 2010 that Ms D suffers from schizophrenia.  She said that in late 2011 Ms D contacted her and made a graphic threat to sexually assault X using a glass bottle.  The father said he currently has a restraining order against his sister, has not brought X into contact with either of his siblings for several years and has no intention of doing so in the future.

Allegations of violence post-separation

1. After the parties’ separation in May 2012, the mother and child moved to Canberra.  When required by a court order to return to Adelaide, they lived in a refuge.  This gave the mother slightly more control of her dealings with the father because he was unable to attend the refuge.  She said the overt physical violence ceased at that time and he no longer hit, slapped or punched her but he began to sexually assault her.  She said that when she first returned, she took X to her father’s house for a visit.  She said he came out of the house and touched her in a sexually inappropriate manner.  She told him he needed to stop that behaviour but he responded “I’ve touched you now.  What are you going to do?”  The mother experienced this as the father communicating to her that he still had control.  She said she became upset, cried and then left.  After that, she insisted that handovers occur at the police station rather than at the father’s home.[16]   The mother’s evidence about this incident was not challenged but the father had little opportunity to challenge it because the evidence was given in answer to a question in cross-examination and was not in the mother’s evidence in chief. 

   [16] Transcript 12 October 2018 at page 289

2. The mother said the father then began to have sexual intercourse with her without her consent.  She said the first time this occurred was in 2013 after she rang him for assistance when she had a flat tyre.  She said the father fixed the tyre then insisted they go for a drive.  X was not with them.  She said he forced himself on her sexually in the car despite her protests.  She said she was still living in the refuge at the time.[17]

   [17] Transcript 25 September 2018 at page 213

3. The mother said she had to keep having contact with the father because she had no other support in Adelaide and relied on him to pick up X from after school care and look after her for an hour or so until she finished work or study.

4. The mother subsequently moved from the refuge to community housing and then into the house she purchased in 2013.  She said the father discovered where she was living by following X home from school.  He then began coming to the home uninvited.  She said he would sometimes simply park in her driveway for hours at a time.  At other times he followed her and X into the house, whether invited or not.  She said that, on many occasions, he turned on the TV and told X to watch it because he and the mother had to talk about something important.  He then took her into the bedroom and forced her to have sex with him.  She said she struggled and tried to get away but he overpowered her.  The mother said she never consented to sexual relations with the father after separation in May 2012.  She also never reported the sexual assaults to the police.

5. It was put to the mother that she was voluntarily engaged in a sexual relationship with the father after 2012.  The mother denied that.  She said that, even before the separation in 2012, she did not enjoy having sex with the father because of his violence towards her.  She said it was hard for her to feel affectionately towards him when, often, he had hit her only a few hours earlier. 

6. The father denied ever having sex with the mother without her consent and said he was offended by the suggestion.  He said the parties had a sexual relationship because their relationship continued, on and off, between May 2012 and January 2016.  He said that, from May 2012, the mother arranged for him to see X but, when she lived in the shelter, she would arrange somewhere else for him to visit.  He said that after leaving the shelter, the mother and X lived for most of the time in a property the parties rented together. He said that when the mother her purchased in 2013, she repeatedly invited him to live in that property but, other than a period of about two months, he did not stay there.  He said the mother threatened to not let him see X if he did not move in. Given the weight of the evidence to the contrary, I do not accept this. I am satisfied the mother deliberately maintained separate accommodation after 2012 and did not want the father to live with her.

7. It was put to the mother during cross-examination that she and the father effectively resumed their relationship after the final orders were made in the mother’s favour in January 2013.  The mother denied that.  She said she wanted X to have a relationship with her father and she and the father developed a reasonably cooperative arrangement in which the father regularly cared for X after school until the mother finished work.  She said the father sometimes stayed for dinner at the mother’s home after bringing X home.  She said X never stayed overnight with her father at this time.  The mother said the parties occasionally had coffee together at his workplace where the father worked and the mother sometimes worked as a public servant.  She said that on one occasion the father showed her and X around his work place.  The mother insisted, however, that the marital relationship did not resume.

8. The mother was cross-examined about a text message she sent to the father in 2013.  The message was not tendered in evidence but was read to the mother during cross-examination.  It read as follows:

   And when did I do that?  We have been through a lot, last two years.  I never asked you for help, and I did not want to get back into this relationship.  You are the one.  Decide what you want, because I still want to quit and start a new life, a better life.[18]

   [18] Transcript 25 September 2018 at page 211

9. It was put to the mother that her text message clearly acknowledged that she was in a relationship with the father.  The mother said the message had to be read in context with other messages at that time and that what she was saying to the father in the message was that she did not want to be in a relationship with him and that he was forcing the relationship on her. 

10. The mother ultimately acknowledged the marital relationship did exist in some respects but said that was because the father wanted it and forced himself on her, rather than her voluntarily participating in it.  She said that before she was divorced, she also felt conflicted because she was still married to the father legally and religiously and he, her parents and her siblings all had expectations of her as his wife. She said she came to accept the reality of her situation, which involved the father being in her life and having sex with her.

11. It was put to the mother that she had many opportunities to make a report if she was being sexually abused but did not do so.  The mother said in response:

    I don't know if you're saying I'm lying or something, but this sexual abuse became a part of my life.  It was like an every day, normal thing for me.  So I didn't want to go around in the streets telling my neighbours that my – this person is here, and going to the next door neighbour or school.  I don't like doing that.  So it was happening, and I was accepting it, and I was thinking, okay, this is my life, like – like, verbal, physical abuse, him degrading me, calling me… For the whole entire marriage, putting me down, calling me bad names, like, you know, a cast that I am.  Like, all these were – all these things.  So that was all normal for me.[19]

    [19] Transcript 25 September 2018 at page 233

12. The mother said that, even when she moved to Canberra and was obtaining advice from the Women’s Legal Centre, she did not feel comfortable about telling them about the sexual abuse.  She said she thinks she did not mention it in her first affidavit.

13. The mother was shown another text message she sent the father that did not come into evidence and was not read onto the record.  It was put to her that this was an affectionate message about the couple having sex and did not suggest coercion.  The mother conceded that characterisation of the message.  When asked later about it she said “I am a human being”. 

14. I conclude on the basis of that evidence that the mother’s statement that she had never voluntarily had sex with the father after May 2012 was not true.  I am satisfied the mother had an ambivalent attitude to her relationship with the father up to mid-2013 and that there were times when she felt more positively towards him and accepted his sexual advances.  However, I also accept her evidence that she felt she had no choice about being in the relationship and felt she had to accept it on the husband’s terms.

15. In civil proceedings, the standard of proof is the balance of probabilities.  However, this does not mean that the court simply finds that one state of affairs is more likely than another.  The more serious the allegation, the greater the sense of certainty the court must have before making a finding.[20] Despite the mother’s false statement that she had never agreed to sex with the father after May 2012, on the evidence I am satisfied to the requisite standard that there were occasions after 2012 when the father sexually assaulted the mother by having sexual intercourse with her without her consent and knowing she did not consent.

    [20] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

16. In June 2013 the mother accessed the father's Facebook account and discovered his communications with a woman named Ms W when the parties were living in Perth in 2011.  She agreed during cross-examination that she became extremely angry and upset about that.  She agreed that she sent hundreds of abusive text messages to the father, called him all sorts of names and accused him of being a paedophile because the woman was so young.  She said she was furious because, at that time in 2011, she had given up her own studies in Adelaide to move to Perth to support the father while he was doing postgraduate studies.  She said she worked to pay the rent and support the family.  She said she caught trams and trains in extreme heat and it became clear to her from the messages and photographs that, at the same time, the father was driving this very young woman around in the car and going to the beach with her.  Further, the mother said that, in about November or December 2011, not long after the communications she discovered, the father sent her and X back to Adelaide for her to look after his father.  She said the father stayed in Perth until about February 2012 and, she believed, had an affair with the young woman at that time.  She said she recalled feeling trapped living in her father-in-law's house and it was during this time that the father’s sister stole her wedding jewellery.  The mother said that when she discovered the messages 18 months later, she was extremely angry and forcefully expressed that anger to the father in text messages.  She conceded she sent over 200 messages in the course of two and half days and that many of them were highly offensive.  She said she could not have abused the father in person because he would have stopped her immediately by hitting her.

17. It was put to the mother that the reason she was so incensed and upset by the father’s behaviour was because, at the time she discovered the messages in June 2013, she was still in a relationship with the father.  The mother denied that.  She said that she had previously spoken to her parents about wanting to divorce the father but they tried to dissuade her.  She said that, once she showed her parents the messages, they were finally persuaded that she should file for divorce. 

18. With her parents’ support, the mother filed an application for divorce in May 2014.  She said that when the father was served with the documents, he came to her house and screamed that he would kill himself if she went ahead with it.  She called the police who attended, spoke to the father and left without taking any action.  She said she tore up the divorce papers.  The father denied this incident as described by the mother and denied making any suicidal statements concerning the divorce.  He said he and the mother had an argument and he left to go for a walk.  When he returned the police were there.  He said that when the police told him the mother had said he was suicidal, he told them she was the one with mental health issues.  He agreed the police left without taking any action. 

19. During cross-examination about this incident the father was asked if he knew why the police came to the mother’s home.  He replied “Well, I asked them”.  Less than a minute later he described leaving the home following the argument and then said “… I came back and there’s police there and I had no idea what happened”.[21] There was a clear inconsistency in the father’s evidence in that regard.

    [21] Transcript 24 September 2018 at page 84

1. The mother said she believed that if she again filed for divorce while living in Adelaide, the father would again pressure her not to go ahead with it so she did not file any further divorce application until just before she moved to Canberra in January 2016. 

2. In late 2014, the father began living at the mother’s home.  The mother said he simply moved in without her permission.  She said he and a friend came to her home, moved her bed over to one side of the bedroom and put the father’s bed and mattress in her room.  The father agreed “something like that” occurred.  He said they had an “on again/off again” relationship and this was a period when they had resumed their relationship and the mother invited him to move in with her.[22]  The mother said he stayed for six weeks during which period she did not give him a key.  She said he simply waited until she and X were entering or leaving the property and entered the house.  She said he eventually took a key without her consent but she subsequently retrieved it.

   [22] Ibid at page 106

3. During that period, the mother said the father regularly transferred money into her bank account but she transferred it back to him because she was worried he would try to make a claim on her house.  The father said he transferred money to help cover his costs while he was staying there and to help with expenses for X.  He agreed the mother transferred the funds back.

4. The mother said that during the six week period he forced her to have sex with him almost every day.  She said he sometimes came into her bed when X was present but asleep.  She said he held her by the neck and she was afraid he would strangle her.  When she tried to push him away he would overpower her and hold her down.  She said she tried not to cry or scream because she did not want to wake up X and frighten her.

5. The mother said she kept asking the father to leave and, eventually, he did.  A few days later, he came to collect some of his belongings.  They had an argument that day.  The mother said the father called her a slut and spat in her face.  She said X was standing behind the father in the corridor and saw what happened.  The father then grabbed X roughly and took her away in his car.  The mother called the police who said there was nothing they could do to assist.  She said the father kept X for about two days during which time he refused to even let him speak to her on the phone. 

6. The father said he left the house because he was tired of the mother’s abuse of him.  He said the mother kicked both him and X out of the house that day.  I do not accept this, especially given the mother immediately called the police to seek their assistance in having X returned.  The father said he returned X a few days later because he knew the mother had full custody of her.

7. The mother was taken in cross-examination to the South Australian Police notes of the attendance at the mother’s home on 7 December 2014.  She was asked why she did not tell the police that day about the father’s sexual assaults of her.  The mother said she had not called the police to report the sexual assaults but to try to get X back.  She said she was focused on that because the father was angry and she was worried about X’s safety.  She said two big policemen arrived and she was alone in the house with them.  She said she would not in those circumstances, have spoken to them about sexual matters in any event.

8. The mother was taken to the police notes of the event.  The incident report is as follows:

   Husband and wife at home present with 7 year old daughter.  Both parties have a verbal argument where husband allegedly abuses wife before leaving with daughter and going to his parents.

   Relationship has been on and off for 10 years with the victim purchasing her own house 11 months ago but the husband has continued to stay there most days.  She wants to end the relationship but the husband is unwilling.  She has family in Canberra but has remained in Adelaide so daughter can have access to the child.  She states that (sic) has been violence but not for the last three years since she got a court order giving her custody of the child.

   Both are intelligent and well educated.

   Husband had left prior to police arrival.[23]

   [23] Exhibit F3

9. The wife said that what is recorded in the police notes is a summary of what she likely said at the time but contains some inaccuracies.  She said she was not concerned to ensure the police perfectly understood the complicated history of the relationship because she was concentrating on having X returned.  I accept that.  In my view the report is generally consistent with the wife's evidence about what happened that day.

10. The evidence about this period in late 2014 when the father moved into the mother’s house is consistent with the father needing somewhere to stay temporarily, rather than a resumption in the relationship.

The parties’ relationship following the move to Canberra

1. The mother filed a divorce application in Adelaide on 5 January 2016 and, later that month, moved to Canberra.  She said she tried to keep her address in Canberra and the name of X’s school secret from the father.  She said she was motivated three different fears.  First, she was anxious about the father’s previous threats to kill her before divorcing her.  Alternatively, she feared he would come to her home and either kill himself or threaten to do so as he had the first time she filed a divorce application.  Thirdly, even if he did not do either of those things, she feared he would come to her home and physically or sexually assault her or take X away, all of which he had done previously. 

2. The mother said she facilitated telephone communication between X and her father two or three times a week and, during those conversations, the father often asked questions of X, including where she went to school and the colour of her school uniform.  She said she told X not to give the father this information because he would use it to try to find them.  She said that when the father was having video conversations with X, he would ask X to turn the camera around so that he could see if the mother had changed and to see what she was wearing.  The mother told X not to do that.

3. The father said the mother’s fear of him finding out where she lived or where X went to school was an example of the mother’s ongoing paranoia.  I do not agree.  I accept it was based on her lived experience of the father. 

4. In late November or early December 2017, the father found out through a conversation with the mother’s sister that the mother had remarried.  The next day, the father repeatedly rang the mother’s phone on which he usually spoke to X.  The mother eventually blocked his number but, before she did, the father sent her a text message saying “Don’t worry, I know”.  During cross-examination the father agreed that the purpose of his message was to communicate to the mother that he knew she had remarried.  He denied intending to cause the mother fear or anxiety.  He did not explain why he felt the need to communicate with her about the issue.  I am satisfied his behaviour was intimidating and frightening to the mother and that the father intended it to have that effect.  The mother immediately obtained a family violence order.  The mother’s evidence is that the next time the father spoke to X he was very angry and swore at her. 

5. In mid-December 2017, the father hired a private investigator to find out where the mother and child lived in Canberra, who else lived there, where the maternal grandparents lived and where the child went to school.  He also instructed the private investigator to obtain a photograph of the mother’s new husband.

6. When first asked in cross-examination, the father said he engaged the investigator to find out where X attended school and where she lived.[24]  Later, when asked again why he retained the investigator, the father said it was “To find out where my daughter went to school… Nothing else”.[25]

   [24] Transcript 24 September 2018 at page 39

   [25] Ibid at page 87

7. The independent children’s lawyer asked the father why he did not simply issue a subpoena to find out where the child was attending school.  He replied that he had tried to contact the Department of Education and various other authorities but was unable to obtain any information.  He said “I just would like to know how she was going at school, as a concerned father, and no one was providing me with anything”.[26]  This was not compelling in light of the evidence he had earlier given that he had not even read the child’s school report for semester 1 in 2018, despite it being annexed to the mother’s trial affidavit that he had had for more than a month.

   [26] Ibid at page 124

8. The father declined to tell the family consultant, Ms E, in March 2018 how he discovered where the mother lived and did not want to say whether he knew the mother did not want him to have that information.[27]

   [27] Family report 15 May 2018 at paragraph 26

9. The father was required to bring to Court the email correspondence between him and the private investigator.  It became exhibit M3 in the proceedings.  An email the father sent to the private investigator on 14 December 2017 set out some background and stated the following:

   I would like to know (asap) where Ms Akbari and X are currently living and who lives at that address, with photographic evidence of her with her new partner and/or him being at that address.  I think Ms Akbari is currently living in her own home separate from her parents.  I would like to know where Ms Akbari’s family live.  I would also like to know where X goes to school.[28]

   [28] Exhibit M3

10. The investigator gave a quote after itemising the father’s requirements as follows:

    1. The address for the mother and child in Canberra;

    2. The identity of other people at that address;

    3. The address of the mother’s parents in Canberra; and

    4. The name of the child’s school in Canberra.

11. The father emailed the investigator on 14 December 2017 and said as follows:

    Please proceed with the searches at the earliest time possible for objectives 1-3 as discussed.  I will decide on fieldwork after obtaining the requested information.  The sooner the better I get the information

12. Clearly, the father wanted a lot more information than where the child was going to school and, ultimately, instructed the investigator to go ahead with the first three objectives when the fourth was to ascertain the name of the child’s school.

13. In about February 2018, the father found out the name of X’s school.  By the time he gave evidence on 24 September 2018 he had not obtained any information about the child’s progress or copies of her school reports.  He said he was unable to because the mother had taken out a family violence order to stop attending the school.  He could, nevertheless, have contacted the school to arrange for copies of X’s school reports and other information to be sent to him. 

14. I am satisfied on the material that the primary reason the father hired the private investigator was to find out where the mother was living and to whom she was married.  The father was recalled for cross-examination when the documents were produced.  He conceded that he wanted to find out the identity of the mother’s husband and that he sought photographic evidence from the investigator for that purpose.[29]

    [29] Transcript 25 September 2018 at page 139

The mother’s support of X’s relationship with her father

1. The father alleged the mother had, since separation, actively alienated the child from him and was determined to end their relationship.  The mother denied that.  She said she genuinely wanted X to have a positive relationship with her father but also felt protective of X and, having experienced the father’s anger and violence, did not want X to be forced to spend time with him unless she was comfortable doing so. 

2. On 29 June 2012, after the mother had been required to return to Adelaide with the child, orders were made for X to spend time with her father for two days and two nights each week.  The mother said she complied with those orders and, in the absence of any evidence to the contrary, I accept that.

3. Counsel for the father took the mother during cross-examination to the observations of X and her father made by Ms Y during her preparation of the family report of 16 October 2012.  Those observations were set out at paragraph 48 of that report as follows:

   Formal observations of X’s interactions with her father were made during a play session.  X was happy to see her father arrive and greeted him with a hug.  Immediate shared play was engaged in and these interactions depicted mutual respect, love and care.  Mr Akbari was heard to provide X with encouragement and praise and X appeared familiar with this.  Free-flowing and child focused discussion and play was noted and this appeared to be equally enjoyed by both.  At the end of the play session X proudly gave her father the picture they drew together “to put on the fridge” and she then happily responded to his requests to assist him to pack up.  X very briefly hugged her father goodbye however this was thought to be a result of being shy due to the Family Consultant’s close proximity, and then she happily left his care to return into her mother’s care.

4. The mother agreed that this was an accurate reflection of X’s relationship with her father in November 2012.[30] The mother volunteered during her evidence that X had also enjoyed a very good relationship with the paternal grandparents and liked spending time with them when in the care of the father.

   [30] Transcript 25 September 2018 at page 155

5. It was put to the mother that X’s concerns about her father and his family were relatively mild in the October 2012 family report but, by the time of the child inclusive conference in March 2017, those concerns had dramatically increased, as had the detail of the child’s description of the violent altercation between her uncle and grandfather.  It was suggested to her (and ultimately submitted) that this came about because the mother spoke to the child about the father and his family in a negative light in the intervening period and reminded her about bad things that had happened.  The mother denied that.  Given Ms Y did not give evidence in the current proceedings, there was no opportunity to explore what specific questions the child was asked in 2012 or how much she spoke about particular incidents at that time.  The evidence of the child’s statements during the assessment is set out at paragraphs 42 to 46 of the report.  Paragraphs 44 and 45 are the most relevant and read as follows:

   44.  X stated that she also had a “dad, but they don’t live together”.  She stated “my dad gets angry at me because when I been naughty and he be angry at me so I never be naughty again”.  X claimed that her father “smacks me… on the bum… with his hand” which felt “hard”.  She was asked if she could recall the last time this happened and X contemplated this question for some time before saying “every single day” however she appeared confused when saying this.  X stated that when she was naughty in her mother’s care “she doesn’t do anything, she doesn’t smack me”.

   45. X reported that she mostly felt “happy” when spending time with her father and that he (sic) loved to play on her swing at his house.  She was unsure what days she spent with her father and for how long.  When engaged in discussion about showering, X said that her mother showered her but her father did not “because he always forgot”.  X then changed the topic and stated that she had “2 Nans and 2 Grandads but 1 Grandad died”.  She described her maternal grandmother to be “very nice” and she liked it when her “Nan Akbari” took her to visit her friend Z’s house.  X stated that she had witnessed her father fighting with her “Pupa”.  She said that Pupa had “lots of kids, Mr C, Ms D, and Mr Akbari” and that “Mr C fights with his dad, I saw it”.  She said that Ms D “stole my mum’s jewellery” and that she had also been witness to this.  X stated that the only time she had felt scared in either of her parents care was “when I was four years old, I got very scared when they fight with each other”.  X believed that both parents had been equally responsible for the argument at this time.

6. It is clear from those paragraphs that the child had experienced her father as angry, had been smacked by her father and had been exposed to “fighting” in the extended paternal family.  During the child inclusive conference in March 2017 (which I will come to shortly), the child gave a lot more detailed information about the violent altercation she witnessed between her uncle and grandfather.  However, this could be the result of the way she was asked about it. Ms Q specifically noted that the manner of the child’s reporting of the incident suggested she had not been coached.  The father agreed in cross-examination that what the child said during the March 2017 conference accorded with the actual events.  The mother was not present during the incident said she was unaware of some of those details until she read about them in the memorandum.  I am not persuaded on the evidence that the mother encouraged the child to recall adverse events associated with her father.

7. The next matter relied upon by the father to show the mother does not support the child’s relationship was the change in her application to the Court between the beginning of the trial in November 2012 and when consent orders were made in January 2013.  That has been discussed earlier.  Both parties changed their position at that time and I do not see this as an indication of the mother’s lack of support for the child’s relationship with her father or a lack of desire by the father to spend time with the child.

8. In June 2013 after the mother discovered the messages and photographs of the father with the young woman, she sent hundreds of text messages to the father many of which were highly abusive of him.  Amongst them were the following:

   …I’m not staying in Adelaide.  i wanted X to hv contact with her father, but if the father is a paedophile and a FUCKHEAD she is better off without a father.  u talk about other girls tits and plan to sleep with them.  it’s better for her to not hv a father…  She will have to be one of those children who don’t have fathers or any identity.  she will hate u when she starts to know these things.  She saw the picture and cried.  I feel sorry for her…[31]

   [31] Exhibit F5 at page 7

9. The mother agreed she sent the text messages.  She said she was referring to the relationship between the father and the young woman in Perth and to the fact that the father was seeing other women without disclosing that he has a young daughter.  She said the picture she referred to in the text message was the picture of the father and the young woman but said she did not actually show the child the picture.  However it was reasonable for the father to conclude from the message that the mother intended to undermine his relationship with X by sharing that information with her.

10. It was put to the mother that she was threatening to leave Adelaide and to end the child’s relationship with her father.  The mother said that she knew that if she left Adelaide it would be difficult for X to spend time with her father because she was only comfortable spending short periods with her father, knowing she was nearby.  She said this was easy enough in Adelaide but would not be if she moved to Canberra.  She said she could not imagine X getting on a plane to go and spend a lengthy period with her father as she had never done so.[32]

    [32] Transcript 25 September 2018 at page 225.

11. The mother took no steps to ensure X maintained a relationship with her father between the time she relocated with her to Canberra in January 2016 and when the father filed his application in May of that year except to facilitate telephone calls between them two or three times a week.  She said she did not facilitate face-to-face contact between X and her father because she was afraid of the consequences for her own safety, having applied for divorce in January 2016.

1. X does not have a relationship with any other members of the extended paternal family.  She had a warm, loving and trusting relationship with her paternal grandmother but her grandmother died in 2018.  She has a paternal aunt and uncle, with whom both parents agree she should not have a relationship.

2. The next consideration is the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in decision making about major long-term issues and to spend time with and communicate with the child.  Not much evidence was directed to this issue in the proceedings.  The parties seem to have agreed on which school X attended in Adelaide.  When the mother and X moved to Canberra the mother asked the father to pay for X’s private school fees.  He refused in light of the lack of contact with X and the mother enrolled her in a public school.  The mother said the father failed to take opportunities to be more involved in X’s school life because he attended her school only once or twice a year in Adelaide despite the parents being invited to numerous events.  The father said he wanted to be more involved in the child’s school life in Canberra which is why he hired the private investigator but, as mentioned earlier, his credibility was undermined by his own admission that he had failed to read X’s 2018 semester one school report when it was available.  Since 2012, the mother has made the major long-term decisions for the child.

3. Next is the extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the child.  The mother has fulfilled this obligation to the extent of her capacity. The father has not.  While the child lived in Adelaide, he paid for her private school fees and during these proceedings, he paid for the cost of therapy with Dr B.  Apart from that, he has not voluntarily paid child support, although the Child Support Agency has intercepted some money due to him.  The father said clearly during his evidence that he did not intend to pay child support unless he has an ongoing relationship with his daughter.[78]  He agreed that X needed food, clothing and shelter, regardless of whether she had a relationship with him.  He said X knew that all she had to do was ask for anything she needed but this, in my view, is quite controlling on his part because requiring the mother or X to ask for funds puts him in a position in which he could grant or deny the request or put conditions on the provision of the support. 

   [78] Transcript 24 September 2018 at page 121

4. The father conceded that he relied on the mother to provide for the all of the child’s material needs, knowing that she would.  He denied that he was deliberately putting pressure on the mother or punishing her for not letting him have a relationship with his daughter.  He said his refusal to pay child support was a matter of principle because his daughter had been taken away from him.  He was offended with the suggestion that he was happy for X’s stepfather to provide support for her.[79]  Although the father denied the proposition, I am satisfied that he is, in fact, attempting to use the lack of child support as a means of control or punishment of the mother. 

   [79] Transcript 24 September 2018 at page 121 to 123

5. The next consideration is the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either of the child’s parents or any other significant person in the child’s life with whom the child has been living.  This is a significant factor in the determination of this case.  The father readily agreed during cross-examination that X derives emotional security from her mother and would be very distressed to be separated from her.[80]  He agreed that relocating was likely to be very disruptive and unsettling for her as it would mean a change in her home and school as well as a separation from her mother.[81]  However, he said that, although such a change would be difficult for X initially, he thought she would quickly adapt because she has before.  When that was explored, he explained that X had spent weeks away from him but settled back into and affectionate relationship with him when they were reunited.  When asked whether X had ever been separated from her mother, the father could only point to a week or so when X stayed with her maternal grandparents in Canberra while the mother was doing a work placement for her nursing qualifications.  X has a positive relationship maternal grandparents and her experience on that occasion is not comparable to the child being permanently removed from her mother’s care.

   [80] Ibid at page 62

   [81] Ibid at page 32

6. The father was asked whether he was worried that orders which compelled X to live with him against her will might cause her more harm than good.  He conceded that he did worry about that but said he thought the current environment in which she was deprived of a relationship with him posed a far greater risk to her well-being.  I am satisfied on the evidence that X is likely to suffer extreme anxiety and distress he forced to live apart from her mother with whom she enjoys a very close and loving relationship and from whom she has never been separated for any significant period.  I accept the evidence of Dr B that this would put her mental health at risk.  In my view the potential gain from such an arrangement is far outweighed by the potential risks and I decline to make those orders.  I am satisfied X’s best interests will be met by her continuing to live with her mother in Canberra.  However the lack of relationship between X and her father also poses risks to her long-term welfare and needs to be addressed.

7. The next consideration is the practical difficulty and expense of the child spending time 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.  The fact that the father lived in Adelaide and the mother in Canberra means there are significant practical difficulties and expenses involved in X maintaining a meaningful relationship with both.  If they lived in the same city, therapy and short visits between X and her father could be facilitated more easily and spontaneous ad hoc arrangements could occur.  None of that is feasible because of the distance.  If X lived with her father, similar problems would be present in reverse and X would need a lot more time with her mother that is feasible given the distance and expense.

8. Next is the capacity of each of the child’s parents and any other person to provide for the needs of the child including their emotional and intellectual needs.  The independent children’s lawyer submitted that the court should find the father lacked insight and capacity to put the child’s needs before his own.  In support of that submission she relied on the transcript of the telephone conversation between the father and X on 11 November 2016.  Although the transcript reveals both parties involving the child in that dispute, she submitted that the conversation was illuminating because the only person who knew it was being recorded was the father and, in those circumstances, one would expect him to be on his best behaviour.  However, even in the knowledge that he was recording the conversation, and presumably with the intention of ultimately relying on it in court, he made a number of comments to the child that were blatantly undermining of the mother.  They were set out earlier.  I agree with the submission of the independent children’s lawyer in this regard.

9. In my view the mother has better capacity than the father to provide for the full range of the child’s needs.  She spoke eloquently about the conflict she felt, on the one hand, in wanting to be free of the father’s controlling behaviour and, on the other, wanting to ensure X had a relationship with her father.  At one point during cross-examination she was asked about a text message she sent to the father when both parties lived in Adelaide in which she encouraged the father to spend more time with X.  She explained that she wasn’t necessarily suggesting he have more time with X but, rather, that he improve the quality of the time he had with her by engaging and interacting with her more than he had been. 

10. The mother was able to recognise deficits in her parenting capacity by exposing the child to her poor view of the father.  She conceded reasonably in this regard and said she was willing to obtain therapeutic assistance to address the issue. The father failed to acknowledge any deficits in his parenting capacity.  He said during cross-examination that he believed the mother’s behaviour had caused X’s anxiety rather than anything he had done.[82]  When asked whether he was prepared to do a parenting course he initially did not understand what was involved and, when it was explained, said he did not need such a course because he is a health care worker and it is a part of his job.[83]

    [82] Transcript 24 September 2018 at page 99 - 100

    [83] Ibid at page 111.

11. I have no concerns about the father’s capacity to provide for X’s physical or intellectual needs but, in my view, he lacks insight into his daughter’s psychological and emotional needs and therefore lacks capacity to provide for them.  The father’s proposals for how to transition X from living with her mother to living with him were completely impractical and revealed a lack of understanding about the child’s needs.

12. The next relevant consideration is the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents.  Much of the evidence related to this consideration has already been discussed.  The mother generally has a good attitude to her responsibilities as a parent.  However she failed in that responsibility by sharing her adverse views of the father with X.  The father fulfilled some of his responsibilities by paying for the child’s school fees in Adelaide and by paying for her therapy in Canberra.  His violence to the mother including when the child was present revealed a poor attitude to those responsibilities.  He, too, expose the child to his poor opinion of the mother.

13. The next consideration relates to family violence.  The Family Law Act defines family violence as “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”.[84]

    [84] Section 4AB

14. The father said the parties were verbally abusive of each other and that the mother was physically abusive towards him.  However, he gave no evidence of any physical abuse by the mother except the incident in May 2012 in which he alleged the mother hit him on his back and shoulders.  When challenged about his lack of evidence, the father said he had included that evidence in his previous affidavits filed for the 2012 proceedings.  Those affidavits do not form part of the evidence in this case and no evidence of the sort was put to the mother by the father’s counsel during cross-examination.  I reject the father’s assertion that the mother was physically violent towards him. 

15. The father agreed that, if X had witnessed family violence, it would be detrimental to her emotional well-being.[85] 

    [85] Transcript 24 September 2018 at page 57

16. The mother’s evidence about family violence was detailed and compelling.  I am satisfied the mother was subjected to violence from the father throughout the parties’ relationship.  His physical violence to her comprised pushing, hitting, punching and choking her from very early in their marriage.  This behaviour was coercive or controlling.  The mother was distressed by it and tried to appease the father to avoid it recurring.  I accept her evidence that she hoped his attitude and behaviour would soften once the baby was born.  When, in late 2006 or early 2007, the father assaulted her while she was holding the baby, she realised that his behaviour would not change.  This undermined the mother’s trust in the father and, in turn, the mother’s commitment to the relationship.

17. The mother gained a little more control over her life when she began to live separately from the father after they separated in May 2012.  I accept the overt physical violence ended at that point but that the father then began to sexually assault the mother.  The consent orders of 2 January 2013 gave the mother even more control because she had sole parental responsibility for X but the father still exercised a degree of control over her by coming to her home uninvited and forcing himself on her sexually.  However, as stated earlier, not all of the parties’ sexual encounters after separation were forced on the mother.

18. The mother remained determined to end her relationship with the father, but there were practical considerations such as the lack of accommodation and work opportunities in Canberra.  Those two difficulties were resolved at the end of 2015, and the mother shortly thereafter moved to Canberra.

19. After the mother and X moved to Canberra, the father continued his coercive and controlling behaviour.  When he spoke to X on the phone he asked her to turn the phone around so he could see the mother.  Once he found out the mother had remarried, sent the mother a text message to let her know that he knew about the marriage, knowing that would frighten or unsettle her. 

20. At various times during the marriage the father undermined the mother by telling the police that she was mentally unwell and by telling child protection authorities that she had threatened to kill the child, neither of which were true. [86] He also engaged in controlling behaviour by refusing to financially support the child unless and until he was able to see her.

    [86] Transcript 24 September 2018 at page 86. 

21. The last relevant consideration is whether it would be preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the child.  This is always difficult to assess.  If X remains living with her mother and refuses to see her father, the father may bring contravention proceedings against the mother.  However, if the orders sought by the father are made, there is, in my view, a greater likelihood of further proceedings because of X’s strident opposition to his proposals and the likelihood that she will not cooperate with orders made.

Conclusion

1. X is entitled to a proper relationship with her father provided it is safe.  The father’s case is that the child will never have a meaningful relationship with him if she continues to live in the mother’s primary care.  His proposals for X to live with him and have no contact at all with her mother for a three month period is a method usually only considered in cases of clear alienation of a child from a parent.  This is not such a case.  Mr CC set out in his report the behavioural characteristics of a child that help to identify when active alienation is occurring.  As discussed earlier, some of those features are present in this case but many are not. 

2. I am satisfied that some of X’s reticence to spend time with her father is based on her own experiences of him which were frightening or unsatisfactory.  They include her witnessing her father’s violence towards her mother; her witnessing serious physical violence between members of her extended paternal family; her being roughly taken away from her mother at least once during a dispute between the parents; and her father failing to appropriately engage with her during periods she did spend with him.

3. I have no doubt that X’s relationship with her father is also adversely affected by her exposure to each parent’s poor view of the other and the overt parental conflict for which both parents are responsible. 

4. Although the father is keen to emphasise the child’s right to a meaningful relationship with him, he has failed to acknowledge his role in the breakdown of their relationship.  If he had engaged respectfully with X’s mother, treated her as his equal and not subjected her to violence, it is reasonably likely that he and the mother would still be married and the child would have the benefit of living with both of them.  Even if the marriage had not survived, without his violence and threats, the parties are likely to have had a functional co-parenting relationship.  Throughout the proceedings, the father refused to acknowledge his contribution to the current situation.  The mother was prepared to acknowledge her role by, for example, exposing the child to her feelings of hostility towards the father.

5. Apart from the unsatisfactory relationship with her father, X is a happy, healthy and well-adjusted child.  She is part of a close, loving and functional family comprising her maternal grandparents, uncles, aunts and cousins and her stepfather, step-grandmother and half-brother.  She is doing well at school and has good friends.  These are all protective factors against the long-term risks involved in X not having an appropriate relationship with her father.  These positive aspects of X’s life would all be jeopardised by orders which require her to live with her father and have no contact with her mother or extended maternal family for a period of three months.  I accept the evidence of Ms E that such orders would be very destabilising for X because they would require her to move to a new city, new home and new school. 

6. Having said that, it is also in X’s best interest that she is given the opportunity to re-establish a meaningful relationship with her father and to spend sufficient time with him to allow that relationship to deepen and develop.  I accept the mother’s evidence that she is genuinely supportive of X having a meaningful relationship with her father provided it is safe.  I am also satisfied on the evidence that the only way this can be achieved is in a multi-pronged approach in which the following occurs:

   a)the child has appropriate therapeutic support to help her to deal with her experience of her parents’ relationship and her individual relationship with each parent;

   b)the father obtains therapeutic support to find ways of engaging with X which do not cause X to be concerned about her own or her mother’s welfare;

   c)the mother obtains therapeutic support to assist her to maintain clearer parent/child boundaries with X and to assist her to promote and facilitate X’s relationship with her father.

7. The mother opposed an order sought by the independent children’s lawyer that would require her to attend upon a mental health practitioner for therapy aimed at assisting her to support X’s relationship with her father.  Her counsel submitted there was no evidence that the mother suffered from any mental health problem that required treatment.  Counsel pointed out that the mother sought an order for her to obtain therapeutic intervention for the child.  In my view, the orders sought by the independent children’s lawyer are appropriate because the mother needs individual counselling or therapy to deal with her own experience of the father, to help her to separate her own experience of the father from X’s and to find ways of supporting X’s relationship with her father. It is not enough for her to simply support the child’s therapy.

8. Although he was not willing to do a parenting course, the father was willing to undertake personal therapy and to pay for X’s therapy.

9. To assist any therapist engaged, I will make orders permitting the parties to provide to such therapists a copy of the orders and reasons for decision, the family report of 15 May 2018 and the report of Dr B of 8 August 2018.

10. The parties agreed to an order proposed by the independent children’s lawyer that the mother ensure the child has her own phone for communicating with her father and an email address for the parties to communicate with each other about parenting matters.

1. The independent children’s lawyer proposed that X spend time with her father in accordance with her wishes but, once she has had at least three months of therapeutic counselling, she should be required to spend time with her father for three hours at a time at least four times a year in Canberra. The mother proposed that X spend time with her father only in accordance with her wishes.  In my view, there is no point in ordering specific time between X and her father because, if the time is not in accordance with X’s wishes, it is not likely to happen.  It is up to both of her parents to take the steps necessary to create the appropriate circumstances for this to occur.

2. The independent children’s lawyer also proposed that the father be permitted to send to X letters and gifts up to 12 times a year.  The mother argued that 12 times a year was too frequent and that the father should only be permitted to send gifts to X for her birthday and for Christmas.  X and her father have a history of sending each other text messages and emoji’s.  It seems far more likely that their communication will take this form rather than letters.  Given the child will have a phone on which to communicate with her father, I do not think I need to make specific orders about that.  I agree however that the mother should provide a postal address to which the father may send gifts for X for her birthday and for Christmas. 

Parental responsibility

1. When making any parenting order, the Court is required to apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility. [87]  The presumption does not apply if there are reasonable grounds to believe a parent has engaged in child abuse or family violence and may be rebutted by evidence that satisfies the court that it would not be in the child’s best interest for such an order to be made.  In this case, the father has engaged in family violence against the mother and has exposed the child to that violence.  Accordingly, the presumption does not apply.  I am satisfied in any event that it would not be in X’s best interests for the parents to have equal shared parental responsibility.  Such an order would require them to consult each other about major long-term issues concerning X and to make a genuine effort to reach agreement about those issues.[88] Given the violence suffered by the mother at the hands of the father, it is unreasonable for her to be required to continue to engage with the father in order to reach a joint decision.  Further, the parents have a hostile and distrustful relationship.  There is a risk that important decisions for X could get bogged down in the dysfunctional dynamic between them.  The mother is a competent and attentive parent and, in my view, can be trusted to make appropriate decisions about all major long-term issues.

   [87] Family Law Act 1975, s.61DA

   [88] Section 65DAC

The independent children’s lawyer’s costs

1. At the end of the proceedings, the independent children’s lawyer made an application for costs pursuant to section 117(4) of the Family Law Act. In support of the application, she tendered a notice of costs and a letter dated 29 November 2018. The letter put the parties on notice that if they intended to rely on subsection 117(4)(b) and argue that such an order would cause them financial hardship, the independent children’s lawyer would seek verification of the financial circumstances relied upon.

2. Although the notice of costs and letter were issued only one day prior to the end of the trial, the independent children’s lawyer said a notice and letter in identical terms was sent to the parties months earlier and had only been updated to take account of the extra day of trial.  She said neither of the parents had provided any information about their financial circumstances and, accordingly, full cost recovery was sought.  The total amount sought was $5,920 or $2,960 from each parent.

3. Ms Mistry said that, at the commencement of the proceedings, each party was put on notice about the issue of costs and invited to request that their share of the costs be waived.  Neither party took that opportunity.

4. Counsel for the mother submitted that if the Court is minded to make such an order, the mother should be given an opportunity to provide evidence about her financial circumstances.  I am satisfied that is an appropriate course to take in relation to both parents.  I will order that if either parent opposes the order for costs sought by the independent children’s lawyer, they must file a financial statement within 28 days.  If, despite the information in the financial statement, the costs application is pressed, the matter will be listed for argument on a date to be advised.

I certify that the preceding three hundred and seventy (370) paragraphs are a true copy of the reasons for judgment of Judge Hughes

Associate:  

Date:  23 December 2019