Alam & Sayid
[2021] FamCA 564
•3 August 2021
FAMILY COURT OF AUSTRALIA
Alam & Sayid [2021] FamCA 564
File number(s): SYC 3215 of 2015 Judgment of: HARPER J Date of judgment: 3 August 2021 Catchwords: FAMILY LAW – PARENTING – Where the mother and independent children’s lawyer seek that the current parenting orders continue – Where the father seeks a reversal of the current parenting arrangements to see the children live with him and spend time with the mother – Where both parties question the credibility of the other – Where the father alleges a serious violent incident occurred between the mother and maternal grandfather and risk of sexual abuse between children in the mother’s home – Where evidence equivocal – Where no unacceptable risk found – where evidence discloses likelihood of excessive chastisement by the mother in the past – Where the children indicate a preference to remain in the primary care of the mother – Where both parties have parenting deficits.
FAMILY LAW – PROCEDURAL – Leave to reopen – Where the mother fell pregnant to her new husband between the time judgment was reserved and when it was delivered – Where there was no dispute about the fact of the pregnancy – Where the father applied for leave to reopen to lead evidence of the pregnancy – Where this was considered a material fact which could affect the outcome – Leave granted.
FAMILY LAW – EVIDENCE – EXPERTS – Parenting proceedings – Where Evidence Act, 1995, s 79 does not apply by reason of s 69ZT(1) of the Family Law Act, 1975 – Where expert evidence of family report admitted – Where father challenges the weight to be attributed the report – Whether weight of expert report should assessed in part by reference to principles which govern admissibility of expert evidence where s 79 applies – Where father contended the expert did not expose his reasoning, constructed his own facts – Where held the expert’s opinions were inferences drawn from communicable data and he drew inferences from his observations of both parents.
FAMILY LAW – EVIDENCE – INFERENCES – Discussion of principles of inferential reasoning in parenting maters – Rule in Jones v Dunkel – Where other principles of inferential reasoning applicable – Disclosures by children to one parent where high parental conflict – Where father contends the mother failed to call maternal grandfather so that inferences should be drawn in his favour.
Legislation: Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Evidence Act 1995 (Cth) ss 55, 79, 128, 140
Family Law Act 1975 (Cth) ss 4AB, 60CA, 61DA, 64B, 65AA, 65DAA, 65DAB, 65ZN, 65ZT, 102NA
Family Law Rules 2004 (Cth) rr 15.63, 416.63
Cross on Evidence, 12th Australian edition (J.D. Heydon, 2020, Sydney: Butterworths)
Cases cited: Adamson & Adamson (2015) 51 FamLR 626
Alam & Sayid and Anor [2016] FamCA 580
Amador & Amador (2009) 43 Fam LR 268
ASIC v Hellicar (2012) 247 CLR 345
Banks & Banks (2015) FLC 93-637
Bant & Clayton (2019) FLC 93-924
Blatch v Archer (1774) 1 Cowp 63 at 65
Bondelmonte v Bondelmonte (2016) 259 CLR 662
Briginshaw v Briginshaw (1938) 60 CLR 336
Carlson & Fluvium [2012] FamCA 32
Cox & Pedrana (2013) FLC 93-537
Damiani & Damiani (No. 2) [2009] FamCAFC 215
Donaghey & Donaghey (2011) 45 Fam LR 183
Dundas & Blake [2013] FamCAFC 133
Fabre v Arenales (1992) 27 NSWLR 437
Fitzwater & Fitzwater (2019) 60 Fam LR 212
Froth & Schneider [2011] FamCA 378
G & H (1994) 181 CLR 387
Gaffney & Gaffney [2012] FamCAFC 140
Ghazal v GIO (NSW) (1992) 29 NSWLR 336
Goode & Goode (2006) FLC 93-286
Hampton Court Ltd. v Crooks (1957) 97 CLR 367
Heath & Hemming (No 2) [2011] FamCA 749
HG v R (1999) 197 CLR 414
Jess & Garvey [2018] FamCAFC 44
Jillet & Murdoch [2018] FamCA 313
Johnson & Page (2007) FLC 93-344
Jollie & Dysart [2014] FamCAFC 149
Jones v Dunkel (1959) 101 CLR 298
Kernot v Matson (2008) 39 Fam LR 695
Lithgow City Council v Jackson (2011) 244 CLR 352
Lovett & McGregor [2019] FamCAFC 253
M v M (1988) 166 CLR 69
Maldera & Orbel [2014] FamCAFC 135
Marvel & Marvel (2010) 240 FLR 367
McGregor & McGregor (2012) FLC 93-507
Morse & Duarte (2017) 58 Fam LR 13
MRR v GR (2010) 240 CLR 461
Murdock & Madden [2011] FamCAFC 219
Newport & Newport [2016] FamCA 1066
O'Donnell v Reichard (1975) VR 916
Payne v Parker [1976] 1 NSWLR 191
Pownall v Conlan Management Pty Limited (1995) 12 WAR 370
Sayid & Alam [2020] FamCA 400
Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275
Smith v Samuels (1976) 12 SASR 573
TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361
Tibb & Sheean (2018) 58 Fam LR 351
Number of paragraphs: 299 Date of last submission/s: 8 February 2021
2 March 2021
5 March 2021Date of hearing: 27 July 2020 – 30 July 2020 Place: Sydney Counsel for the Applicant: Mr Richardson SC Counsel for the Applicant: Ms Lawson Solicitor for the Applicant: Barkus Doolan Counsel for the Respondent: Mr Cairns Solicitor for the Respondent: Mark Whelan Lawyers Pty Limited Counsel for the Independent Children’s Lawyer: Dr McConaghy Solicitor for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
SYC 3215 of 2015 BETWEEN: MR SAYID
Applicant
AND: MS ALAM
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARPER J
DATE OF ORDER:
3 AUGUST 2021
THE COURT ORDERS THAT:
Reopen
1.That the applicant father be granted leave to reopen the evidence, in accordance with his application made on 8 December 2020.
Parental responsibility, spend time with, special days, schooling
2.That the parents have equal shared parental responsibility for the children B born … 2010, C born … 2012 and D born … 2016 ("the children").
3.That the children live with the mother.
4.That the children spend time with the father:
(a)During school terms:
(i)for two weekends out of every three, from the end of school on Friday until 9.00 am or the commencement of school on Tuesday;
(ii)On the Monday following the weekend the children have not been with the father, from the end of school on Monday until the commencement of school on Tuesday;
(b)During school holidays as agreed, or failing agreement:
(i)For the first ten days of the autumn, winter and spring school holidays each year, from the end of school on the last day of term until 5.00 pm on the tenth day of the holiday period;
(ii)For the first four weeks of the summer school holidays each year, from the end of school on the last day of terms until 5.00 pm on the 28th day of the holiday period
(c)On special occasions each year as follows:
(i)From 9.00 am on the day of Eid-al-Fitr until 3.00 pm three days later in odd-numbered years;
(ii)From 9.00 am on the ninth day of Thul-Hijjah (the day of Arafat) until 5.00 pm four days later in even-numbered years;
(iii)On Father's Day from 9.00 am until 5.00 pm should the children not otherwise be with the father on that day or at such times as may be agreed between the parties;
(iv)For a period of two hours on each of the children's birthdays and the father's birthday if the children are not otherwise with the father, failing agreement to be from 3pm until 5pm;
5.Notwithstanding other orders, the children will be with the mother (and the father's time with the children will be suspended if necessary) on special occasions each year as follows:
(a)From 9.00 am on the day of Eid-al-Fitr until 3.00 pm three days later in even-numbered years;
(b)From 9.00 am on the ninth day of Thul-Hijjah (the day of Arafat) until 5.00 pm four days later in odd-numbered years;
(c)From 9.00 am on Mother's Day until 9.00 am or the commencement of school on the following day;
(d)For a period of two hours on each of the children's birthdays and the mother's birthday if the children are not otherwise with the mother, failing agreement to be from 3.00 pm until 5.00 pm;
(e)On other occasions as agreed between the parties.
6.That the parents are each permitted to telephone to speak to the children between 5.00 pm and 6.00 pm on any day that the children are in the other parent's care, and the parent with whom the children are spending time will facilitate the children receiving that call.
7.That unless otherwise agreed in writing between the parties, the children are to be enrolled at school as follows:
(a)The children are each to remain enrolled at E School until they complete Year 6;
(b)B and D are to be enrolled at GG School from the commencement of Year 7, and the parties are each to do all things and sign all forms necessary to facilitate this enrolment as soon as possible;
(c)C is to attend HH School from the commencement of Year 7 and the parties are each to do all things and sign all documents necessary to facilitate this enrolment as soon as possible;
It is noted that this order has been made by the Court on the basis that the father agrees to be entirely responsible with all costs associated with the children’s schooling, including enrolment fees, school fees, school uniforms and equipment and excursion fees.
8.That each parent is hereby authorised to communicate directly with any school, child care service or extracurricular activity provider attended by any of the children, to receive copies of all reports, newsletters and other documents provided to parents and to attend any school events or extracurricular events to which parents are invited.
9.That the parents are each restrained from doing any of the following:
(a)Denigrating, criticising or otherwise speaking negatively about the other parent or members of the other parent's family in the presence or hearing of the children;
(b)Discussing these proceedings or any of the allegations raised in evidence in these proceedings with or in the presence or hearing of the children;
(c)Questioning or initiating conversation with the children or any of them about the contents of their dealings with the school counsellor or any other counsellor or therapist;
(d)Encouraging or coercing the children or any of them to withhold information from or mislead the other parent or any counsellor, teacher or other professional involved in their care;
(e)Recording the children by any means for the purpose of gathering evidence for use in these or any other court proceedings;
(f)Using the children to convey messages to the other parent by any means;
(g)Enrolling the children in any extracurricular activities that take place in time when the children will be in the care of the other parent without the prior written consent of the other parent;
Using any form of physical discipline upon the children.
That up to and including 13 October 2023, the mother is hereby restrained from allowing the children to:(h)Reside under the same roof with their maternal grandfather Mr JJ Alam
(i)Come within 20m of their maternal grandfather other than under both the following conditions:
(i)In a public place; and
(ii)At a gathering where the children remain in the presence of at least two adults other than the mother and the maternal grandfather at all times.
10.That the parties are to do all things necessary to facilitate the children continuing to attend upon psychologist Ms NN for counselling, with such counselling to occur on the following basis:
(a)The purpose of the counselling is to provide a safe place for the children to express their feelings, and to support them to cope with the ongoing consequences of the separation of their parents, and the parties are each to afford the children privacy in this regard and to refrain from questioning the children or the counsellor about the content of the counselling;
(b)The parents are each to attend individual appointments with Ms NN if requested to do so by her, to receive feedback about the progress of the children and parenting education about how best to support the children's needs;
(c)The parties are to continue to facilitate the attendance of each of the children upon Ms NN until such time as Ms NN indicates that it is no longer necessary or helpful for any or all of the children;
(d)The father is to be responsible for the costs of the family's attendance upon Ms NN, including individual appointments attended by the mother but only in respect of those requested by the psychologist;
(e)The Independent Children’s Lawyer (“ICL”) will forward a copy of these orders to Ms NN within 7 days of the orders being made.
11.The parents are each to keep the other parent informed of their current residential address, mobile telephone number and email address at all times.
12.Communication between the parties in relation to the care of the children is to occur by email or text message except in the case of an emergency, and such communication is to be expressed in a polite and businesslike manner at all times.
13.That the parents are each to keep the other informed in a timely manner of any serious illness or injury suffered by any of the children while in their care, including any hospitalisation, and are to provide the other parent with the name and contact details of any health care professional who has provided treatment to any of the children and authorise such professional to discuss the child's health and treatment with the other parent.
14.The parties are each restrained from removing or attempting to remove the children or any of them from the Commonwealth of Australia without the prior written and verified consent of the other party in writing, and it is requested that the Australian Federal Police give effect to this order by placing the names of the children B born … 2010, C born … 2012 and D born … 2013 on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Airport Watch List until further order of the court.
COVID-19
15.At all times, both parties shall take all necessary steps to comply with any state and federal government orders and directions made by reason of the COVID-19 pandemic, including maintaining appropriate social distancing guidelines.
16.That both parties shall use their best endeavours to communicate with reasonable regularity in accordance with these orders, to seek agreement on the management of issues affecting the children arising from the COVID-19 pandemic.
17.That during any period of mandatory self-isolation imposed on either party:
(a)The isolated party communicate as soon as practicable that a period of mandatory self-isolation has been imposed to the other party.
(b)If the mandatory self-isolation of an isolated party includes the children, then these Orders for the other party to have face to face time, or live, with the children are suspended for the duration of the mandatory self-isolation period. During any such period, communication shall take place between the parties by electronic means, and shall include all necessary lawful steps to enable an isolated party to communicate with the children by electronic means.
(c)If the mandatory self-isolation of an isolated party does not include the children, then these Orders for the isolated party to have face to face time, or live, with the children are suspended for the duration of the mandatory self-isolation period. During any such period, communication shall take place between the parties by electronic means, and shall include all necessary lawful steps to enable an isolated party to communicate with the children by electronic means.
Disputes or Variations
18.The process to be used for resolving disputes about the interpretation, implementation or enforcement of Orders 1 to 15 shall be as follows:
(a)The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth) (“the Act”) or by the Commonwealth Attorney General; or
(b)The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.
(c)Before an application is made to a court for a variation of these Orders to take account of the changing needs or circumstances of the child or of the mother or the father:
(d)The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Act or by the Commonwealth Attorney General; or
(e)The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.
19.Pursuant to sections 65DA(2) and 62B of the Act, 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 the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Costs
20.If any party seeks an order for costs, an appropriate application to the Court may be made within twenty-eight (28) days of today’s date (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my Chambers. If no such application is made within the time period specified, no order will be made as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Alam & Sayid has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J
These are property and parenting proceedings between the applicant mother, Ms Alam ("the mother"), and the respondent father, Mr Sayid ("the father"). The parties were married in 2009 in an Islamic ceremony. They separated on a final basis in either October 2015, according to the father, or May 2016, according to the mother.
In late 2019, I made orders for the parenting aspect of these proceedings to be dealt with before any financial or property issues. This judgment is therefore in respect of parenting only.
The children of the relationship, and the subject of the proceedings, are Master B, born in 2010, Miss C, born in 2012, and Master D, born in 2013 (together referred to as "the children").
The mother has remarried Mr PP, and they have a child of that relationship, Miss QQ, born in 2019. Mr PP also has two daughters from his former marriage, Miss RR who is currently 15 years old and Miss SS who is currently eight years old ("the step children"). The step children live with Mr PP and the mother each Sunday night until either Tuesday night or Wednesday morning.[1]
[1] Affidavit of the Mother filed 12 May 2020, pg. 33 [166].
Under the current parenting arrangement, which has been in place since 18 July 2016, as amended on 2 December 2016, the children live with the mother and the parties have equal shared parental responsibility for the children. The father spends time with the children for two weekends out of every three, commencing on Friday after school and continuing until before school on Monday, as well as after school on the Monday after the weekend that the children are not spending time with him. The orders also make provision for the father to spend time with the children on special occasions, and blocks of approximately 10 nights in the school holiday period.
The father currently resides in Suburb OO and the mother resides in Suburb K.
The Independent Children's Lawyer ("ICL") proposes, in summary, that the current parenting arrangement remain in place with the father to have overnight time every third Monday, substantial holiday time, and on special occasions with the children. The ICL also proposes a number of restraints including but not limited to either party being restrained from recording the children for the purposes of gathering evidence or physically disciplining the children, and proposes that the maternal grandfather only be allowed to spend time with the children provided it is at a public place and at a gathering where the children remain in the presence of at least two adults other than the mother and the maternal grandfather at all times. The ICL also proposes that the parties be restrained from travelling internationally with the children without the prior written and verified consent of the other party, with the children's names to be placed on the Airport Watch List until such time the Court orders the removal of such, and for the children to continue to attend upon Ms NN.
The mother initially sought orders for the children to continue to live with her and sole parental responsibility for the children, with the father to continue to spend time with the children under the current arrangement, with additional time over the Christmas period and half of each school holidays. However, by the end of the trial, the mother substantially consented to the orders proposed by the ICL, subject to some small amendments. Importantly, the mother abandoned her claim to sole parental responsibility for the children.
The father made a detailed proposal which, in summary, seeks orders for sole parental responsibility for the children, for the children to live with him, and for the children to spend time with the mother for two weekends out of every three from after school Friday until 6:00 pm on Sunday, as well as every third Monday until 7:00 pm. He also includes provisions for the mother to spend time with the children on special occasions and for one half of the school holidays. The father otherwise seeks a range of restraints which include a restraint on the mother from permitting the children to reside or come in contact with the maternal grandfather, and from permitting the step children from occupying or sleeping in the same bedroom as C when staying overnight in the same premises. The father also seeks orders about physical discipline and international travel.
By the end of the trial the father continued to press for his proposed orders to be made, but agreed that if his primary case was rejected by the Court, the orders proposed by the ICL should be made, again subject to some small amendments.
Therefore by the end of the trial, the proposal of the ICL broadly became the agreed position of the parties, subject to the Court rejecting the case of the father. In the event the ICL's proposal was broadly accepted, each party also proposed small amendments to the ICL's proposal, and were unable to agree upon secondary schooling for the children. I will return to the detailed proposals later in these reasons.
It can be seen that the allocation of parental responsibility to the father alone, and proposal that the primary residence of the children should change from mother to father, remain central areas of debate.
As will become apparent in the course of these reasons, this case presented issues some complexity and difficulty. The proposals of both parties and the ICL have merit. It should be noted here that when judgment had been drafted, but not delivered, the father applied to reopen the evidence. This application is dealt with later in these reasons. Unfortunately, although the father's application was limited in scope, the consideration of the arguments of all parties and determination of the application had to be undertaken during a period when the resources of the Court have been under great pressure, and as a result delivery of judgment has been delayed.
BACKGROUND
The father was born in Country TT in 1981 and is 39 years of age.
The mother was born in Country R in1990 and is 31 years of age.
According to the father he graduated with a Bachelor degree from a university in Sydney on 15 September 2004, and completed a Graduate Diploma conducted by a professional association on 11 August 2006. [2]
[2] Affidavit of the Father filed 27 April 2020, pg. 4 [16].
The father commenced working at Company UU (now known as Company VV) on 17 September 2007. [3]
[3] Ibid, pg. 4 [17].
The mother states that she and the father met in November 2007 when she was 17 years old, and in Year 11 of high school, and the father was 26 years old.[4]
[4] Affidavit of the Mother filed 12 May 2020, pg. 2 [4]-[5].
In 2008, members of the mother's family including the paternal grandfather returned to Australia to live for a time.
The marriage was arranged shortly after introduction by their families, and in 2009 the parties were married in an Islamic ceremony. They commenced cohabitation thereafter and moved into the father's home at WW Street, Suburb J.[5]
[5] Affidavit of the Mother filed 12 May 2020, pg. 3 [8].
The father graduated with a Masters degree from another university in Sydney on 4 May 2009, and ceased his then employment on 13 August 2010.[6] The father deposes that he thereafter accepted a position as at XX Pty Ltd, and was also the sole shareholder and director of Sayid Pty Ltd (formerly known as Sayid & Company Pty Ltd).[7]
[6] Affidavit of the Father filed 27 April 2020, pg 4 [17].
[7] Ibid, pg 4 [17] & [19].
The father states that in October 2009 the mother travelled to Country TT and Country A on a holiday with her family, which was part of a pattern of such travel which included the children.[8]
[8] Ibid, pg 6 [34].
B, the first child of the marriage, was born in 2010. He is currently ten years of age.
C was born at 38 weeks in 2012. She is the second child of the marriage, and is presently nine years of age.[9]
[9] Affidavit of the Mother filed 12 May 2020, pg 11 [50].
The mother states that when C was six months old, she travelled with B and C to Country A with her family for approximately two months.[10]
[10] Ibid.
D, the third child of the marriage, was born in 2013 and is presently seven years of age.
The parties purchased a property at G Street, Suburb H ("G Street") in about April 2013, and the parties moved into the property in September 2013. [11] It became the final matrimonial home.
[11] Ibid, pg 4 [17].
The father states that in early 2014 he invested in S Pty Ltd, and that some months beforehand he had sold part of his interest in Sayid Pty Ltd to his brother. [12] By mid-to-late 2014, he reduced his hours with XX Pty Ltd, and a few months later ceased to work there. He instead focussed on his business interests in Sayid Pty Ltd and S Pty Ltd.[13]
[12] Affidavit of the Father filed 27 April 2020, pg. 5 [26].
[13]Ibid, pg. 5 [27].
The parties initially separated under one roof in December 2014. The wife and the children remained in G Street with the husband until September 2015. The mother then relocated with the children to the maternal grandfather’s home in Suburb K. [14]
[14] Affidavit of the Mother filed 12 May 2020, pg. 6 [29].
In early February 2015, an audit process was commenced by the Commissioner of Taxation into the husband's financial affairs. Between March and May 2015, it appears the husband moved substantial funds, almost $3 million, to Country A. After the Commissioner became aware of the transfer of this money out of Australia by the husband, the Commissioner applied for and obtained freezing orders in the Federal Court against the husband's assets.
The mother states that in April 2015 the father organised a holiday for her and the children to travel to Country A and City YY to visit family, but that this never eventuated. [15]
[15] Ibid, pg. 7 [31].
The mother commenced property proceedings in the Federal Circuit Court of Australia on 20 May 2015.
According to the father, in the weeks prior to 14 September 2015 the mother had become increasingly frustrated with him due to the Federal Court freezing orders preventing any access to funds.[16]
[16] Affidavit of the Father filed 27 April 2020, pg. 9 [59].
The father contends that on 14 September 2015, the mother departed G Street without notice to reside with the maternal grandfather and then returned, again without notice, on 23 October 2015. At this point, according to the father, the mother wanted to take the children on an overseas holiday. The father says the parties debated this request for hours, but he did not consent, fearing the mother would not return to Australia with the children.[17] The following day the mother returned to live with her parents.
[17] Ibid, pg. 20 [160].
The father states that the parties separated on a final basis on 27 October 2015. I note here also that the father states that the maternal grandfather left Australia for Country A on this day.[18]
[18] Ibid, pg. 20 [160].
The mother said that in November 2015 she left G Street and returned to live at her parents' house at the Suburb K property, but after a short time she returned in an attempt at reconciliation.[19] The mother said that the attempt at reconciliation was unsuccessful and she returned to her parents' house with the children one day later.[20]
[19] Affidavit of the Mother filed 12 May 2020, pg. 25 [128].
[20] Ibid.
A significant part of the father's case was that, prior to the departure of the maternal grandfather, an incident took place in which it is alleged the children witnessed him bashing the mother. I will return to the details of this incident later in these reasons.
The father states that in December 2015, the mother demanded that he allow her to leave the country with the children.[21] Accordingly, he sought that the children's names be placed on the Airport Watchlist. On 12 January 2016, the Australian Federal Police ("AFP") confirmed the children had been placed on the Watchlist. [22]
[21] Affidavit of the Father filed 27 April 2020, pg. 3 [7].
[22] Ibid, pg 20 [162].
By his Amended Response filed 26 February 2016, the father instituted parenting proceedings.
In his accompanying Notice of Risk, the father alleged that the mother:
(a)Has a history of self-harm;
(b)Physically abused the children and believes that hitting the children is an appropriate method of discipline;
(c)Left B alone in a car resulting in the Department of Family and Community Services (as it was then known) and police being called; and
(d)May attempt to take the children to Country A and not return.
That night, being Friday, 26 February 2016, the Australian Federal Police attended the Sydney International Airport because of a family law border alert. The mother had been detained with the children trying to board a flight to Country A. According to subpoenaed documents, the mother informed the Australian Federal Police that she had purchased tickets that morning to Country A to visit her mother who was sick. The father contends that the mother intended to leave the country with the children after having been served with his Application. The mother was cross-examined about this incident. It was put to her that she forged the father's signature on a passport application for B. She denied this, but I am satisfied on balance that she did so.
On 1 March 2016, the proceedings were transferred to this Court. An Independent Children's Lawyer was appointed. Further interim orders provided for the children not to be removed from the Commonwealth of Australia, with the children's names being placed on the Airport Watch List and for the father to spend time with the children on a regime of two weekends out of three commencing after preschool or school on Friday until the commencement of school on Monday.
The Commissioner for Taxation was also joined as a party to the proceedings in relation to the financial dispute.
In early March 2016, the mother initiated an attempt at reconciliation. The male members of both families became involved in the marital dispute, together with a religious leader of the parties' wider community. The mother states that on 11 March 2016, with the assistance of Shaikh ZZ, she and the father came to an agreement to effect a reconciliation. They signed an agreement.[23]
[23] Affidavit of the Mother filed 12 May 2020, pg. 18-19 [88]-[89].
According to her, from 11 to 14 May 2016 she and the father lived as husband and wife at G Street.[24] However, there was then a breakdown of agreement on 16 March 2016. The parties separated, but continued living under one roof.
[24] Ibid, [90].
The mother states she left G Street for the third and final time in May 2016. [25] The father agrees that on 9 May 2016 the mother left on a permanent basis.[26]
[25] Ibid, pg. 23 [114].
[26] Affidavit of the Father filed 27 April 2020, pg. 27 [220].
Thereafter, the mother lived with her parents and siblings at AB Street, Suburb K until October 2016. This was a property that her parents rented from her paternal aunt. [27] On or about 24 October 2016, the mother moved into a unit with the children on AC Street in Suburb K until she remarried in late 2017 and relocated to Suburb AD.[28]
[27] Affidavit of the Mother filed 12 May 2020, pg. 23 [114].
[28] Ibid, [115].
On 11 May 2016, according to police evidence, the father was charged pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) with one count of intimidation with intention of causing fear of physical or mental harm to the mother. The police made an application for an ADVO against him for the protection of the mother. On 25 May 2016 an interim ADVO was granted at the Local Court. The father asserts that the charge and application for ADVO against him were both dismissed in subsequent criminal proceedings.[29]
[29] Affidavit of the Father filed 27 April 2020, pg. 29 [239].
The applications of the parties for interim parenting orders came before Watts J for interim hearing on 11 July 2016, and judgment was delivered on 18 July 2016 (see Alam & Sayid and Anor [2016] FamCA 580). Watts J noted at [10] that the parties "substantially agreed" upon interim parenting orders. All previous interim parenting orders were discharged, with the parties to have equal shared parental responsibility and for the children to live with the mother. The father was to spend time with the children for two weekends out of every three following conclusion of school/preschool/daycare on Friday and each third Monday from the conclusion of school/preschool/daycare until 7:00 pm, as well as on special occasions.
Other orders included for the parents to enrol in two courses, being "Keeping Kids in Mind" or an equivalent parenting after separation course and "Circle of Security", and for the parties to enrol B at E School. The parties were to provide the Sydney Registry of this Court each of the children's passports, and the children were not to travel overseas without leave of the Court.
The parties were also to ensure that B recommence fortnightly occupational therapy with Ms F and commence speech therapy to address his dysfluency, with the father to pay the costs of such.
The mother states that at the end of 2016, the maternal grandfather and her siblings permanently relocated to Country A while her mother remained behind and lived with her from about February to March 2017 when she too moved to Country A permanently.[30]
[30] Affidavit of the Mother filed 12 May 2020, pg. 24 [120].
On 2 December 2016, consent orders were made by Registrar Chayna for the children to spend time with the father during school holiday periods as agreed, and failing agreement, for approximately 10 night blocks per school holiday period. According to the father, the children have generally spent one half of school holidays with each parent.[31]
[31] Ibid, pg. 32 [259].
According to the mother, in 2017 she completed a diploma and worked for two weeks as a community worker. [32]
[32] Ibid, pg. 4 [14].
According to the father, between 22 December 2017 and 14 January 2018, and again on 28 September 2018 to 13 October 2018, the mother travelled to Country A to visit her family while the children stayed with the father.[33]
[33] Affidavit of the Father filed 27 April 2020, pg. 33 [263]-[264].
In late 2017, the mother remarried Mr PP. According to the mother, she did not live with him in a de facto relationship prior to her relationship.[34]
[34] Affidavit of the Mother filed 12 May 2020, pg. 23 [113].
In 2019, Miss QQ, the child of the mother and Mr PP, was born.[35]
[35] Ibid, pg. 24 [122].
The father states that he agreed to have the children in his care from 20 December 2019 until 27 January 2020. According to the father, the mother left Australia on 24 December 2019 and returned to Australia on 25 January 2020.[36]
[36] Affidavit of the Father filed 27 April 2020, pg. 33 [269]-[270].
The father states that on 22 March 2019 the children made further disclosures to him about the maternal grandfather. I will return to these later in these reasons. The father made a notification to the Department of Family and Community Services ("FACS") (as it was then known).
On 16 April 2019, the matter first came before me for a First Day Less Adversarial Trial and I made orders by consent appointing Dr FF, child and family psychologist, as a single expert in the proceedings.
The mother states that on 13 May 2019, FACS informed her they had received a report of family violence and neglect in respect of the children. On 14 May 2019, two FACS representatives spoke with her at home, and later returned in the evening to speak with the children.[37]
[37] Affidavit of the Mother filed 12 May 2020, pg. 32 [159].
The father states that as a result of the disclosures about the maternal grandfather, he filed an Application in a Case on 31 May 2019 seeking, inter alia, a range of restraints which included but were not limited to the mother being restrained from permitting the children from residing at any premises occupied by the maternal grandfather, or from coming within 20 metres of the maternal grandfather and maternal great uncle, Mr AE Alam. This is a restraint the father also seeks on a final basis.
On 4 July 2019, I made orders listing the father's Application in a Case filed on 31 May 2019 for interim hearing on 7 November 2019.
According to the mother on 19 July 2019, FACS wrote to her stating that their assessment of her had been completed and that there were no current child protection concerns in relation to the children. [38]
[38] Ibid.
On 7 November 2019, a Preliminary Report by Dr FF dated 6 November 2019 was released to the parties. This report was prepared for the purposes of assisting with the interim hearing. I also made further orders by consent in respect of both parenting and property which dealt partly with the father's Application in a Case, with the balance adjourned to a date to be fixed. On 8 November 2019, I also released the completed report of Dr FF of the same date.
On 30 January 2020, I listed the parenting aspect of these proceedings for final hearing for six days commencing on 27 April 2020. However, when the matter was listed for mention on 9 April 2020, these dates were vacated due to neither party having filed a Consolidated Trial Affidavit and the mother contending she was unable to proceed with the final hearing in circumstances where her access to financial resources was significantly impacted by the COVID-19 pandemic. She claimed that she had made an application to Legal Aid which she had been informed was unlikely to succeed. On that occasion, the parenting aspect of the proceedings were re-listed for final hearing to commence on 29 May 2020 with an estimate of six days.
The solicitors for the mother filed a Notice of Ceasing to Act on 28 April 2020. As a result the mother became unrepresented.
On 15 May 2020, in light of the allegations of family violence made in the parties' affidavit material, I exercised discretion pursuant to sub-paragraph 102NA(1)(c)(iv) for the provisions of sub-section 102NA(2) to apply to cross-examination and I vacated the final hearing dates.
I then made orders listing the parenting aspect of these proceedings for interim hearing on 29 May 2020 with the parties to rely upon their Trial Affidavits without cross-examination, together with the Expert Evidence produced by the Single Expert, Dr FF: Sayid & Alam [2020] FamCA 400.
The interim hearing, however, did not proceed because the Court was able to offer the parties a final hearing in the week commencing 27 July 2020 and on that basis no party pressed for interim relief.
The trial was conducted face-to-face in the week commencing 27 July 2020 in accordance with the face-to-face in-court protocol. All parties were represented by counsel. Judgment was reserved on 31 July 2020.
On 8 December 2020, the father filed an Application in a Case seeking leave to reopen the evidence. This application was mentioned on 17 December 2020, and orders were made listing the application to interim hearing. By consent, however, orders were made on 2 February 2021 vacating the hearing, and ordering the parties to file and serve written submissions instead. Judgment was then reserved on 15 March 2021. This judgment also deals with the father's application to reopen the evidence.
PROPOSALS OF THE PARTIES
73. Independent Children’s Lawyer seeks the following orders in accordance with Amended Proposed Minute of Final Orders (Exhibit “ICL 2”) (the orders begin at paragraph 2):
2. That the parents have equal shared parental responsibility for the children B born … 2010, C born … 2012 and D born … 2016 (“the children”).
3. That the children will live with the mother.
4. That the children will spend time with the father:
(a) During school terms:
i. for two weekends out of every three, from the end of school on Friday until 9am [sic] until the commencement of school on Monday;
ii. On the Monday following the weekend the children have not been with the father, from the end of school on Monday until the commencement of school on Tuesday;
(b) During school holidays as agreed, or failing agreement:
i. For the first ten days of the autumn, winter and spring school holidays each year, from the end of school on the last day of term until 5pm on the tenth day of the holiday period;
ii. For the first four weeks of the summer school holidays each year, from the end of school on the last day of terms until 5pm on the 28th day of the holiday period
(c) On special occasions each year as follows:
i. From 9am on the day of Eid-al-Fitr until 3pm three days later in odd-numbered years;
ii. From 9am on the ninth day of Thul-Hijjah (the day of Arafat) until 5pm four days later in even-numbered years;
iii. On Father’s Day from 9am until 5pm should the children not otherwise be with the father on that day;
iv. For a period of two hours on each of the children’s birthdays and the father’s birthday if the children are not otherwise with the father, failing agreement to be from 3pm until 5pm;
(d) On other occasions as agreed between the parties.
5. Notwithstanding other orders, the children will be with the mother (and the father’s time with the children will be suspended if necessary) on special occasions each year as follows:
(a) From 9am on the day of Eid-al-Fitr until 3pm three days later in even-numbered years;
(b) From 9am on the ninth day of Thul-Hijjah (the day of Arafat) until 5pm four days later in odd-numbered years;
(c) From 9am on Mother’s Day until 9am/the commencement of school on the following day;
(d) For a period of two hours on each of the children’s birthdays and the mother’s birthday if the children are not otherwise with the mother, failing agreement to be from 3pm until 5pm;
(e) On other occasions as agreed between the parties
6. That the parents are each permitted to telephone to speak [sic] to the children between 5 and 6pm on any day that the children are in the other parent’s care, and the parent with whom the children are spending time will facilitate the children receiving that call.
7. That unless otherwise agreed in writing between the parties, the children are to be enrolled at school as follows:
(a) The children are each to remain enrolled at E School until they complete Year 6
(b) B and D are to be enrolled at GG School from the commencement of Year 7, and the parties are each to do all things and sign all forms necessary to facilitate this enrolment as soon as possible;
(c) C is to attend HH School from the commencement of Year 7 and the parties are each to do all things and sign all documents necessary to facilitate this enrolment as soon as possible;
(d) The father is to be entirely responsible with all costs associated with the children’s schooling, including enrolment fees, school fees, school uniforms and equipment and excursion fees.
8. That each parent is hereby authorised to communicate directly with any school, child care service or extracurricular activity provider attended by any of the children, to receive copies of all reports, newsletters and other documents provided to parents and to attend any school events or extracurricular events to which parents are invited.
9. That the parents are each restrained from doing any of the following:
(a) Denigrating, criticising or otherwise speaking negatively about the other parent or members of the other parent’s family in the presence or hearing of the children;
(b) Discussing these proceedings or any of the allegations raised in evidence in these proceedings with or in the presence or hearing of the children;
(c) Questioning or initiating conversation with the children or any of them about the contents of their dealings with the school counsellor or any other counsellor or therapist;
(d) Encouraging or coercing the children or any of them to withhold information from or mislead the other parent or any counsellor, teacher or other professional involved in their care;
(e) Recording the children by any means for the purpose of gathering evidence for use in these or any other court proceedings;
(f) Using the children to convey messages to the other parent by any means;
(g) Enrolling the children in any extracurricular activities that take place in time when the children will be in the care of the other parent without the prior written consent of the other parent;
(h) Using any form of physical discipline upon the children.
10. That the mother is hereby restrained from allowing the children to:
(a) Reside under the same roof with their maternal grandfather Mr JJ Alam
(b) Come within 20m of their maternal grandfather other than under both the following conditions:
i. In a public place,
ii. At a gathering where the children remain in the presence of at least two adults other than the mother and the maternal grandfather at all times
11. That the parties are to do all things necessary to facilitate the children continuing to attend upon psychologist Ms NN for counselling, with such counselling to occur on the following basis:
(a) The purpose of the counselling is to provide a safe place for the children to express their feelings, and to support them to cope with the ongoing consequences of the separation of their parents, and the parties are each to afford the children privacy in this regard and to refrain from questioning the children or the counsellor about the content of the counselling;
(b) The parents are each to attend individual appointments with Ms NN if requested to do so by her, to receive feedback about the progress of the children and parenting education about how best to support the children’s needs;
(c) The parties are to continue to facilitate the attendance of each of the children upon Ms NN until such time as Ms NN indicates that it is no longer necessary or helpful for any or all of the children;
(d) The father is to be responsible for the costs of the family’s attendance upon Ms NN, including individual appointments attended by the mother but only in respect of those requested by the psychologist;
(e) The ICL will forward a copy of these orders to Ms NN within 7 days of the orders being made.
12. The parents are each to keep the other parent informed of their current residential address, mobile telephone number and email address at all times.
13. Communication between the parties in relation to the care of the children is to occur by email or text message except in the case of an emergency, and such communication is to be expressed in a polite and businesslike manner at all times.
14. That the parents are each to keep the other informed in a timely manner of any serious illness or injury suffered by any of the children while in their care, including any hospitalisation, and are to provide the other parent with the name and contact details of any health care professional who has provided treatment to any of the children and authorise such professional to discuss the child’s health and treatment with the other parent.
15. The parties are each restrained from removing or attempting to remove the children or any of them from the Commonwealth of Australia without the prior written and verified consent of the other party in writing, and it is requested that the Australian Federal Police give effect to this order by placing the names of the children B born …r 2010, C born …2012 and D born … 2013 on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Airport Watch List until further order of the court.
In final submissions, the mother consented to all the orders proposed by the ICL, except for aspects of proposed orders 7 and 10. Order 7 relates to the children's schooling. The mother agrees with proposed orders 7(a) and (d). The mother, however, proposes that the children attend the AF School for their secondary schooling. There was no agreement about this.
Order 10 proposes a restraint on the children having contact with the maternal grandfather. The mother accepts that some restraint is appropriate, but submits it should be limited in time. I will return to these matters later in these reasons.
In final submissions, the father put the position that if the Court accepted the thrust of the mother's case, he too embraced the orders proposed by the ICL, with the following exceptions. The father argues proposed order 4(a)(i) should be extended from Monday to Tuesday mornings, consistently with the evidence of the single expert. With regard to schooling, the father agrees with proposed order 7(a), (b) and (c), but argues that (d) cannot be made unless there is on foot a child support departure application, which there is not. This was accepted by counsel for the mother and the ICL, and ultimately it was agreed that a notation should be made to the same effect as proposed order 7(d). The father further contended that Order 15 should not be made because the father wanted to undertake international travel.
In light of her embrace of the ICL's proposed orders, I do not consider it necessary to set out in detail the initial proposals of the mother. Subject to the differences identified, the ICL's proposal became her proposal.
However, it is necessary to set out the father's proposal in detail, because he continued to press it as his primary position.
The father continued to press the following orders and notations in accordance with his Amended Proposed Minute of Final Orders (Exhibit "4"):
The Court Notes
1.The following definitions for the purposes of these Orders:
A.1. "Act" means the Family Law Act, 1975 (Cth).
A.2. "C" means C Sayid born …2012.
A.3. "children" means C, B and D.
A.4. "B" means B Sayid born … 2010.
A.5. "D" means D Sayid born … 2013.
2. All prior parenting orders be discharged.
3. The father shall have sole parental responsibility in relation to decisions of a major long-term nature.
4. Before making a decision, the father is to:
4.1. provide the mother with reasonable notice in writing of any proposed decision;
4.2. consult with the mother (by email or text communication unless he elects to communicate by telephone or in person) with regard to any such proposed decision and make a genuine effort to give consideration to her expressed view and, should the relationship between the parents permit, make a genuine effort to reach agreement with the mother about any such proposed decision; and
4.3. if no agreement is reached between the parents, the father shall make the final decision and within 7 days of so doing, provide the mother with written confirmation of the decision (by email or text is sufficient).
5. The children shall live with the father during the school term.
6. The children will spend time with the mother as agreed between the parties and if not agreed:
6.1. For two weekends out of every three from 3.30pm or the end of school on Friday until 9.00am or the commencement of school on Monday 6.00pm on Sunday;
6.2. For each third Monday (being the Monday after the weekend that the children are not with their mother) from 3.30pm or the end of school until 7.00pm on the condition that the time the mother spends with the children does not involve them in any travel for a significant period during those 3½ hours;
6.3. On special occasions each year as follows:
6.3.1. From 9.00am on the day of Eid-ul-Fitr until 3.00pm three days later in even numbered years;
6.3.2. From 9.00am on the ninth day of Thul-hijjah (the day of Arafat) until 5.00pm four days later in odd numbered years;
6.3.3. From 9.00am on Mother's Day until 9.00am or the commencement of school on the following day should the children not otherwise be with their mother on that day;
6.3.4. If the children are not otherwise with her, for a period of two hours on each of the children’s birthdays and the mother’s birthday if the children are not otherwise with their mother, failing agreement to be from 3.00pm until 5.00pm;
6.3.5. For five hours on Christmas Day if the children are not otherwise with the mother, to be from 12noon until 5.00pm unless otherwise agreed;
6.3.6. For one half of the school holidays as agreed between the parties and if not agreed, the first half in 2020 and each alternate year thereafter and the second half in 2021 and each alternate year thereafter;
6.3.7. On other occasions as agreed between the parties.
7. Notwithstanding other orders, the children will be with the father (and the mother’s time with the children will be suspended if necessary) on special occasions each year as follows:
7.1. From 9.00am on the day of Eid-ul-Fitr until 3.00pm three days later in odd numbered years;
7.2. From 9.00am on the ninth day of Thul-hijjah (the day of Arafat) until 5.00pm four days later in even numbered years;
7.3. From 9.00am on Father’s Day until 9.00am or the commencement of school on the following day should the children not otherwise be with their father on that day;
7.4. For a period of two hours on each of the children’s birthdays and the father’s birthday if the children are not otherwise with their father, failing agreement to be from 3.00pm until 5.00pm;
7.5. For five hours on Christmas Day if the children are not otherwise with the father, to be from 12noon until 5.00pm unless otherwise agreed;
7.6. On other occasions as agreed between the parties.
8. The parents are each permitted to telephone to speak to the children between 5.00pm and 6.00pm on any day that the children are in the other parent’s care and the parent with whom the children are spending time will facilitate the children receiving that call.
9. For the purpose of these orders and unless otherwise:
9.1. When the commencement of a care period falls on a school day, the mother will collect the children from school;
9.2. When the conclusion of a care period falls on a school day, the mother will deliver the children to school; and
9.3. In the event that the children or any of them are not at school on a school day, the mother will collect the child or children from the father's residence at the commencement of a care period and the return the child or the children to father's residence at the conclusion of a care period;
9.4. When the commencement of a care period falls on a non-school day, the mother will collect the child or children from the father's residence;
9.5. When the conclusion of a care period falls on a non-school day, the father will collect the child or the children from the mother's residence.
10. The mother be and is hereby restrained from permitting the children:
10.1. residing at any premises occupied by her father, Mr JJ (also known as Mr KK, Mr LL and Mr MM);
10.2. coming within 20 metres of her father, Mr JJ.
11. In respect of any time when either of RR or SS, the children of Mr PP, are staying overnight in the same premises as C, the mother shall do all things and take all steps as necessary to ensure neither RR nor SS occupy or sleep in the same bedroom as C.
12. The mother and the father be and are restrained from:
12.1. discussing with the children or any of them the content of their dealings with the school counsellor or any other counsellor, therapist or medical practitioner;
12.2. discussing with the children or any of them the content of their dealings with the Court appointed family reporter;
12.3. encouraging, informing or coercing the children or any of them to withhold any information from the other party, independent children's lawyer, school counsellor, counsellor, therapist, medical practitioner or Court appointed family reporter;
12.4. encouraging, informing or coercing the children or any of them to mislead the other party, independent children's lawyer, school counsellor, counsellor, therapist, medical practitioner or Court appointed family reporter.
13. The mother and the father be and are restrained from recording the children by any means for the purpose of gathering evidence for use in these or any other proceedings.
14. The parties are within 28 days to do all such things as are necessary to arrange for the children to attend counselling with a clinical psychologist selected by the father ("the psychologist").
15. To facilitate such counselling:
15.1. The independent children's lawyer is authorised to send a copy of these orders and a copy of Dr FF’s report to the psychologist within 7 days of the identity of the psychologist being confirmed, and the psychologist is authorised to speak with Dr FF about his recommendations but the psychologist is not to report on the counselling to Dr FF;
15.2. The purpose of the counselling is to provide a safe place for the children to express their feelings, and to support them to cope with the consequences of the separation of their parents, and the parties are each to afford the children privacy in this regard and to refrain from questioning the children or the counsellor about the content of the counselling;
15.3. The parents are each to attend individual appointments with the children's psychologist if requested to do so by the psychologist, to receive feedback about the progress of the children and parenting education about how to best support the children's needs;
15.4. The parties are to continue to facilitate the attendance of each of the children upon the psychologist until such time as the psychologist indicates that it is no longer necessary or helpful for any or all of the children;
15.5. The father is to be responsible for the costs of the psychologist, including any individual appointments attended by the mother but only in respect of those requested by the psychologist;
15.6. No subpoena is to be issued to the psychologist for records in relation to the children's counselling without leave of the Court.
16. The mother and the father shall not denigrate the other party, their partner or any member of the other party’s family to or in the hearing of any the children.
17. The mother and the father shall not make arrangements directly with the children for the children or any of them to attend any activity/event when they are to be with the other party and that both parties be restrained from discussing such arrangements with the children until the other party has provided their prior consent in writing.
18. The parties be restrained from belittling or ridiculing the children in any way.
19. The mother is restrained from using any form of physical or corporal discipline on the children or threatening to use physical or corporal punishment.
20. The children shall be at liberty to initiate communication with each of the parties by telephone, text message, email and Skype at all reasonable times and on days when the children are in the other party’s care and for this purpose each of the parties shall permit and not restrict or interfere with the children initiating telephone calls or text message exchanges to and from the other party.
21. Each of the parties will ensure that they facilitate the children attending medical appointments or extra-curricular activities whilst in their respective care.
22. Each of the parties are permitted to attend any extra-curricular activities or official school functions and events at which parents normally attend or participate in.
23. The mother and the father shall be entitled to obtain directly from any health or welfare professional or other professional (excluding any confidential counselling) attended by the children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose, the mother and the father immediately notify the other of the names and contact details of any relevant education and health professional and keep the other party so informed.
24. Each of the parties shall notify the other parent as soon as practicable in the event of any serious illness or injury that requires medical intervention by a doctor or hospital concerning the children whilst in their care.
25. Each of the parties must keep the other informed of their current residential address, telephone number and email and provide the other with 4 weeks written notice of any intention to change their residential address.
26. The father shall forthwith to do all such things as are necessary to enrol B and D at L School and C at M School to commence at those schools as soon as possible and, pending acceptance at those schools, the father shall forthwith to do all such things as are necessary to enrol the children at Suburb OO Public School.
27. The mother is to ensure that the children attend school on all school days unless the child is sick.
28. Communication between the parties in relation to the care of the children is to occur by email or text message except in the case of an emergency and such communication is to be expressed in a polite and businesslike manner at all times.
29. The mother be and is hereby restrained from removing or attempting to remove or causing or permitting the removal of the children, B born … 2010, C born … 2012 and D born … 2013 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the names of the children, B born … 2010, C born … 2012 and D born … 2013 on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Airport Watch List until the Court orders its removal.
30. The parents do all things necessary to authorise the Sydney Registry of the Family Court of Australia to return to the father the children’s passports.
31. That the father be at liberty to travel overseas with a child or children provided that:
31.1. The proposed period of travel falls within a period in which the children would be living with or spending time with the father during the school holidays pursuant to these orders;
31.2. The father travels with the child or children for the entire period during which the child or children are travelling;
31.3. The father has taken out travel insurance for the child or children at an appropriate level in order to meet medical and emergency costs and expenses;
31.4. The father provides to the mother not less than four weeks prior to the intended departure date:
31.4.1. A detailed itinerary of the proposed trip, including the date of departure and return flight details and times, of all locations and destinations of travel and details of accommodation for the entire period of travel (including, if applicable, the name, address, telephone number and email address of the accommodation);
31.4.2. A certified copy of the booked tickets in the father's and the child's or children's names for the departure and return flights;
31.4.3. Details of an email address and telephone number at which the children and the father can be contacted during the trip;
31.4.4. Details of the travel insurance policy.
32. If father is travelling overseas with a child or children, the father must arrange for the child or children to telephone the mother within four hours of arrival at the intended destination (not any flight stopovers), on every third day of the holiday whilst overseas and within four hours of arrival back in Australia.
33. In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders then the Registrar of this Court shall be appointed pursuant to section 106A of the Act to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
ISSUES IN DISPUTE
The primary issues are:
(a)Whether sole parental responsibility should be allocated to the father;
(b)Whether the children should live with the father or the mother;
(c)Whether the children are at risk of family violence or sexual abuse in the home of the mother; and
(d)Where the children should attend for their secondary schooling.
In the way the father put his case, there was also a significant credit issue about the mother. He contended that a number of inferences about the risks in the mother's home should be drawn against her.
EVIDENCE
The Children
There are three children the subject of these proceedings, being B, C,and E. They currently all attend E School at Suburb K, with B in Year 5, C in Year 4 and D in Year 2.
The Evidence of the Parties
Each parent challenged the credibility of the other. The mother sought to impugn the credit of the father by relying on evidence of occasions in 2006, when he had driven unlicensed and had been quite prepared to lie to the police by giving a false name. She also pointed to the fact that the father, in his financial statement filed in September 2019, had alleged he earned $30 a week when his earnings were approximately $670,000 that year. He was also cross- examined about his dispute with the Australian Taxation Office ("the ATO"). It was suggested to him that he manipulated figures in challenging the claim, which he denied.
The father submitted that his untruthful acts were historical and unconnected to the parenting issues before the Court. I agree.
In pressing his challenge to the mother's credibility, the father pointed to the events on 26 February 2016, when the mother attempted to leave Australia with the children and forged his signature on a passport application for B. He also questioned her about completing a fraudulent application to finance the purchase of a new car. I granted the mother a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) in respect of this evidence. The father submitted that the mother was quite prepared to lie to achieve her own ends. The father submitted, which I accept, that unlike the criticism made of him, the mother's deceitful conduct was directly related to parenting and the children.
Neither party impressed me as a reliable witness. Although both conceded to past deceitful behaviour, I do not consider it necessary or helpful to make a general finding of mendacity about either: Carlson & Fluvium [2012] FamCA 32 at [165] to [169]; Adamson & Adamson (2015) 51 FamLR 626 at [90]. The expert evidence of Dr FF includes the opinion that both parents exhibit controlling behaviour and a strong drive to determine parenting outcomes. Having observed both in the witness box, I am satisfied their longstanding conflict and mutual distrust may well have infected the reliability of their recollections and motivated distortions in their testimony.
Application to Reopen
On 8 December 2020, the father applied to reopen the evidence to include evidence of the fact that the mother, after the final hearing had completed and judgment had been reserved, became pregnant with a further child to Mr PP. The mother and the ICL opposed the application. The parties made extensive written submissions in relation to this application. Intending no disrespect, it is not necessary to discuss these submissions in detail. I will allow the father's application. The additional evidence is very narrow in scope. The fact the mother's fresh pregnancy can hardly be the subject of controversy. It could affect the result, and it is clearly a fact relevant to the final parenting orders, because it will have an impact in the mother’s home, although the extent of the impact cannot now be kown. Having taken the time to assess the possible impact of the reopening on the overall result, I do not accept that it requires, as the mother and the ICL submitted, additional hearing time or any further expert evidence.
I therefore take account of the fact that the mother will, at the time of delivery of judgment, likely have given birth to another child to Mr PP.
Expert Evidence
The father made significant criticism of Dr FF’s evidence as an expert. He gave detailed responses in his own evidence to what he contended were flaws or inaccuracies in Dr FF’s report. However, no challenge was made to the admissibility of Dr FF’s report. Rather, senior counsel for the father submitted orally that Dr FF's ultimate conclusions and recommendations should be given little weight.
To couch challenges to the content of an expert's family report in parenting proceedings in terms of weight rather than admissibility accords with authority. In McGregor & McGregor (2012) FLC 93-507; (2012) 47 Fam LR 498; [2012] FamCAFC 69 (“McGregor”), the Full Court pointed out that Part 3.3 of the Evidence Act 1995 (Cth), into which the sections dealing with opinion evidence fall, does not apply in parenting proceedings by reason of the provisions of Division 12A and in particular s 69ZT(1) of the Family Law Act 1975 (Cth) ("the Act"), unless an order has been made pursuant to s 69ZT(3). Thus the usual constraints on the admissibility of opinion evidence do not apply in parenting matters, although opinions must still be relevant: s 55 of the Evidence Act. At [85] - [90] the Full Court said:
85. But the application of s 69ZT(1)(c) is confusing. The opinion rule is to the effect that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. Section 79 ameliorates the opinion rule in s 76 in respect of opinions of experts who qualify in that capacity.
86. Section 69ZT excludes the opinion rule and thus permits admission of evidence of an opinion to prove the existence of a fact. Paradoxically, s 79 is excluded and has no application at all. The effect would seem to be that an opinion can be admitted to prove the existence of a fact, and there is no requirement that the opinion-giver have any specialised knowledge or expertise.
87. The common law rule (excluding opinion evidence) does not revive as a consequence of s 69ZT(5).
88. If, then, evidence of an opinion is sought to be tendered, a judge must carefully address the admission of such opinion evidence and the weight to be afforded it.
…
90. As we have said, s 69ZT allows the admission of any opinion without the application of the opinion rule or the exception to it provided in ss 76 and 79 of the Evidence Act, unless the trial judge has determined to apply subsection (3) of s 69ZT and, as a consequence, applies the otherwise-excluded rules of evidence.
However, there is later authority that basic principles governing the admissibility of expert evidence are still relevant on the question of weight. In Gaffney & Gaffney [2012] FamCAFC 140 ("Gaffney") at [51] the Full Court cited McGregor at [81]-[82] where the Full Court had said:
81. Furthermore, an expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based and the opinion in question so that it is possible for the court to determine whether the opinion is “wholly or substantially based on specialised knowledge based on training, study or experience” per Gleeson CJ in HG v R [1999] HCA 2; (1999) 197 CLR 414, 427.
82. In addition, not only should the facts on which the opinion is based be identified, the reasoning process leading to the formation of the opinion must be exposed so as to demonstrate that the opinion is based on particular specialised knowledge (see Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (“Makita”) at [85] per Heydon JA. The Full Court of the Federal Court has held that many of the matters referred to by Heydon JA in Makita “involve questions of degree, requiring the exercise of judgment” and in trials by judge alone they should commonly be regarded as going to matters of weight rather than admissibility (see Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [16] and [87]; see also Carpenter & Lunn (2008) FLC 93-377; Noetel & Quealey [2005] FamCA 677; (2005) FLC 93-230).
It seems to me that at [81] in McGregor, the Full Court set out principles and criteria for expert reports to which s 79 of the Evidence Act applied. The Full Court went on to state in an unqualified way that s 79 has no application in parenting cases, which seems clearly correct in light of s 69ZT(1), with no revival of any common law rules regarding opinion evidence by reason of s 69ZT(5). Section 69ZT(2) gives a specific discretion to the Court to give such weight (if any) as it thinks fit to evidence admitted as a consequence of s 69ZT(1).
In Gaffney, the Full Court continued at [52] - [53]:
52. In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, Heydon JA (as he then was) referred to HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 at [39] to [44] where Gleeson CJ said:
44. This was not a trial by jury, but in trials before judges alone, as well as in trials by jury, it is important that the opinions of expert witnesses be confined, in accordance with s 79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture “opinions” (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted...
53. Although Division 12A provides that aspects of the Evidence Act do not apply to matters involving children, that does not in our opinion alter what we regard to be a fundamental principle about expert opinion which is that the expression of opinion must meet the criteria to which we have just referred.
In Jillet & Murdoch [2018] FamCA 313, Hannam J said at [116]:
While opinion evidence may be admitted under s 69ZT without application of the opinion rule or exception, a consideration of the criteria that a person has “specialised knowledge” and that their opinion is “wholly or substantially” based on that knowledge under s 79 of the Evidence Act and the principles of Makita (Australia) Pty Ltd v Sprowles (supra), are still relevant to the weight to be attached to such evidence.
Thus, the authorities in this Court seem to establish that while an expert report may be admissible in parenting proceedings by reason of s 69ZT(1), the weight of any opinions may be undermined, perhaps materially, by the same factors which would potentially render it inadmissible if the opinion rule applied in the ordinary way in other Courts and civil litigation. In other words, in parenting cases an expert opinion is to be accorded less weight by a failure of an expert to make clear the assumed facts upon which their opinion is based and the opinion expressed, because this leaves the court unable to determine whether the opinion is "wholly or substantially based on specialised knowledge derived from training, study or experience". As the decision in McGregor makes clear, such reasons to challenge the weight of opinion evidence in parenting cases cannot be based directly on the application of s 79, or any other excluded provision of the Evidence Act. Rather, the decision in Gaffney seems to show such challenges are based on reasoning by analogy.
As McClelland J (as he then was) pointed out in Newport & Newport [2016] FamCA 1066 at [46], many of the principles relating to expert evidence referred to in McGregor and Gaffney are substantially reflected in r 15.63 of the Family Law Rules 2004 (Cth), which requires, inter alia, an expert to state the reasons for the expert witness's conclusions, include a statement about the methodology used in the production of the report, the relevant facts, matters and assumptions on which the opinions in the report are based and a statement about the facts in the report that are within the expert witness's knowledge.
However, several other points should be emphasised. First, as pointed out in McGregor, as a result of s 79 being excluded in parenting proceedings, an opinion can be admitted to prove the existence of a fact, and there is no requirement that the opinion-giver have any specialised knowledge or expertise in this regard. Secondly, s 69ZN(2) requires the Court, in interpreting the provisions of Division 12A, to give effect to the principles set out in s 69ZN(3), (4), (5), (6) and (7), such as, to consider the needs of the children concerned and the impact that the conduct of the proceedings may have on the children, and conduct the proceedings in a way that will promote cooperative and child-focused parenting by the parties. It seems to me consideration of these principles applies to the interpretation of s 69ZT(2) on the question of giving weight to opinions admitted into evidence by reason of s 69ZT(1).
The father argued that at ten points of his report Dr FF refers to facts that he "suspects" certain things (see paragraphs 7, 10, 17, 18, 28, 46, 102, 127, 131, 133 of his report). I note Dr FF uses the verb "suspect" at other places in his report (paragraphs 38, 73, 108, 118) but the father took no specific point about those paragraphs. The father argued that when he says he "suspects" certain things, Dr FF introduces his own view of the facts and did so without raising them fairly with the affected party. He argued that there is no place for an expert to construct the facts upon which he ultimately expresses his views. The father argued that part of the defect in the approach that Dr FF disclosed in his oral evidence was that he saw his role as constructing hypotheses from the various facts that were before him.
Senior counsel made clear that the father was not inviting the Court to reject Dr FF’s evidence as inadmissible at the end of the trial, but that in assessing its weight, the Court should minimise its weight because it was flawed in ways which would have rendered it inadmissible if the rules of evidence had applied. The father argued that the Court should look to other evidence in the proceedings in exercising its discretion to make parenting orders in this matter.
Senior counsel referred to statements of principle by Gleeson CJ in HG v R (1999) 197 CLR 414; (1999) 160 ALR 554; [1999] HCA 2 ("HG v R") concerning s 79 and the admissibility of opinion evidence. The High Court in HG v R considered the admissibility of an expert opinion by a psychologist. The psychologist had assessed a complainant of sexual abuse and expressed the opinion that although the complainant had been abused, the abuse had occurred back in 1987, not in 1992 or 1993, when, for a period of a month, she was in the custody of her father. He gave the opinion that it was the father who was the abuser, rather than another person who was the defendant in criminal proceedings. As Gleeson CJ explained at [40], an expert's opinion had to be related to their expertise to be admissible under s 79; the psychologist's opinion about the identity of the perpetrator was not admissible because it was not based:
[41]…wholly or substantially, on [the psychologist’s] specialised knowledge as a psychologist. On the contrary, a reading of his report, and his evidence at the committal, reveals that it was based on a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise of a psychologist. He did not put to the complainant, for her comment, the suggestion that she had been abused by her father; the complainant told him she could not remember her father. He does not appear to have considered or investigated the possibility of abuse by some third party. He appears to have inferred, for no apparent reason, that the words "stop it daddy", attributed to the complainant by her mother, referred to sexual as distinct from some other form of abuse.
Senior counsel also referred to the decision of Pownall v Conlan Management Pty Limited (1995) 12 WAR 370; [1995] WASC 117 ("Pownall"). At 234, Ipp J held expert opinion based entirely on inadmissible evidence is itself inadmissible and there is no discretion to admit it because the opinion is valueless and irrelevant. The decision in Pownall was directed to admissibility, but according to the argument of the father the same considerations should lead the Court to conclude Dr FF report has negligible weight, at least in part.
I do not accept these arguments. In Kernot v Matson (2008) 39 Fam LR 695; [2008] FamCA 756 ("Kernot"), Watts J considered the principle stated in Pownall but held at [47] that if the opinions of the family report writer were not based on entirely inadmissible evidence then there was no need to reject the entire body of the report. Specific parts can be rejected, as having no weight. Accordingly, putting to one side admissibility, the weight to be attributed to different parts of a family report may vary from the highly persuasive to the inconsequential.
In Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36, the High Court accepted that an "opinion" is, in substance, an inference drawn or to be drawn from observed and communicable data. McGregor confirmed that by excluding the opinion rule, s 69ZT permits admission of evidence of an opinion to prove the existence of a fact. I am satisfied that, generally speaking, where Dr FF expressed himself by using the verb "suspect" he was drawing an inference and expressing an opinion based upon his observations informed by his experience. This does not necessarily undermine the weight of the opinions expressed as inferences drawn from observed and communicated data. However, the general must yield to particular. I will discuss the specific paragraphs referred to by the father as necessary in the course of these reasons and the weight to be attributed to them. Nonetheless, reference to several examples illustrate my broad conclusion here.
At paragraph 10, Dr FF referred to the pattern of each parent requiring the children to tell the truth: "these children are clearly in between two parents who are both telling the children to be honest but I suspect implying quite different kinds of events they need to be honest about". The basis for this inference is made clear in Dr FF recording his observations of what each parent said to the children about being honest. At paragraph 28, Dr FF discussed information given by the father that the children slept with the father at times and opined: "[g]iven that C's comments to me were that she would prefer to sleep in her own room I suspect the children sleeping in Mr Sayid's bed meet[s] his needs more that he is aware of what their needs are." I readily accept that Dr FF here was drawing an inference based upon his general observations of the parents and the children, on what the father told him, and on his experience and expertise in evaluating parents, children and family dynamics.
Furthermore, the father himself relied on the evidence of Dr FF at numerous places in his submissions, as the following discussion will show.
I do not consider it necessary or appropriate to give little weight generally to the content of the report of Dr FF. It should be understood that where I take account of Dr FF evidence in the course of these reasons, it will be because I give that evidence weight. Where I hold specific reservations about Dr FF evidence which require comment, this will be made clear.
The Children’s continued attendance upon psychologist
As detailed above, orders were made by consent on 11 November 2019 for the children to attend counselling with Ms NN or another clinical psychologist. The orders proposed by the ICL, which the mother embraces, would see this continuing.
THE LAW
In parenting proceedings, the best interests of a child are the paramount consideration: s 60CA of the Act.
Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s 61DA and s 65DAB of the Act.[39]
[39] There is no relevant parenting plan so s.65DAB of the Act does not apply.
The suspicion expressed by Dr FF in this paragraph is again an inference in the form of an opinion reached on the basis of his direct observations of the father informed by his expertise and experience. I give it weight.
Dr FF also approached the question of the impact of change on the children by asking who would be the most "positive custodial parent" for the children. While this is a relevant question, I do not lose sight of the fact that the statutory consideration requires focus on the likely effect on the children of changes in circumstances. At paragraph 127, he says:
A very difficult situation arises as to what is the most positive custodial parent for the children. A difficulty for the father is that the father has not to date demonstrated a great deal of warmth or empathy for Ms Alam and whilst he is emotionally invested in his children, up until recent times he was not particularly present in their lives. Whilst at the moment he appears to be doing everything he possibly can to address that I suspect that once his business issues with the ATO are resolved, he will again focus on his financial career and he will rely heavily on his family to support him in caring for the children.
The suspicion expressed in the final sentence was one of the specific parts of Dr FF’s report which the father argued should be given little weight. I treat this sentence as expressing an inference in the form of an opinion. While such an inference is open on the basis the material considered by Dr FF, and the observations of Dr FF of the father throughout his report, it is not the only inference. The evidence generally shows, and indeed there was no real dispute, that the father is very positively engaged with his children. I am satisfied that if they lived with him primarily it is an equally available inference that he would continue a positive involvement with the children. However, as discussed below at [260], [268] and [271] the father is also self-absorbed, at times mean spirited and lacks a well-developed sensitivity to the emotional needs of the children, which may set limits on his positive engagement.
Dr FF noted how important it was for the mother's identity to be a mother to the children. At paragraphs 128 and 129, Dr FF opined:
Ms Alam sense of identity is bound up with being a mother to her children. She is certainly present in their lives. I think that she is not particularly reliable in some of the things she has said and how she disciplines the children and I think she also lacks some sensitivity to the children's needs, largely because her own experience of being parented created difficulties in her parenting. These difficulties include a rigid adherence to routines and structure and a limited ability to manage stress. She does get some support from Mr PP but Mr PP has clearly indicated that he will not interfere in his wife's parenting i.e. his support is primarily emotional support.
To that extent I see that whilst the children are probably best situated by remaining in the care of their mother it is also the case that they will need to have substantial time with their father, despite all the difficulties. How that situation can actually translate into a way in which the parents absent the children from their ongoing conflict and anger towards each other I do not know.
It can be seen that Dr FF on balance favoured the mother remaining as primary carer, although he recognised there should be extensive involvement of the father.
Dr FF’s view is tentatively expressed. He, quite understandably, was unable to perceive how the substantial involvement of both parents in the lives of the children could also allow for the children to be protected from the ongoing parental conflict. His reasons for favouring the mother as primary carer in paragraph 129 appear to be his inference that the father would turn away from parenting once the litigation was concluded and his pressing financial problems came to the fore, and the fact that the mother received emotional support from Mr PP. However, as already pointed out, in my view there is insufficient basis to infer the father would turn away from his parenting responsibilities rather than seek to enhance his relationship with the children, if they were placed in his primary care. On the other hand, as discussed below under s 60CC(3)(f) Dr FF was of the view that the mother has a better capacity than the father to meet the children's emotional needs.
Mr PP's support of the mother, while a positive factor, may be attenuated by her need to parent two other children born to Mr PP. The circumstances of the children have changed since the final hearing because the mother has become pregnant and given birth to another child with Mr PP. The likely effect on the children is unclear. There may be an impact on the mother's capacity to parent because of the added burden of a new born in her domestic circumstances. I discuss this further below under s 60CC(3)(f).
The issue of the children's secondary schooling is relevant to the question of the effect of change of circumstances, as well as practicalities, which I come to under s 60CC(3)(e). At present, the children attend E School. As noted earlier, the mother diverged from the ICL in her final proposal in that she supported the children attending the secondary school called AF School in Suburb AP. If the ICL's schooling proposal was accepted, this would support the children remaining in the mother's primary care. They would remain at E School until Year 7, then the boys would attend GG School at Suburb AK, while C would attend HH School in Suburb AL. This would require travel between Suburb K and those suburbs.
If the father's schooling proposal was accepted, but the children remained in the mother's primary care, this would bring about an important change to the children's circumstances because they would be required to travel regularly from Suburb K to Suburb H and Suburb OO in Sydney's eastern suburbs to attend school. This would add significant travel time for the children every month. However, if the children lived with the father primarily, and his schooling proposal was accepted, those issues of travel time would not arise. On the other hand, if the children lived primarily with the father and the Court embraced the ICL's school proposal there would be travel time between Suburb H, Suburb E, Suburb AK and Suburb AL.
The parties, after the close of the trial, provided to the Court an agreed schedule setting out the differing travel times between the various homes and proposed schools.
By car, the travel time to AF School from the mother's home at Suburb K would take between 14 and 35 minutes, depending on the route, and from the father's home at Suburb H to between 28 minutes and 1 hour and 5 minutes, depending on the route. By train from the mother's home the travel would be by a bus and a train, with a change at Station A, or two trains at Station B and Station C. As I understood the evidence, via Station A, the trip would take about 45 minutes including a 6 minute walk to the school from Station D, and via Station B the trip would take about 30 minutes, allowing for close connections between trains and a 6 minute walk to the school. By bus, with a change of buses at Suburb AJ the trip would apparently take about 50 minutes, since the children would be dropped at Station D and have to walk to the school.
By car, the travel time to HH School from the mother's home would take between 12 and 26 minutes, depending on the route, and from the father's home between 24 and 55 minutes, depending on the route. By bus, the travel times would be approximately 30 to 35 minutes from the mother's home. By train the travel time would be approximately 45 minutes depending which train route is adopted.
By car, the travel time to GG School from the mother's home would take between 20 and 50 minutes, depending on the route, and from the father's home between 22 and 50 minutes, depending on the route. By bus the travel times would be approximately 40 minutes from the mother's home.
The evidence did not make clear the time it would take by public transport from the father's home to AF School, HH School or GG School, although I infer it would take considerably longer than from the mother's home. The father's proposal of course is for the children to attend L School and M School, which are located very close to the father's home in Suburb H.
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
I am satisfied the children should transition between homes together. There was no evidence to suggest it would be in their interests to be separated. Both parties made proposals which assumed the children would remain together. I note the father's proposal would result in the children spending less time with their step and half siblings in the mother's home, including her newborn.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
Practical difficulties of the children spending time with each parent are closely linked to the question schooling.
Travel times between the proposed schools and each parent's home are set out above at [238] - [245]. It can be seen that whichever proposal for the children's primary residence is accepted by the Court, there will be extensive travel time to and from school.
The evidence does not permit any view to be formed about the relative merits of the different schools proposed, for example single sex as opposed to co-educational.
The domestic circumstances of the parties is important. The father's domestic circumstances are much less complicated than those of the mother. In the mother's household there are not only the children, but also step children and two very young children. The difficulties for the mother if she proposes to drop and pick up the children by car at two or three different schools while she has young children to Mr PP, including a newborn, are obvious. There seems little doubt that the children will need to use public transport at times to attend school.
The practical difficulties involved in the children attending school are real, whichever school they attend, if they continue to reside primarily with the mother. The presence of a newborn in the mother's home will in the short term potentially add to these difficulties. If they all attended one school, for example, AF School, these difficulties would be ameliorated, but they would not disappear. I also accept that there would be less practical difficulty for the children attending school if the father's proposal was ordered by the Court.
I accept that HH School and GG School are not the first preference of either parent for secondary schooling. But they are good schools which each parent can live with. They thus represent an area of grudging common ground. I am satisfied on the evidence that there would be more balance in travel times for the children if they attend HH School and GG School as secondary schools, whichever parent they lived with, and if the ICL's schooling proposal was accepted.
The same evidence shows that there would likely be significant practical difficulties for the children in travelling to spend time with the mother according to the father's proposal every third Monday evening for three and half hours. Even on the father's primary proposal for schooling, at L School and M School, this practical difficulty would exist and may even be exacerbated.
(f) the capacity of:
(i) each of the child's parents, to provide for the needs of the child, including emotional and intellectual needs
The parenting capacity of both parents was in issue.
At paragraphs 119, 120 and 121 Dr FF expressed the following views:
119. A difficulty for all three children is that both parents are quite determined to have their way in how the children perceive their relationship with one party or the other. Each say they tell the children to be honest but it is my view that they tell the children to be honest by supplying them with content about what they want the children to be honest about. To my mind the children, particularly B, have suffered quite significantly as a result of the parental conflict.
120. Concerns have been raised about the father’s manipulative, demeaning and controlling behaviour towards Ms Alam and I don’t think there is any doubt that he is controlling and is likely a coercive individual, at least psychologically and emotionally towards his wife. To that extent he is likely also to be quite coercive and quite demanding of the children over time. He has a very strong view about what he wants them to do and would likely be limiting of their independence as they age.
121. Regrettably I see exactly the same pattern occurring in Ms Alam. I view her also as being perfectionistic, controlling, with very strong views about how children should be respectful, although I believe that is a code for how they need to subjugate themselves to their parent’s wishes. I believe that is how she was brought up and she has an authoritarian and patriarchal model to fall back on in regards to her parenting. As a consequence I see the children being torn between two parents both of whom are emotionally and psychologically quite powerful but without much consideration for how their battle is impacting upon the children’s well being.
The case put by the father requires close focus upon the parenting of the mother. Some of the issues he raised have already been discussed in these reasons, such as chastisement, risk and her sometimes fragile psychology in the past. The disclosures by both B and C to Dr FF that the mother had used a wooden spoon to discipline them have already been discussed. He recorded the following concerning the mother:
70…She denied getting angry with the children but she said she will comment on what they do. She reported herself as firm. She indicated that she could get pushed by the children, and particularly made reference to B in this regard on multiple occasions. She said she can get upset by her children and she has to give herself time out as seemingly she has some problems in managing her emotions at times.
71…She is very focused on homework and very focused on hygiene. To some extent she has quite high standards even perhaps unrealistic expectations of the children that can cause some difficulties for her.
72. When asked what were the positives of her parenting Ms Alam said being organised and giving the children respect and focusing on their hygiene and helping them to appreciate what they have. She also thought it was important to help them with their feelings and to teach them to love themselves. Nonetheless she then referred to always having ups and downs in her parenting. Despite being directed to talk about the positives in her parenting she could not get past how difficult parenting could be. She reiterated she took take time out for herself and give[s] herself space if she is having problems with the children. For her an important issue was improving communication with and between the children.
73. When asked what she might change about her parenting she thought probably ‘the screaming” although she then qualified that to say such screaming was extremely rare. However it appears if the children talk over each other or become fractious she can respond quite volubly and I suspect her frustration tolerance is low.
…
77. Ms Alam said that for discipline she uses time out, she will talk a lot and she will tell stories. She says sometimes she will give the children a “little tap on the bottom” but she denies the issue of the wooden spoon. I introduced into the conversation issues about how she was disciplined and then included in that whether her parents had ever put chilli in her mouth. She agreed that her parents had disciplined her in a variety of ways, including putting chilli in her mouth. She agreed that she did the same to her children, although she said rarely and she didn’t use very hot chilli. Nonetheless that does appear to support the view that at times her approach to parenting is strict and potentially punitive.
At paragraph 99, Dr FF commented:
When asked if she thought she was somewhat obsessive or compulsive Ms Alam denied that although my observation of her is that she is a perfectionist. She requires tight routines and I think gets easily stressed when her routines are disrupted. She likes things in their place and seems to have little flexibility in her behaviour or the way she thinks about various things.
I have set out Dr FF observations of the children with their father above at [223]. Dr FF further recorded at paragraph 104, after observing the children playing Uno with the father, a game which D won:
Everybody greeted D’s win with enthusiasm and at this point, all of the children were still clustered around their father. It appeared to be a loud, happy and natural interaction with the children remaining quite focused on the father, who has I think had an excellent capacity to generate and to bind emotion with children. When it was time to say goodbye, C did look somewhat sad although I thought she was doing that in a kind of mock dramatic way. C also came and said goodbye to myself and Ms. AH. D, on the other hand, looked genuinely distressed in saying goodbye to his father and clearly was unhappy that the contact was coming to an end.
At paragraph 130 of his report, Dr FF opined:
I think Ms Alam identifies some of the emotional needs of her children but she is so caught up in her own restrictive and controlling parenting experience from her family of origin that she finds it difficult to relax and to simply enjoy the children and allow the children to enjoy time with her. Nonetheless the children appear to have a close and warm relationship with her. I believe that both parents are so focused on the children’s intellectual needs that they may create difficulties for the children over time in the demands they place on them. However for many parents there is an intense focus on academic success as a means to have a prosperous life, and such focus is not unusual in contemporary Australian society. I think that Mr Sayid is currently somewhat unaware of the children’s emotional needs. He has an idealised view of what a child should be and I think he is trying to fit the children into his idealised view, rather than having a strong sense of what the children actually desire or want to be.
At paragraphs 133 and 134 of his report, Dr FF commented on both parents as follows:
133...Ms Alam presents as quite a dependent person who readily experiences anxiety when she is placed under stress. However for the moment that is not impacting on her parenting, although it likely did when she was with Mr Sayid. I think that she does need quite rigid and organised routines to function as a parent and when the children challenge that she does find such challenge difficult. I suspect that she responds with anger and some coercive attitudes towards the children despite her denying that to me. To that extent I believe that it would assist Ms Alam to seek counselling and Ms NN may be able to assist the family, as I believe she has associates who work with her. In the alternate she may be able to advise of a suitable psychologist in the local area. It would be inappropriate for the psychologist who worked with the children to also work with Ms Alam.
134. Mr Sayid does not present with any particular psychological problems other than he is quite an egocentric and self-absorbed man who has difficulties in understanding anybody’s point of view except his own. To that extent I think it makes him somewhat insensitive to the needs of his children and he finds it more difficult I believe than would normally be the case for him to become attuned to what his children want and how his children feel.
The evidence of Dr FF shows that the father has a negative view of the mother’s parenting. At paragraph 11 of his report, Dr FF records:
Mr Sayid says that his primary concern is that Miss Alam is not a good parent. He raised concerns about her mental health, noting that Ms Alam raised such concerns during their relationship. He said that Ms Alam’s family was a noxious influence on her and even despite her family being away, she has quite strong allegiance to her father and he sees this man as influencing her in a negative way. (Ms Alam admits she talks to her mother and father daily). He is also concerned that her current situation. She has six children in her care, and he feels that this is simply too much and his children will be neglected by need for Miss Alam to focus on all six children. Currently living with Ms Alam are the three index children plus her daughter, QQ, who was born earlier this year as a result of her relationship with Mr PP. Mr PP has two children, SS, aged 8 and RR, aged 12. They stay over from Sunday night to Tuesday morning although Mr Sayid believes that it is from Sunday through to Wednesday. In any case, he believes that they are a considerable drain on Miss Alam’s parenting, which he says is limited in the first place.
The father made a number of submissions concerning the mother’s trivialisation of his relationship with the children, her mental health, and her attitude to parental responsibilities, which he contends all put in question her capacity to parent in her present domestic circumstances.
He argued that the mother’s attempt to leave Australia with the children in February 2016 demonstrated how little importance she placed upon their relationship with their father. There is force in that submission, but it also shows the lengths the mother would go to at around the time the marriage was disintegrating to escape what she saw as the father’s control and keep control herself.
As already noted, Dr FF made a number of observations about the hard but brittle psychology of the mother. However, he also expressed the view that when he saw her, the mother did not present as a person who has current mental health issues. There was clear evidence that the mother has struggled with her mental health in the past. Dr FF recorded that she had severe psychological problems during the marriage, and in his oral evidence Dr FF retain some concern about the possibility of emotional dysregulation in the mother. The father argued the mother minimised her problems with mental health and her general unreliability as a witness should cause the Court to doubt her oral evidence about her ability to cope.
This raises for consideration the nature of the mother’s present domestic circumstances, in which the children will primarily live if the ICL’s proposal is accepted.
In summary, the mother lives with Mr PP, who she agrees works long hours, in a blended family situation, with the children, two step children, and two young children with Mr PP, one of whom now is a young baby. The baby has arrived since the trial. At the time of trial, the father argued that the Court could not be satisfied the mother told the truth about being able to cope with her domestic circumstances, that is six children, and a husband who works long hours. I am satisfied the mother found these circumstances taxing at the time of trial. I accept she endeavours to manage these circumstances by strong organisation. However, she was clear Mr PP does provide her with some emotional support, although Dr FF records that the mother said Mr PP will not intervene in her parenting. There was some evidence of tensions in the households, with friction between the mother and Mr PP at times. There is an inference to be drawn that the arrival of an additional child could only increase the parenting burden on the mother, and the tensions within her household.
I return here to the allegation of inappropriate touching by C’s step sister SS. The father argued the mother’s response to this possibility was concerning and implausible. The mother’s evidence orally showed she would not accept that any inappropriate touching took place. She resolutely maintained that she would know if anything of that nature happened. The father’s point was that the proclivity simply to avert her gaze and reject the possibility of any problem showed serious deficit in the mother’s attitude to protecting C. On balance, I do not accept this is correct. I find that the mother has generally a sufficiently developed protective attitude towards the children. I infer that the mother’s responses which the father views as insufficiently protective were engendered at least in part by a desire to deflect his condemnatory scrutiny.
As regards to the father, I note he has completed courses organised by AG Services, “Keeping Kids in Mind”, “Circle of Security” and “Emotion Coaching”, and he attends a Post Separation Case Management service with AG Services once a month.
Dr FF opined that the father “appears to be a psychologically well-adjusted person who is quite tough minded in his attitude” (paragraph 45) and at paragraph 46:
He feels that he has a means of regulating his anger although he can be waspish and critical and that was certainly evident in the interview, although I thought his temper was under control. I suspected he can be somewhat mean spirited and hostile, more so than he has insight into. He said he can be obsessive, particularly about the children studying. He appears to be quite driven and high achieving in his manner and to some extent, I think he expects that of his children
Again, I take that the suspicion expressed by Dr FF to be an inference based upon his observation of the father.
However, after careful consideration, I am not satisfied the evidence shows his capacity and experience in parenting is commensurate with the final orders he proposes. I take account of the fact that the father has care for the children for block periods during school holidays in the past. But school holiday is not the same as term time at school. His proposed orders would require him to parent the children, including D who is six, for 17 nights out of every 21 nights during school terms. This would require setting a routine, providing meals, helping with homework, getting the children ready for school and getting them to school. The current parenting arrangements have not given the father genuine experience in carrying the responsibilities of such continuous parenting. While I accept the father genuinely believes he would be equal to the task, there are reasons in the evidence to doubt this. The father, according to his own evidence, has been focussed on his career and presently has a number of financial problems. This is not a point of criticism, but indicates his focus has often, necessarily, been elsewhere than parenting. He presented to Dr FF as self-absorbed. The evidence satisfies me that it is more likely than not that the father does not possess a well-developed sensitivity to the emotional needs of the children, or at least a sensitivity as well developed as that of the mother. I accept Dr FF’s view that the father finds it difficult to become attuned to what his children want and how his children feel. His proposal takes no obvious account of the children’s warm and loving relationship with their half sibling QQ or what the impact of separation from her for most of each month would have on the children’s relationship with her. I am satisfied there is force in the opinions of Dr FF that the father has limited insight into his coercive responses to the children. I am not persuaded the father has come to terms with the realities of parenting three children on a daily basis during term time to the extent his proposed orders would require.
Rather, the evidence overall satisfies me that the father has been narrowly focussed on the question of the mother’s parenting capacity and her many deficits, as he perceives them, in the belief that if the Court accepts the mother is a poor parent, the children should live primarily with him. This simple equation of course is erroneous. The mother clearly has parenting deficits, but these must be weighed with all other considerations including the evidence of the father’s own parenting capacity.
Having carefully reflected on the evidence, I am also persuaded that, if the children lived primarily with the father, as he proposes, there is a significant risk that he would be unable to let go of his view the mother is a bad parent, over time would persist in undermining her to the children, and, whether consciously or unconsciously, bring about a process of some alienation of the children from the mother, and their step and half siblings in the mother’s home.
None of these factors mean the father is overall a bad parent. However, they are relevant to the question of his capacity to parent the children appropriately if the Court was to make the orders he proposes.
I am satisfied that while both parents have some capacity to meet the needs of the children their respective capacities are compromised by the factors identified by Dr FF and discussed under this statutory consideration. As pointed out, the children have a warm and positive relationship with both parents, but the mother has been rigid and controlling, while the father is self-absorbed, and prone to placing onerous expectations on the children. Neither parent has shown a capacity to promote the other parent positively to the children.
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
This consideration was not given any attention by the parties.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
I note the children and the parents have a Muslim background. I have given consideration to this factor.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each child’s parents;
Subject to the discussion of the parents capacity and ongoing conflict, I am satisfied generally speaking both parents have demonstrated a satisfactory attitude to the responsibilities of parenthood
(j) any family violence involving the child or a member of the child's family;
I refer to the discussion above under s 60CC(2)(b). I add here that issues of family violence seem to be well in the past.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It would be preferable to make the order that would be least likely to lead to the institution of further proceedings. I am satisfied the proposed order fall into this category
(m) any other fact or circumstance that the court thinks is relevant.
I have nothing to add in relation to this consideration.
PARENTAL RESPONSIBILITY
I have already referred to the presumption of equal shared parental responsibility set forth in s 61DA(1) of the Act.
An order for equal shared parental responsibility would enliven s 65DAA(1) of the Act, requiring the Court to consider equal or substantial and significant time with each parent, and the statutory obligations in s 65DAC for the parties to make decisions jointly about major long-term issues in relation to the children, consult and make a genuine effort to come to a joint decision. Section 65DAA does not demand the making of any parenting order for any type of time, and the section is driven by findings as to the best interests of the child: Tibb & Sheean at [68].
The father's primary position was that presumption was inapplicable or rebutted. I have made no finding of family violence which would render the presumption inapplicable. The entrenched conflict between the parents is a factor which would support a conclusion that the presumption is rebutted in the best interests of the children. As Dr FF recorded, the parents have often shown they are unable to parent co-operatively. This would incline the Court to allocate sole parental responsibility to one or other parent. But having said that, there are examples in the evidence and during the proceedings, discussed earlier in these reasons which show the parties have at times been able to reach a consent position on parenting.
I take account of the father's evidence that he accepts the children love their mother, and that his aspiration is for the parents to move to equal time. Despite the reality of fairly entrenched conflict, an allocation of equal shared parental responsibility would assist the realisation of this aspiration. The mother and the ICL, as noted, support equal shared parental responsibility. I am satisfied that an order allocating sole parental responsibility to the father would be perceived by both parents as a significant "victory" for him. Such an unhealthy perception would pervade the parenting interactions of the parties henceforth, possibly damage the children's perception of their mother, and have a detrimental impact on the children in the longer term. It has the potential to reinforce his demonstrated past tendency to demean the mother and feed into the potentialities for a rupture or further estrangement between the parents and their respective households.
On balance, I am satisfied the presumption applies, is not rebutted and there should be an order for equal shared parental responsibility.
I add that even if I was satisfied the presumption did not apply or was rebutted, I would find that it was the best interests of the children to make an order for equal shared parental responsibility, in any event: Jess & Garvey at [121].
Consequently, I do not propose to make an order for the father to have sole parental responsibility.
LIVES WITH THE MOTHER
After close consideration of the father's proposal, I am satisfied on balance the children should continue to live primarily with the mother, in accordance broadly with ICL's proposal. I have not accepted the father's contentions about risks in the mother's household. As already stated, I accept there are problems with her parenting capacity, and that she now has the additional burden of a new baby. I accept this will in the short impose greater pressure on her capacity to parent all the children. This will require even greater organisation in her home. I find she is capable of this. The children wish the present arrangement to continue, and the mother has shown reasonable parenting capacity since separation. I have taken account of the practical problems with the children travelling to school form the mother's home as well as the father's home. Furthermore, as discussed above under s 60CC(3)(f) I am not satisfied the father's parenting capacity extends to managing the children living primarily with him to the extent required to meet their emotional needs, if his proposed orders were made. Moreover, his proposal would result in the children being separated for the majority of each month from their half siblings, whom, in the case of QQ, they have a strong emotional attachment. If however, if the ICL's proposal is embraced by the Court, together with the extra night proposed by the father as his fall-back, there will be an appropriate balance between households.
TIME WITH THE FATHER
Since there will be an order for equal shared parental responsibility, s 65DAA(1) of the Act applies. I have given consideration to both "equal time" or "substantial and significant time" with the father in assessing what is in the best interests of the children. No one proposed equal time. As already noted, the father largely embraces the ICL's proposal, if the Court rejects the main thrust of his case. However, the father seeks his weekend time to conclude on the following Tuesday morning before school during term time. I accept this is appropriate because it gives the children greater block time with their father, it will relieve some of the parenting pressure on the mother, without imposing more significantly on the father’s parenting capacity. I am satisfied the father has the ability to get the children to their various schools on Tuesday as well as Monday mornings. It will allow for the children to live with the father for a total of nine (9) nights out of every twenty one nights (21). While this is not equal, is it substantial and significant, and is more balanced between households than the father's proposal. Accordingly, I will make orders as proposed by the ICL, subject to these adjustments.
COUNSELLING
The parties and the ICL agreed the children should continue counselling with their psychologist Ms NN. I will make an order to this effect.
RESTRAINTS
The father proposes a restraint upon the children having contact with the maternal grandfather. The ICL proposes a restraint for this purpose. Ultimately in submissions the mother conceded she would accept such a restraint, to give the father comfort, but that there should be a time limit upon it. I accept this is appropriate, since it is essentially agreed, and remove a concern of the father. Since I have found the maternal grandfather does not present a present risk to the children, and he lives in Country A, a time limit is proper. I will impose such a restraint until B turns 14. By then D will have turned 10.
AIRPORT WATCHLIST
The father did not agree with a restriction on him travelling internationally with the children, although he proposed the mother should be prevented from doing so.
I accept the mother should be restrained from overseas travel without the consent of the father. Her close family ties in Country A and her earlier attempt to leave Australia with the children in 2016 give reason for caution in allowing her to travel outside the Commonwealth of Australia. I take account of the fact she is now remarried to Mr PP with two young children in Australia. However, the reasons for caution remain.
As to the father, there is evidence he has connections to Country A as well and it is the allegation of the ATO that he has transferred significant funds out of Australia to Country A.
On balance therefore I propose to adopt the restraint on travel for both parties as proposed by the ICL.
SCHOOLING
I refer to my discussion of schooling under s 60CC(3)(d). Since I have decided the children shall live primarily with the mother in accordance with the orders proposed by the ICL, the orders for schooling should also be made, since travel times for the children if they attend HH School and GG School as secondary school would be most balanced.
COVID-19
This judgment is delivered during a further lockdown in NSW as a result of the Covid-19 pandemic. For this reason, I consider it in the best interests of the children to include orders concerning self-isolation, and other consequences of the pandemic.
CONCLUSION
For all the foregoing reasons I am satisfied the orders prosed at the commencement of these reasons should be made.
I certify that the preceding two hundred and ninety-nine (299) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 3 August 2021
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