Akif and Ahmadi

[2011] FamCA 958

FAMILY COURT OF AUSTRALIA

Akif & Ahmadi [2011] FamCA 958

FAMILY LAW – CHILDREN – parenting orders – parental responsibility – with whom the children will live and spend time – allegations of sexual abuse – where father denies allegations – where father asserts mother coached the children to fabricate the allegations – positive finding that one allegation is true – unacceptable risk – where father lacks insight about children’s needs – sole parental responsibility allocated to the mother – children to live with mother – no time or contact with father

Family Law Act 1975 (Cth), ss 60CA, 60CC, 61DA
Evidence Act 1995 (Cth), s 140

In the marriage of B & B (1988) FLC 91-978
Briginshaw v Briginshaw (1938) 60 CLR 336
In the marriage of M & M (1988) FLC 91-979

APPLICANT: Ms Akif

RESPONDENT: Mr Ahmadi

INDEPENDENT CHILDREN’S LAWYER: Delaney Lawyers

FILE NUMBER: SYC 5046 of 2008

DATE DELIVERED: 15 December 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Faulks DCJ

HEARING DATE: 5-9 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Stolier

SOLICITOR FOR THE APPLICANT: Mark Whelan Lawyers

COUNSEL FOR THE RESPONDENT: Ms Conte-Mills

SOLICITOR FOR THE RESPONDENT: Bilias & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Cook

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Delaney Lawyers

Orders

1. The young people AK [the elder son], born … February 1999, and A [the younger son], born … March 2001 (collectively referred to as “the young people”), will live with their mother, Ms Akif, born… June 1971 (“the mother”). 

2. The mother will have sole parental responsibility for the young people. 

3. Notwithstanding the abovementioned order the young people’s mother will:

   (a)Keep the young people’s father, Mr Ahmadi, born … May 1968, (“the father”) advised of the schools which the young people are attending.

   (b)Direct the schools referred to provide to the father, upon his request and at his expense, copies of all reports and notices about the young people.

   (c)If the young people suffer any serious illness or require hospitalisation (other than as an out-patient):

   (i)Advise the father of such serious illness or of hospitalisation; and

   (ii)Direct any doctor or associated professional treating either or both of the young people in such circumstances to provide to the father, upon his request and at his expense, information about the illness or injury which the young people may suffer, its diagnosis, treatment and prognosis. 

   (d)Such advice provided to the father from the mother, as required by orders 3(a)-(c), may be given by pre-paid post to the last address notified by the father as his address to the mother’s solicitors. 

   (e)Not less than twice a year (on or about 1 June and 1 December), write to the father at the address referred to in the order 3(d) and provide to him in that written communication, information about the activities and progress of the boys during the preceding six months. 

   (f)In so far as she is reasonably able to do so, respond in affirmative and positive terms to enquiries by the young people about the good times they had with or the good things they remember about their father. 

4. Nothing prevents the mother from facilitating the young people in communicating with the father if they express to her a wish to do so.

5. The father, Mr Ahmadi, born on … May 1968, be and is hereby restrained from:

   (a)Threatening, abusing, assaulting or molesting Ms Akif, born …  June 1971, or AK, born … February 1999, or A, born … March 2001.

   (b)Approaching within 200 metres or being upon any premises occupied by Ms Akif or AK, or A, except with the prior written consent of Ms Akif. 

   (c)Attending at any school(s) attended by the young people or any events sponsored by or organised by the school or any sporting function involving the young people except with the prior written invitation to do so from the mother and the young people involved. 

   (d)Attending to see either young person in hospital if the young person is so confined, except with the prior consent (not necessarily but desirably in writing) of the mother.  This consent will not be unreasonably withheld in those circumstances. 

   (e)These orders are imposed for the personal protection of Ms Akif, AK, and A; and a breach thereof may invoke the powers and provisions of s 68C of the Family Law Act1975.   

6. The mother may provide a copy of this order to any school that the young people attend, or to any medical practitioner upon which the young people attend or who attends upon the young people, or to any hospital in which either young person is at any time a patient. 

7. All material produced sub poena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

8. Any material produced sub poena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.  Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

9. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.

10. The matter is removed from the pending cases list. 

11. The Independent Children’s Lawyer is discharged upon the expiration of the appeal period.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 5046 of 2008

Ms Akif

Applicant

And

Mr Ahmadi

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a matter about what parenting orders should be made in relation to AK, a child of the parties who is almost 13 years of age, and his brother A, who is now just over 10 and a half years of age. 

2. Both young people are living with their mother and she seeks that the young people have no time with their father.  This is primarily because she believes, as a result of disclosures made by the boys that their father has engaged in a series of activities with the boys which range from inappropriate sexual experiences through to what would be by any definition referred to as child sexual abuse. 

3. For his part the father denies that the activities referred to occurred with one exception. He admits he showered with both children, but denies he taught them how to masturbate, that he asked them to masturbate him or that the showering had any sexual connotation. He asserts that he showered with the children and showed them how to wash themselves including their genitals. 

4. Apart from the evidence of the parties and some other witnesses who were not cross-examined, I was assisted by a report from Dr R, a specialist child and family psychiatrist, and a family report from Ms T, a Family Consultant attached to the Sydney Registry of the Family Court. 

5. Annexed as ‘Appendix 1’ to these reasons for judgment is a list of the exhibits in the proceedings which included a number of records including those from JIRT, which investigated some of the allegations.

Background

1. At the time of the hearing the young people’s mother was a little over 40 years of age and the young people’s father a little over 43 years of age.  The parties met in 1991 and married in early 1993 under Islamic law.  However that relationship was temporarily suspended and resumed again in 1995.  The parties married in accordance with Australian law in June 1995 and the young people were born some four years and six years later respectively. 

2. Around about 2008 the young people’s father took A fishing on a number of occasions.  The evidence would not allow me to determine how many occasions and the incidents themselves are highly controversial as it was asserted subsequently that the father did not take A fishing but rather to a place at which he was abused. 

3. In the same year (or possibly in 2009) there were disagreements between the mother and her parents who were living in Australia.  In about August 2008 the young people disclosed to the mother that the maternal grandfather allegedly experienced an erection when they sat on his lap.

4. On 3 August 2008, the father confirmed he was having an affair and the parties separated.  On 5 August 2008, there then began a series of allegations relating to what the father did with the young people in the shower and an ADVO was made in the father’s absence on 21 August 2009. 

5. Following the young people’s disclosures, the mother took them to see their local GP on 8 August 2008, and subsequently the children were interviewed by the Community Services staff. Community Services staff apparently formed the view that there was no information to substantiate any current concerns. 

6. However, after commencing proceedings in the Federal Magistrates Court in late August 2008, an order was made in September 2008 that the young people would live with their mother and spend no time with their father.  Within a relatively short period this order was changed to provide that the young people would spend some supervised time with their father.  The supervised time between the young people and their father was unsatisfactory. Only one contact session with the father occurred – that was in November 2008 at a contact centre. During that session, the young people yelled and threw punches at the father when they saw him.

7. An expert’s report (from Dr R) was provided in March 2009.  I will deal with the evidence of Dr R in more detail later but it is sufficient to say that at the end of her report she recommends that the young people should live with the mother and only spend time with the father if such time is supervised.  The last time the young people actually spent time with their father was during the observation session with Dr R.

8. Dr R’s report was careful and insightful.  Her evidence in cross-examination considered and thoughtful.  Her opinions were based on observations and her expertise and the pathways she followed in arriving at her conclusions were transparent. I accept her evidence and her conclusions as expressed in her report and modified (to the extent that they were in her oral evidence.) 

9. In May 2009 the matter was adjourned to February 2010 for a three day final hearing.  In late May, after the matter was adjourned, the children made further disclosures of sexual abuse against the father.  The most serious matter however arose from disclosures made at the end of January 2010 by A who told his mother at that point that his father had taken him to a place, attended by other children and their fathers, and that the fathers would video the children “with [their] clothes off doing stuff”[1]. 

   [1] Mother’s affidavit, 10 February 2010, [7].

10. The hearing scheduled in the Federal Magistrates Court for February 2010 was subsequently abandoned and the matter transferred to the Family Court.  A Magellan report was ordered was and became available in April 2010. 

11. In June 2010 the father’s application for the annulment of the ADVO made on 21 August 2009 in his absence was dismissed. The father appealed this decision and in August 2008, the father’s appeal was being upheld and the matter was sent back for rehearing in the Local Court.  The matter was in fact reheard in February 2011 and the application dismissed. 

12. Also in August 2010 the father suffered a mild heart attack and was diagnosed with a condition know as bradycardia.  A Family Report was released in April 2011 which concluded with a recommendation that the young people should live with their mother and that there be no contact with the father.

13. Little cross-examination was directed to the Family Consultant by the father’s counsel and I am entitled to and do accept the opinions and observations contained in the report.

14. In September 2011 while the father was an in patient at a Hospital he was found by nurses to be near the hand rails on the top level car park.  He told the nurses that he was considering committing suicide. 

15. Also in September 2011 the young people were awarded $40,000 each by the Victims Compensation Tribunal for injuries suffered as a result of the alleged sexual abuse by the father. The mother was awarded $3,000.[2] Although some reference was made to it in cross-examination, in my opinion the fact that there was compensation awarded pursuant ot the Victims Support and Rehabilitation Act 1996 is irrelevant. 

    [2] Mother’s affidavit, 11 November 2011, Annexures B-D.

16. On 31 October 2011 a short time before the trial the father attended on a physiatrist, Dr K.  Dr K reported to the Department that the father had said that if he were precluded from seeing his sons after the Family Court proceedings he would kill the mother.  The father dealt with this matter in his affidavit denying that he meant the matter seriously.  He said it was a measure of his frustration.  The disclosure of the father’s threats led to a further application for an AVO on the mother’s behalf which, so far as I am aware, has not been determined at this point. 

17. The matter proceeded before me over a period of five days from 5 to 9 December 2011.  At the conclusion of proceedings I reserved my judgment. 

The orders sought

Orders sought by the mother

1. In this matter the mother sought orders that the young people live with her and have no time with their father, or communicate with him.  A copy of her Minute of Orders Sought is annexed to these Reasons for Judgment as ‘Appendix 2’. By the end of the proceedings, the mother changed her position and agreed with the Minute of Orders sought by the Independent Children’s Lawyer.  

Orders sought by the father

1. When the proceedings began I enquired of counsel for the father what orders the father would be seeking in the proceedings.  Counsel indicated the father’s position was that he sought that the young people live with him and spend no time with their mother for a period of 6 months.  Counsel for the father indicated that she and her client were in the course of preparing of a Minute of Orders Sought which would be made available on the following day.  In fact the Minute was not made available until the afternoon of the last day of the trial. The Minute of Orders sought provided a position somewhat different from the father’s position at the commencement of trial. The Minute of Orders sought by the father  provided that the father would participate in “intensive family therapy” and following a period of six months, the young people would be reintroduced to him in accordance with a graduated program of time.  I sought counsel’s input as to how the various periods had been determined and questioned why this proposed program had not been made available prior to the last day of trial so that it could be put to either of the experts in the course of cross-examination.  It appears that the program is potentially unrelated to any particular child development or psychological basis and was intended to be a gradual progress towards a more effective arrangement about the time the young people would spend with the father.  A copy of those Minutes is annexed to these Reasons for Judgment (Appendix 3). 

2. In the course of final submissions the Independent Children's Lawyer handed up a Minute of the Orders proposed by him. As mentioned above, the mother adopted the ICL’s proposal in final submissions.  Those orders proposed by the ICL are annexed to these Reasons for Judgment (Appendix 4).

3. In essence the ICL’s proposed Orders sought that the young people live with their mother, that she have sole parental responsibility for them, that there be no order about the time the young people would spend with their father and no order about communication with their father.  They provided however for some information to be supplied to the father about the young people’s schooling and about serious medical issues.  There was also provision for the children to engage in therapy.  I enquired of and was advised that neither the mother nor the Independent Children's Lawyer were wedded particularly to the form of orders that were set out in the Minute referred to.  As can be seen from the orders I have made in this matter I have adopted some of the framework proposed by the ICL, but I have expanded and altered the wording in some cases. 

Matters relating to the parenting orders

1. The orders I am being asked to make in this matter are parenting orders pursuant to the provisions of the Family Law Act1975 (Cth) (“the Act”). In making those orders I take account of the objects of Part VII of the Act and the principles underlying it in accordance with s 60B. I also take account of the fact that pursuant to s 60CA the children’s best interests must be my paramount consideration in making such orders.

2. Division 2 of Part VII of the Act deals with parental responsibility and in particular in s 61DA provides that a presumption of equal shared parental responsibility be applied when parenting orders are made.

3. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

   (b)family violence.[3]

   [3] Family Law Act 1975 (Cth), s 61DA(2).

4. In this matter, as I will indicate subsequently I accept and find that the father has engaged in abuse at least in relation to A.  That matter is dealt with below. 

5. For the reasons I will detail below, notwithstanding the father’s protestations that in some way his threat to kill the mother in October 2011 was either only a measure of his frustration or some peculiar form of humour, I accept that by that act alone, irrespective of any other matter there was family violence, such as would appropriately rebut the presumption of equal shared parental responsibility. 

6. Moreover, I am satisfied that it would not be in the best interests of the young people for the mother and father to have equal shared parental responsibility for them.  Irrespective of the issues of abuse and violence the parents have no capacity at present or foreseeably in the future to communicate effectively about anything let alone to cooperate and collaborate on matters relating to the young people’s best interests and long term care, welfare and development. 

7. Neither parent can avoid the obligations that having a child or bringing a child into the world necessarily bring. However, it is meaningless to provide that the parents share responsibility for the young people (as opposed to having duties and obligations in relation to the young people) where the parental relationship is so conflicted, so fractured and the prospects of its improving so remote that cooperation and collaboration are not possible or likely to be possible. In this respect it would not be in the best interests of the young people to have a division of responsibility or a required sharing of responsibility in circumstances where such sharing would not be practically possible. 

8. Accordingly, in this case, either parent may have sole responsibility but shared responsibility is not an appropriate option. 

9. In most cases it is appropriate even if one parent has sole parental responsibility for that parent to consult with the other.  But, as I have outlined in the orders, it is not appropriate in this case because of the findings I make about abuse, the threats of violence, and the father’s lack of insight about his actions and the effect they have on others.  He has also demonstrated a lack of understanding about the young people and about their physical, psychological and emotional needs. 

1. Nevertheless, it is important that the father be kept informed about the young people’s development and the orders I make, make provision for a report from the mother on a regular basis to keep the father so informed.  It may be that when the young people are older (perhaps attaining adulthood) they will wish to resume spending time with their father and to redevelop a relationship with him.  These orders may facilitate such a redevelopment if that is the wish of the young people. 

Allegations of sexual abuse at the apartment

1. Counsel for the father submitted that the principal matter for the Court to determine was the question of abuse.  In fact the principal matter for the Court to determine is what, in all of the circumstances of the matter, would be in the young people’s best interests.  Nevertheless, the issue of abuse occupied a substantial part of the evidence and a major part of the submissions of each of the parties and of the Independent Children's Lawyer.  It is therefore appropriate to deal with that matter first. 

2. There were various allegations raised by the young people about the activities their father engaged in with them. 

3. I do not believe that I can make findings either positively or negatively about many of the allegations that were made.  I will review those allegations a little later in these Reasons for Judgment but I have determined that I can and moreover should make a finding that the young people’s father did engage in child sexual abuse in relation to A at the apartment in X suburb.

4. The evidence in relation to this abuse comes from disclosures made by A to the mother and to JIRT.  The Family Consultant does not comment directly on these allegations and the disclosures happened after the interviews with Dr R.  However the material relating to these allegations as it appeared in the evidence was available to Dr R when she was cross-examined.  The details of the allegations are contained in part in the record of the interview with JIRT conducted on 15 February 2010 and in the words of that report. The relevant part of that report is annexed to these Reasons for Judgment (Appendix 5).

5. The allegations made by A were that the father had taken A to an apartment in X suburb, that other children and their fathers had come to the apartment as well, and the fathers used video cameras to record the children “doing stuff” without their clothes on. This allegation was made on 26 January 2010. When making this disclosure to the mother, A also described the apartment itself, saying “[t]here were 3 green couches and there were videos everywhere… the old type videos.”[4]

   [4] Mother’s affidavit, 10 February 2010, [7]

6. On 6 February 2010 A elaborated on his earlier allegations about the sexual abuse at the apartment. There is an extraordinary level of detail in these allegations. A informed the mother that the fathers at the apartment, including his father, would roll cigarettes, smoke them and blow the smoke in the children’s faces. This made the children “dizzy” and they fell asleep. The children were then woken up with a horn, “one of the ones you carry in your hand.” After being woken up, the children “would have to hump each other naked, like Dad taught [A]. Dad would get angry if [A] didn’t do it. [A] would have to hump the other children and the dad’s [sic]”. In response to questioning about how the father would get angry, A replied “[h]e would scream at me and hit me on my back, and make me hump the men. Dad would kiss the men and touch their penises… I was scared, especially when dad said he would put me in a bag and drown me and get a gum and shoot you if I told anyone.”[5]

   [5] Mother’s affidavit, 10 February 2010, [9].

7. A also described how the fathers allegedly present at the apartment were unable to be identified “because they wore masks… When they came in [to the apartment] they took a wig and a mask off a rack. The rack is like the ones they have in restaurants.” A alleged the father wore a mask and a pink wig. [6]

   [6] Mother’s affidavit, 10 February 2010, [11].

8. A also said the children were identified by “different names” at the apartment. The father called A “Chook” and the other children had names like “Spider”, “Princess” and “Fairy”.[7] A told the mother he knew one of the children’s name was “MJ”, it is unclear whether this was the child’s real name or his pseudonym at the apartment.[8]

   [7] Mother’s affidavit, 10 February 2010, [9].

   [8] Mother’s affidavit, 10 February 2010, [7].

9. The child made similarly detailed disclosures to JIRT in his interview. The interview, as noted above, is annexed to these Reasons.

10. Two preliminary comments may be made about these disclosures.  The first is that the disclosures occurred some 18 months after the parties separated and the young people have not spent any unsupervised time with the father since then, and hence there was no opportunity for the conduct to have occurred again.  The second is that the allegations are in themselves complicated, bizarre and incredibly detailed.  These factors might ordinarily be thought to militate against acceptance that the conduct had occurred. 

11. In relation to the delay in A’s disclosure, I am assisted in my consideration of these matters by the evidence of the Family Consultant who has seen the boys more recently than Dr R and who confirmed in her oral evidence that A could have at his age recalled the incident in the circumstances that had been referred to, even though the alleged events had allegedly occurred some 18 months prior.  

12. So far as the details and the bizarre nature of the allegations are concerned Dr R in her cross-examination expressed the opinion that it would require a high level of intelligence and literary development on the part of A to be able to compose such a story if it were in fact a construct only of his imagination.  Such a story, if it were fabricated, would only be produced by a very talented and imaginative young writer.  A’s school reports do not suggest that he is in that category.  Neither the expert nor the Family Consultant suggested that he was in that category.  Neither parent suggested he was in that category. 

13. In assessing the incidents I suggested to counsel that three possibilities might exist. 

14. The first of these was that this story was implanted in A’s mind by the mother.  That is also what the father suggested. However, the father had no direct knowledge that the mother had done this, nor was there any evidence to support that the mother had in fact constructed any of the stories relating to the young people. Dr R’s opinion was that “[the mother] is insightful into the adverse effects on her children of coaching them into making false allegations and did not impress as being willing to harm them in this manner.”[9] I accept this evidence.   

    [9] Expert report, 18.

15. The father suggested, and I accept in part, that some of the mother’s evidence was unsatisfactory to the point of being unbelievable. 

16. The father states that in 2002 the mother attempted to attack him with a knife, the reasons for her doing so are unclear. The father barricaded himself in a room and locked the door; it is alleged the mother attempted to burn the door down by lighting tissues with fire and placing them under the door. The mother was taken to the police station but was not charged. In her cross examination, the mother said she did not recall particular details about the attack, including whether the young people had been present in the home at the time. This attack by the mother was not trivial, it involved the mother wielding a knife against the father, attempting to burn down a door, and she was taken to the police station in relation to the incident. That the mother cannot recall details such as whether the children were at home when this event occurred is incredible. I do not accept that she cannot recall, but rather that she is being untruthful or minimising her involvement.

17. The mother alleges that in May 2009, after both parties attended a court event, the father approached the mother at World Square and threatened to kill her, her parents and another relative. The Local Court proceedings in relation to this were dismissed by the magistrate on the grounds that the CCTG footage of the event, as represented by a police officer in his oral evidence before the Local Court, did not support the mother’s allegations.

18. However, this evidence related to other matters more particularly between him and the mother rather than the mother and the young people. 

19. In relation to the allegations about the apartment in particular, the mother’s evidence in her affidavit and her cross-examination led me to accept her denial that she had fabricated her story and inculcated it in A..  I so find.  In aid of my consideration of that evidence is the commonsense proposition that if a parent were minded to construct an allegation of child abuse to implant in a child for subsequent recitation to others, a story of this extraordinary particularity would not be the choice.  As the Independent Children's Lawyer indicated there would be a serious risk if such an elaborate story was sought to be implanted that at some point the child would indicate that he had forgotten what his mother told him to say and the purpose of the implanting would be destroyed along with the mother’s credibility.  At no point is it asserted that this happened.  Furthermore, Dr R’s oral evidence was that it would require a psychotic parent to train the child to remember the details of such an elaborate story. There was no evidence to suggest that the mother is psychotic.

20. The second possibility is that the story was made up by A.  For the reasons set out above I do not accept that this is a likely or even a reasonably possible explanation.  No one has suggested, nor is there any evidence to support the proposition that A had been exposed to some film or television program or some other form of pornography which might have caused him to construct such an elaborate story.  The expert evidence suggests that the story would otherwise be beyond his ability to construct. 

21. Sadly, that would appear to leave only one further conclusion and that is that A was reporting, even if not in every detail accurately, the truth about what had happened to him some time before, at the instigation of and in the company of, his father.  I accept that this is so and find that this is so notwithstanding the delay in A’s reporting the incidents. 

Other sexual abuse allegations

1. In final submissions, counsel for the father helpfully took me through the various allegations that were made and identified them and made comments about them.  The first of these was revealed in paragraphs 26 and 27 of the mother’s affidavit filed on 23 December 2009. The allegation occurred on 5 August 2008 and related to a comment from A that the father:

   Rubbed soap on my penis, make it big and think of girls.  We do it together.[“We” is a reference to his father].[10] 

   [10] Mother’s affidavit, 23 December 2009, [26] and [27].

2. These comments were reiterated by AK in a different context.  The assertion in essence was that at one level the father was both encouraging and teaching the boys how to masturbate in the shower using soap.  The accounts of the boys about what their father was doing and whether he involved them in any masturbation of him are not clear or in my opinion reliable.  The father concedes that he showered with the young people from time to time.  He conceded that he taught them how to wash themselves, including their genitals, but, he said he did so without touching them.  He denies any sexual activity and denies in particular teaching the boys how to masturbate.  Most particularly he denies that he had the boys masturbate him. 

3. In the light of this evidence, bearing in mind in relation to such a serious allegation I should be convinced that the event(s) happened, I could not make such a finding.[11] 

   [11] Evidence Act 1995 (Cth), s 140; Briginshaw v Briginshaw (1938) 60 CLR 336.

4. In the light of the evidence given however, I cannot effectively find that the event referred to by the young people did not occur. 

5. The second incident counsel for the father directed me to is contained in paragraph 37 of the mother’s affidavit was reported on 2 April 2009 and relates to A disclosing he:

   put my finger in my bum

6. He said

   Dad did it all the time to me, even when it hurt it.[12]

   [12] Mother’s affidavit, 23 December 2009, [37].

7. The father again denies that the allegations had any substance.  There may be any number of explanations for the conduct referred to.  Some but not all would not involve any sexual intent on the part of the father. 

8. Again, this is a matter on which I am unable to make any definitive finding either that the incident occurred or did not occur in the light of the evidence referred to.  I note in relation to this incident, and others, that they were the subject of enquiry and investigation by the Department of Human Services at least to the extent of interviewing of A and AK. 

9. The third matter referred to occurred on 26 May 2009 when A is reported to have said he had seen naked women:

   when dad and I were in the van he would get magazines from under the fridge in the van, magazines with naked people.  He would tell me to look at them and that my penis should go up.  We did it together.[13]

   [13] Mother’s affidavit, 23 December 2009, [40].

10. The father denied that he had ever shown to A any form of pornography or something that might have been so construed or photographs of naked women.  He was asked whether there was a refrigerator in his van and he responded by saying that the van was not a refrigerated van.  I was unable to determine whether this was an evasive answer or whether he was confused by the question.  Although I am concerned about the father’s response this is still not a matter which I can find to the requisite standard as having occurred but again equally I can not find that it did not occur. 

11. The fourth matter to which I was referred relates to the incident at the apartment.[14]  I have already dealt with that. 

    [14] Mother’s affidavit, 23 December 2009, [41]

12. The next matter referred to relates to the discussion between AK and A about “the grossest things to eat”. This disclosure occurred on 11 September 2009. It is asserted that A said

    dad would put his penis in my mouth and what came out was yuck.[15]

    [15] Mother’s affidavit, 23 December 2009, [42].

13. Counsel for the father urged on me that this was the only report about this matter anywhere notwithstanding fairly close questioning of the boys over a long period.  So far as I can determine this is so except for the reference to the filming or videotaping of such an incident referred to below. 

14. Contained in paragraph 57 of the mother’s affidavit is the allegation made on 11 July 2009 that the father would make AK video tape A “doing disgusting things”.  “He would make [A] suck his penis” and “he would also make me do things to [A] and he video taped us”.[16]  The father denies the allegations and this potentially very serious allegation was not apparently otherwise raised with JIRT.  Such apparent inconsistency does not of itself trouble me but again the matters referred to are vague as to time and in the face of apparently plausible denials by the father I could not make a positive finding that these events occurred.  I can not make a finding that they had not occurred. 

    [16] Mother’s affidavit, 23 December 2009, [57].

15. That does not necessarily mean that it did not happen and taking account of the age of A and AK it would not seem to be reasonable to expect them to consistently and methodically detail each event on every occasion. 

16. Obviously if the incident as described by A occurred then this would be a serious form of child sexual abuse.  Again, the father denies that any incident of that sort occurred.  There was no reason, from his demeanour, to doubt the sincerity of his denial.  In such circumstances again I find myself unable to make any particular finding about the events referred to.  It is a report by a third party (the mother) and some time after the event, and the incident described (to the extent that it was) was not described with any degree of particularity.  I cannot however exclude the possibility that it did occur.

17. The next incident was referred the allegation was made on 16 August 2008. The mother found photographs of a child’s penis on her mobile phone. Upon asking A whether had taken these photographs, he confirmed that he had.

    Yes, I did. Like Dad. Dad used to tell me to make my penis big in the shower and he would take photos of my penis with his phone.[17]

    [17] Mother’s affidavit, 23 December 2009, [47]

18. It was not suggested that the photographs found by the mother were taken by the father, it is clear they were taken by A who was playing with the phone.  However the allegation in effect was that the father did take photographs of A’s penis when it was erect.

19. This incident differed in part from those that preceded it in that there was some physical evidence (in the form of the photographs) taken to support the allegation.  The corroboration is however indirect.  It does not support the allegations that the father took photographs - only that A did and it may have been the case that A was seeking to excuse his own conduct by reference to a third party – his father. 

20. I could not be satisfied to the requisite standard that the allegations about the father’s conduct are true.  Equally in this case I cannot be satisfied that the conduct did not occur. 

21. The next allegation relates to an occasion when AK had diahrroea and soiled his bed. This allegation occurred on 11 July 2009. In response to a comment made by his mother, AK is alleged to have replied “I am sorry maybe it is because of what Dad to me in my bum”.[18]  So far as I am able to ascertain there is no other reference in the material to any anal penetration of AK by the father.

    [18] Mother’s affidavit, 23 December 2009, [56].

22. I was not directed to any evidence relating to the outcome of any physical examination of AK and I do not doubt that if there had been any physical evidence to corroborate any form of anal penetration that that evidence would have been put forward. 

23. This report could have been AK seeking to avoid responsibility for his actions (involuntary though they may have been), it might have been a reflection of AK’s bad relationship with his father.  It may have been AK’s saying something to his mother which he thought (mistakenly) his mother may have wanted to hear.  Whatever may have been the situation the allegation is both too vague, too imprecise, too unrelated to time and too indirect for me to accept.  I reject the allegation and find that it has no substance. 

24. The next incident referred to concerns an allegation made on 20 September 2009 that the young people were obliged to have showers before they went to the mosque and “he would make us wank and then he would tell us to pray”.[19]  This was allegedly a report by AK in September 2009.  I do not accept that is a report or disclosure which would identify an area of sexual abuse.  I do not dispute that AK may well have reported the matter as is set out in paragraph 58.  I do not accept that what he said was evidence of what was therein asserted and I find that the allegation was not made out and further find that this incident did not occur.

    [19] Mother’s affidavit, 23 December 2009, [58]

25. The next incident referred to was not of sexual abuse but of physical abuse.[20]  It is hard in all of the evidence to determine whether the father had engaged in unreasonable physical discipline or restraint of either or both of the boys or particularly AK. 

    [20] Mother’s affidavit, 23 December 2009, [62]-[63].

26. There was some physical evidence reported as corroborative in the physical signs on the limbs of AK.  The father denies any inappropriate physical restraint or punishment.  The references are vague and I could not make a positive finding that some form of physical abuse occurred or indeed that no inappropriate physical restraint had occurred.  Although M & M[21] dealt with sexual abuse, it is properly able to be extrapolated to physical abuse.  In my opinion there would be no unacceptable risk of inappropriate physical restraint or punishment of the boys if they were to spend time with their father.  However, in the light of other findings this is irrelevant. 

    [21] (1988) FLC ¶91-979

1. A further allegation occurs was made on 9 August 2008.[22]  This related to a conversation between AK and his mother about AK’s apparent reaction after his maternal uncle touched his leg. The maternal uncle gave AK a friendly slap on the thigh which caused AK to jerk his leg away. When questioned about why he reacted in this way, AK said he “[doesn’t] like to be touched… Especially [his] private parts… Like when papa and [A] are making penises big. I turned around and didn’t look.”[23]  Given the proliferation of reports, I find it difficult to be quite as certain as she is about that submission. Nevertheless the allegation is so general in its terms as to be unreliable and I reject it, in itself, as an allegation of sexual abuse.  To the extent that it refers to the showering incident I have dealt with it elsewhere.

   [22] Mother’s affidavit, 23 December 2009, [66]-[67].

   [23] Mother’s affidavit, 23 December 2009, [66]-[67]; 17 October 2008, [50].

2. These allegations are serious ones.  Even in default of a positive or negative finding about whether the events occurred, the gravity of the risk that it might have occurred is such as to constitute in this instance, in these circumstances, an unacceptable risk.  The High Court in M & M[24] (and B & B[25]) commented

   And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.[26]

   [24] (1988) FLC ¶91-979.

   [25] (1988) FLC 91-978.

   [26] (1988) FLC ¶91-979, 77,081.

3. Their Honours went on to say

   To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.[27]

   [27] (1988) FLC ¶91-979, 77,081.

4. Their Honours do not provide any assistance about how an unacceptable risk might be determined.  From a physical point of view if the risk is grave to the extent that the conduct complained of is serious, and the child were to be unsupervised with the father, then that may constitute an unacceptable risk. 

5. This may not be the situation in a particular case if, for example, the child is now older and capable of either resisting any attempts by the father to engage in the conduct complained about or the circumstances in which the father sees the child is such that the requisite opportunity for the conduct to occur is unlikely. 

6. At the other end of the spectrum if the father sees the child only in the presence of the mother or of a professional supervisor then the physical opportunities for the conduct to occur would minimise any risk. 

7. There is perhaps also an unacceptable risk of psychological and emotional harm when returning a child to a person abused him, or whom the child believes to have abused him.

8. A further issue arises in relation to the question of risk about the desirability basis of a child only seeing a parent in supervised circumstances on a long term basis removes any advantage in the relationship between the child and the parent. 

9. In respect of each allegation, other than the apartment allegations, where I indicate or have indicated that I am unable to making any finding either positively or negatively about whether something happened, I believe that there is an unacceptable risk in either of the young people spending time with their father. 

10. In the light of the positive finding of sexual abuse that I have already made I cannot, at this stage in the boys’ development, envisage circumstances where they might spend time with him except on a supervised basis.  I would consider the question of long-term supervision to be inappropriate and inimical to the best interests of the young people. 

11. I wish to make it clear that the fact that there is a multiplicity of allegations does not mean that any of the allegations acquires any additional strength by association with the others.  Each of the allegations must, in my opinion, be separately dealt with and evaluated and I have done so above. 

Best interests

1. The Act provides guidance as to matters to be taken into account in determining what are in the young people’s best interests.  In this regard, s 60CC requires the Court to consider the matters set out in subsection 2, which are referred to as ‘primary considerations’, and in subsection 3 those matters which are referred to as ‘additional considerations’. 

Primary considerations

1. I will deal first with the question of the need to protect the child from harm as a result of exposure to abuse or family violence, and then with the question of the benefit to the child of having a meaningful relationship with each parent.

S 60CC(2)(b)

1. In relation to the primary considerations and conscious of the amendments that will take effect shortly in relation to violence, a primary concern is to ensure that the young people are protected from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.  The findings that I have made about child abuse and also in relation to violence on behalf of the father impose a serious restraint on the orders that I might properly make about the time the young people spend with their father; in particular, a consideration of the protection and safety of the young people would in the circumstances of this matter preclude the young people living primarily with their father. 

2. There are other factors which would reinforce that conclusion to which I will refer in due course but a reference to s 60CC(2)(b) alone would preclude making such an order.  Moreover, for the reasons set out above, it would be inappropriate for the young people to spend time with the father except in circumstance where unacceptable risk of harm is minimised. In these circumstances, at their age, and given the allegations referred to, any unacceptable risk can only be minimised if the children’s time with the father is supervised either by a professional supervisor or by the mother. 

3. The question of the young people spending time with their father in the presence of the mother does not arise in circumstances where the father has, and I accept that he did, threaten that he would kill the mother.  Moreover the mother’s extreme reactions to the father included the incident where I accept she took a knife and stabbed at the door behind which the father was hiding at the time, and her response to him in the World Centre.[28] 

   [28] In respect of each incident I have indicated before and to counsel that I did not accept the evidence of the mother as being an accurate description of what occurred. 

4. That would leave the young people in a situation where, if they were willing to spend time with their father and if it would be productive of a meaningful relationship between the young people and their father, that such time would need to be spent under professional supervision.  As mentioned previously, this cannot be regarded as properly in their best interests or their long term welfare even if all other matters were equal.

S 60CC(2)(a)

1. The importance of the young people’s having a meaningful relationship with their father should not be minimised in any way.  There are some positive aspects of the past relationship and these were outlined in a list by counsel for the father.  With due respect to counsel the list is in some respects superficial.  Some of the events occurred but occasionally and some only on a few occasions.  Nevertheless there are positive aspects of the relationship and these should be reinforced. 

2. I have made an order to ensure that occurs so that if at some time in the future it is possible for the boys when they are safe, to resume a relationship with their father then they should be able to do so.  The mother must, to a large extent, suppress her desire to alienate the boys from their father as a result of  the sexual allegations made by the children, but I am not so naive as to believe that in the circumstances of long and bitter litigation and with the allegations that have been made, that the mother would be able to actively promote a positive relationship between the boys and their father.  Perhaps the best that can be hoped for is that she will reinforce the positive memories of the father without accentuating the negative.  The orders have been made accordingly. 

Additional considerations

S 60CC(3)(a)

1. The young people at present do not wish to spend any time with their father.  This is particularly evident in the case of AK.  Counsel for the father argued that A had bonded with his father and that, in particular, there should be opportunities provided for that relationship to continue.  She commented about the apparent alienation of AK and the effect that may have on A. 

2. It is difficult in the circumstances, given the number of interviews the young people have had, the attitude of the mother and my finding that at least A has been subjected to significant abuse, to determine the extent and nature of the young people’s views.  I do not place any particular weight or significance upon those views in these circumstances.  There are other factors which dictate the orders that should properly be made. 

S 60CC(3)(b)

1. The young people have a close relationship with their mother and a relationship which, in the circumstances, is an appropriate one which indicates her willingness to provide for the young people’s physical, emotional and educational support.  The nature of the young people’s relationship with their father is complicated by the factors I have set out above and at the moment is a relationship with a past, but certainly not a present and possibly not a future. 

2. The father’s interaction with the boys demonstrates his lack of understanding and empathy with the young people’s needs.  To the extent that I have found that he has been involved in sexual abuse it is contrary to the young people’s best interests for any such relationship, whatever it may be, continue. 

3. Moreover, the father’s absolute lack of any sort of plan for how the young people might live and progress if they were to live with him is indicative of an inability on his part to understand the needs of the young people. In particular his almost cavalier dismissal of the problems that might arise if they were suddenly transferred from their mother to their father, who they have not seen for three years, suggests he has no empathy with the young people’s psychological and emotional needs. 

4. To add to this, the last minute production of a graduated program of time with him suggests that it was only at the very last minute that any thought was given to the problems that might exist if the children were to be placed in his care, and then only after such problems had been pointed out in Court.  Moreover the suggested arrangements are such that it would have been appropriate to put them to the experts for their advice, and no attempt was made to do so. 

5. Finally, the father seems to take the view that his conduct does not have an effect on others and his attitude both in Court and at the time to his threat to kill the mother is perhaps indicative of that as well. 

S 60CC(3)(c)

1. It would be difficult to imagine that the mother could be persuaded to facilitate and encourage a close and continuing relationship between the young people and their father.  I have already made comment on this and do not propose to add anything further.   I equally believe that the father, whose evidence is that the mother is responsible for the allegations, would not be able to facilitate the relationship between the young people and their mother. 

S 60CC(3)(d)

1. If there were to be the changes that the father sought in his orders, there would be a massive change to the young people’s lives.  He has indicated an almost total lack of understanding or preparedness to deal with those changes.  There is no suggestion that the changes would operate in the young people’s best interests at this point.  There are difficulties associated with the young people spending time with their father if they are living with their mother. These issues relate to long-term supervision which I have already alluded to.  In my opinion a long term plan for supervision of the time that the young people spend with their father is not in their best interests. 

S 60CC(3)(e)

1. There is nothing that needs to be said in relation to the practical difficulty and expense of the child spending time with the father. Both parties live in the Sydney metropolitan area and this was not raised as an issue by either party.

S 60CC(3)(f)

1. I have already commented about the capacity of the father to provide for the needs of the young people.  I am satisfied that the mother has that ability and indeed the father appears to support that proposition.  I make no further comment.

S 60CC(3)(g)

1. The young people come from a mixed Lebanese and Australian culture.  Neither parent raised culture as a matter of significance.  Religion may have been an issue in that the father follows Islam while the mother does not. However, again this was not raised as a particular matter which is relevant to the consideration of what is in the young people’s best interests.

S 60CC(3)h) 

1. The young people are not of aboriginal descent.

S 60CC(3)(i)

1. I do not propose to add anything to the comments I have already made about the attitude of each of the parents to the young people and to each of the parent’s responsibility as a parent.  The comments that I have made previously are indicative in relation to this matter and reinforce the orders that I make. 

S 60CC(3)(j) – (k)

1. Family violence has been a factor.  It is difficult to determine precisely the nature of any violence that may have occurred during the course of the time the parties were together.  I have placed emphasis on the father’s threat to kill the mother.  I do however accept that the mother has in the past exhibited some aspects of violence to the father. 

2. Neither issue is going to be affected by the orders that I make in the sense that the violence in so far as it has occurred has been between the parents and they will have no opportunity to revisit that matter in separation The exception to this is the father’s recent threat to kill the mother about which I make orders for the protection of the mother. The mother initially was pursuing her remedies for protection through the State system but revised her submissions to me to seek that I impose an injunction under the Act for her and the young people’s personal protection. I impose such an order.

3. I take account of the proceedings that have occurred in State courts and in particular I take account of the fact that a Family Violence Order was dismissed by a Local Court Magistrate.  I was urged to take account of the findings of that Magistrate in relation to the World Square incident.  I do not accept that in the circumstances there is an issue estoppel but I independently find in any event that the mother’s account of what occurred in the World Centre was inaccurate.

4. For the purposes of these reasons I comment that I do not believe that the fact that someone has not recorded something accurately or even has actively attempted to reconstruct an incident after the event means that that person must necessarily not be believed in relation to any other matter.  I found the mother’s evidence about the disclosures made to her by the young people to be credible and that in this regard her evidence was not weakened by quite rigorous cross-examination. 

5. I have already indicated previously that I found the father’s denials of the incidents referred to, to be consistent and that there was nothing in his demeanour which would indicate that he believed that he was telling an untruth.  However, for the reasons that I have indicated above I do not accept his denials in respect of the apartment incidents. 

S 60CC(3)(l)

1. It may have been appropriate in some circumstances to have made orders which would have effectively preserved the safety of the young people and bring the matter back for further consideration in due course.  However, I do not accept that this is appropriate.  While it would be to some extent kinder to the father to hold out some hope that in some point in the future the young people may wish to resume their relationship with him that may not occur.  At one point the father appeared to take the view that he would start life again with his new fiancée (of a fortnight’s standing at the time of the hearing) if things went contrary to the way in which he hoped they would.

S 60CC(m)

1. Generally I was concerned the father’s proposals were indeterminate and even at final hearing had no particularity.  The father’s proposals about the accommodation of himself and his sons have changed several times seemingly almost in the last few weeks.  His eventual proposal about his living in a flat apparently owned by his brother seems (notwithstanding his assertion that the flat has been kept available for him for five months) to have been a last minute thought.  The brother who was potentially available to corroborate this matter and was in fact physically in Court (as counsel for the father pointed out on the last day of trial), was not called on this matter at all.  I could not be satisfied that there are satisfactory arrangements about accommodation in place. 

2. Equally I could not be satisfied about the fact that the father has given any sensible thought to how he would provide supervision for the young people.  He has apparently started a job this week (that is, the week after the trial). The children are due to commence holidays next week and the father gave evidence about taking time off over Christmas when the young people were on holidays.  There was no evidence from his employer that such an arrangement might be acceptable to the employer, or that this was feasible for his job.  Otherwise the father is on a disability pension which may or may not make sufficient financial provision for the young people. 

3. He has given no indication of the role in any real sense of the word that his extended family would play in the care and socialisation of the young people. 

4. His fiancée gave no evidence, nor filed any affidavit about her views as to the future and how she might interrelate with the two young people.

5. Even if the other matters that I have referred to did not provide a basis for rejection of the father’s proposition that the young people should live with him the vagueness of his proposals in itself is enough to cause me to say that they should not be changed from their present living arrangements. 

6. I take account also of the provisions of s 60CC(4) in that given the highly conflicted circumstances of the parents I should not unduly regard the father as having failed to take opportunities to participate in decisions about major long term issues about the young people or to spend time with them or communicate with them.  Equally I do not regard as a factor influencing my decision the mother’s failure to facilitate those matters.  In doing so I take account of the circumstances that have existed since separation occurred. 

Conclusion

1. The orders that I make take account of the fact that the young people should live with their mother and she should make decisions about them.  They provide also that the father should be kept informed about significant matters in the young people’s lives including medical and schooling pursuits.  I have prescribed, (unsought by any of the parties), that the mother should provide a written report about the young people every six months.  I have also required that the mother to respond in an affirmative and positive terms about any enquiries the young people make in relation to the good times they had with or the good things they remember about their father.  I impose the injunctions that I have referred to above on the basis that it would provide some protection against any ill-considered violence on the part of the father.  The fact that he made such a threat to a person who was mandatorily required to report it, and in such proximity to the hearing, indicates on his part a lack of understanding of how others will regard his actions. 

I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Associate: 

Date:  15 December 2011

Appendices

Appendix 1

List of Exhibits

Description of exhibit	Exhibit number
Report of Dr [R]	J1
Family report of Ms [T] dated 2 May 2011	J2
Referral letter from Dr J to Dr E dated 8 August 2008	F1
Document from [the] Contact Centre	F2
Police record of interview dated 28 August 2003	F3
JIRT documents	F4
NSW Police records of the father	M1
C Community Health Centre records	ICL1
4 DOCS files	M2
Short Minute of Orders	F5

Appendix 2

Amended initiating application of the mother filed on 17 October 2008

Final Orders Sought

1. That the children, AK born … February 1999 and A born … March 2001 (hereinafter referred to as “the children”), live with the Mother.

2. That the Mother have sole parental responsibility for the children.

3. That the Father spend time with the children under supervision.

Case outline document on behalf of the Applicant Mother

Orders sought
(a)      The mother sets out the orders sought in her affidavit worn on 11/11/11.

a.Sole parental responsibility for the two children.

b.The two children reside with her.

c.That there be no contact between the boys and their paternal family.

d.Letter, cards and gifts will be passed on to the children if appropriate

Appendix 3

Response filed by the father, filed on 17 September 2008

Final orders sought

1. That the children spend equal time with both parties.

2. That both parties have equal shared responsibility for the children.

Outline of case prepared on 1 December 2011

At the time of writing this case outline (1.12.2011) the father was considering his instructions as the final orders he will seek at hearing.  A Minute of Order will be available by the commencement of the hearing.  The essence of the Minute of Order shall be that the father will seek orders in the alternative:

(a)Should the Court make a finding that the mother harmed the children by making false allegations, coaching or encouraging the children to make the allegations against the father and/or involved the children inappropriately and/or was responsible for creating the children’s hatred of their father then the father shall seek that the children come to live with him and that he have sole parental responsibility; or

(b)Should there be no finding as to abuse towards the children by either parent, then the father shall seek restoration of his relationship with the children on a graduated basis. 

Short minute of orders proposed by the respondent, dated 9 December 2011

1. /

2. That the children live with the mother.

3. That the mother organise for herself and the children to participate in intensive family therapy in consultation with Dr [R] or her nominee (“the therapist”), or such other therapist as determined by the Independent Children's Lawyer, within one month of the date of these Orders for the purpose of re-establishing the children’s relationship with the father.  The mother shall participate in accordance with the directions of the therapist. 

4. That the father shall participate in the intensive family therapy in accordance with the directions of the therapist.

5. That after six (6) months of the date of these Orders that father shall spend time with the children as follows:

   a.On a supervised basis for one hour each alternate week for the first two months after the making of these Orders with such supervision to be organised by the father through a recognised supervision service at a time allocated to the parties by such a service, and thereafter;

   b.On a supervised basis for two hours each alternate week for the following two months with such supervision to be organised by the father through a recognised supervision service at a time allocated to the parties by such a service, and thereafter;

   c.On an unsupervised basis for two hours each alternate Saturday for the following two months, and thereafter;

   d.For four hours each alternate Saturday for the following two months, and thereafter;

   e.Each alternate Saturday from 10:00am-5:00pm for the following two months, and thereafter;

   f.Each alternate Saturday from 10:00am until 5:00pm Sunday for the following four months, and thereafter;

   g.On alternate weekends from the conclusion of school on Friday until commencement of school on Monday, the first occasion to be the first weekend of each school term;

   h.Upon the commencement of 5(g) herein, then for half of each school holiday period as agreed between the parties.  Failing agreement, for the first half with the father and the second half with the mother in even numbered years and the first half with the mother and second half with the father in add numbered years. 

   i.Upon the commencement of 5(g) herein, every Islamic religious holiday from 7:00pm on the evening before until 2:00pm on the day of the religious holiday.

   j.Commencing in 2012, every father’s day from 10:00am until 7:00pm if the father is not otherwise spending time with the children.

   k.        At other times as agreed in writing by the parties.

6. That notwithstanding the above, the mother may spend time with the children every Mother’s Day from 10:00am until 7:00pm.

7. That both parties are to participate in any and all intake procedures, complete all required documents in relation to the supervision service and comply with all requests and procedures of the supervision service.

8. That for the purpose of changeovers in relation Orders 5(c), 5(d), 5(e), 5(f), 5(g), 5(h), 5(i), 5(j) and 5(k) that do not occur at the school, and unless otherwise agreed, the father shall collect the children from the mother at the McDonalds restaurant … at the commencement of his time with them and the mother shall collect the children from the father at the McDonalds restaurant … at the conclusion of the father’s time. 

9. That the parties are restrained:

   a.From discussing with either of the children any allegation made in these proceedings and to ensure that no other family member does so, and

   b.From showing the children any document pertaining to these proceedings;

   c.From denigrating the other party in the presence of hearing of the children or allowing a third party to do so in the presence or hearing of the children;

   d.From changing the surname of the children or allowing them to be called by any other name other than [AK Ahmadi] and [A Ahmadi].

10. That the father is entitled to receive from any school attended by the children copies of the children’s school reports, newsletters, photograph order forms and any other document ordinarily provided to parents.

11. That each party shall contact the other within 24 hours in the event of any hospitalisation, medical or other emergency relating to either of the children whilst in their care.

12. That each party shall ensure they keep the other informed of all issues relating to the children’s health including but not limited to details of medical treatment, attending doctors, prescription medication and each parent is authorised to obtain any such information as may be necessary from any medical treatment provider.

13. that each party shall be permitted to have liberal telephone communication with the children when the children are in the care of the other parent.

14. Each party shall keep the other informed as their telephone number and notify the other within 7 days of any change to these details.

15. /

16. These orders be explained to the children by the Independent Children's Lawyer as soon as reasonably practicable. 

Appendix 4

Orders proposed by the Independent Children’s Lawyer

1. That the children, namely, AK (born … February 1999) and A (born … March 2001) live with the mother.

2. That the mother have sole parental responsibility for the care, welfare and development of the children.

3. That there be no Order for the children to spend time with the father or to have communication with the father other than as provided for in these Orders.

4. That the mother forthwith authorise the children’s current schools (and any other schools which either of the children may attend from time to time) to provide to the father at a postal address to be nominated by the father copies of the following:-

   4.1.     Mid year and final year school reports for each of the children;

   4.2.     Annual class or school photographs for each of the children; and

   4.3.Any educational assessments for reports relevant to each of the children’s ongoing education.

5. That the father provide to the children’s current school (and any other schools which either of them may attend) a postal address at which he can be contacted and to ensure such schools have a current postal address for him at all times.

6. That the mother do all such things, give all such directions and sign all such documents as may be necessary to cause each of the children to participate in a course of therapy with such counsellor, counsellors or counselling organisations as may be nominated by the Director of Child Dispute Services at the Family Court of Australia at the Family Law Courts Building located on Level 2, 99 Goulburn Street, Sydney in the State of New South Wales or his or her nominee (the “therapist”) and such counselling to be directed to the issues raised in these proceedings.

7. That for the purpose of implementing Order 6, the mother provide or cause to be provided to the therapist copies of the following:

   7.1.     These Orders;

   7.2.Any reasons for Judgment delivered by his Honour Deputy Chief Justice Faulks at the completion of these proceedings.

7.3.A copy of the Chapter 15 Report dated 12 March 2009 by Dr R relied upon in the course of these proceedings; and

7.4.A copy of the Family Report dated 20 April 2011 by Ms T relied upon in these proceedings.

1. That in the event the therapist produces a report at any stage during the course of the counselling referred to in Order 6 above, the mother to provide a copy of such report to the father promptly upon receipt.

2. That in the event that either of the children are hospitalised, the mother do all such things that may be necessary to provide information to the father relevant to such hospitalisation as promptly as possible.

3. That each party provide to the other, a current postal address at which either of them may be reached and through which information relevant to the children can be communicated and each party to notify the other of any changes in such postal addressed within three (3) days of any such change.

Appendix 5

EVExxxxP	New South Wales Police Force COPS	Date: 16/04/ Time: 08:39: Page: 3
Event Ref No: E xxxx

Narrative Details Details  [sic]

(Accept)

- Disclosure of sexual assault.

- The reported child or young person is under the age of 18 years and is subject to ongoing risk of harm.

- The alleged offender is over the age of criminal responsibility ie 10 years.

This matter has been referred to [B] Joint Investigation Response Team.

This matter has been referred to [B] SAS service for further service provision.

Date/Time Created:

Created by:

16/02/2010 14:54

JIRT [B] – [TJA]

About 9am on Monday the 15^th of February 2010 the Victim, A AHMADI (…/…/2001) attended the [B] JIRT Office with his mother, [Ms AKIF].

The Victim participated in an audio-visual interview.  During the interview the Victim disclosed the following;

In 2008 and possibly in proceeding years the POI, [Mr AHMADI] (…/…/1968), who is the natural father of the Victim would take the Victim to an apartment believed to be in [X suburb].  The Victim said that this would happen most Sundays.  The Victim’s mother was under the belief that the POI was taking the Victim fishing.

The Victim said he would attend the apartment with the POI and the POI would open the door with a key.  The POI and Victim were always the first to arrive and soon after other men and their children would attend.  The Victim said that each man had their own key to the apartment.

The Victim said about 6 men other than the POI would attend as well as 5 boys (including the Victim) and 2 girls.  One of the men bought two children and the others just brought one. 

The Victim said there was a wooden stand near the door containing masks and wigs.  The Victim said as soon as the men entered the apartment they would put on a mask and wig.  The children did not wear them.  All of the men had beards except for the POI.  The Victim knew this as he could see the beard coming out from the masks.  The wigs were different colours and the POI would wear a pink one.  The masks were all different however the mouth wassimilar [sic] on them all (like the Joker from

EVExxxxP	New South Wales Police Force COPS	Date: 16/04/ Time: 08:39: Page: 4
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Narrative Details Details Details  [sic]

the Dark Knight).  One mask had a big nose, one had pimples and one had wrinkles.  The POI wore the mask with wrinkles.

The apartment had three bedrooms and there were video cameras set up on stands throughout the apartment.  No real names were used instead the children were called names such as [fictional names and initials, omitted].  The Victim was called [initials, omitted].

In the apartment the children were ordered to do ‘bad things’.  The children including the Victim were made to rub their bodies up and down the wall. They were clothed when they did this and were facing the wall. 

The men including the POI ordered the children to rub their bodies against each others.  They were wearing clothes when they did this.  The men including the POI would watch the children when they did this.  The Victim said the video cameras were recording when they were doing these things. 

The Victim said that the men would rub up against each other including the POI and kiss each other.

The Victim was shown a body chart and asked to identify a number of body parts and asked questions about them.  When the accused [sic] identified the penis he said that the POI and other children touched him on the penis and rubbed it when in the apartment.  The Victim said that sometimes he had clothes on and other times he wouldn’t.  The Victim would remove his clothes because the POI would tell him too [sic].  The Victim said the POI’s clothes and other children’s clothes were on.  The POI would say, “Do not tell mum or I’ll kill you.”

The Victim could not specify a single incident instead he spoke in general terms.  At the conclusion of the interview when asked if anyone else had done similar things to him he said his Grandmother (Maternal), … (…/…/1946) used to ‘show me her boobies.’  He also said his Grandma’s sister’s husband and Grandma’s brother used to offend against him by making him sit on their laps and touching his penis.

At this stage the POI will be offered the opportunity to be interviewed.  There are currently Family Court proceedings relating to custody of the children.  This is the second time the Victim has been interviewed by JIRT