AMIR & MAGID
[2018] FamCA 696
•11 September 2018
FAMILY COURT OF AUSTRALIA
| AMIR & MAGID | [2018] FamCA 696 |
| FAMILY LAW – CHILDREN – Child related proceedings – Best interests – Meaningful relationship – Unacceptable risk – Family violence – Where the father has not engaged in proceedings for some time – Where one child lives with the paternal grandfather – Where the paternal grandfather seeks orders that the two youngest children spend time with him – Where the father has been physically abusive towards the mother and certain of the children – Where the father has been charged with assault occasioning actual bodily harm with respect to an act of violence perpetrated against the mother – Where the paternal grandfather does not acknowledge that the father has been violent towards the mother or the children – Where the paternal grandfather has likely previously disclosed the residential address of the mother and the children to the father – Where that disclosure resulted in the father attending upon the home of the mother and the children and assaulting them – Court orders that the older child remain living with the paternal grandfather – Court orders that the younger children remain living with the mother. |
| Convention on the Rights of the Child art. 19 Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss. 43, 60B, 60CA, 60CC, 61DA, 64C, 65C, 65DAA |
| Bant & Clayton [2015] FamCAFC 222 The Hon. John Fogarty AM, ‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249 |
| APPLICANT: | Ms Amir |
| RESPONDENT: | Mr Magid |
| INDEPENDENT CHILDREN’S LAWYER: | Shedden & Associates |
| FILE NUMBER: | PAC 4503 of 2014 |
| DATE DELIVERED: | 11 September 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 25 - 26 June 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Self-represented |
| SOLICITOR FOR THE RESPONDENT: | Self-represented |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Conte-Mills |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Shedden & Associates |
Orders
All previous parenting orders made in relation to the children:
(a) C, born … 2001 ("C");
(b) D, born … 2003 ("D"); and
(c) E, born … 2009 ("E")
be discharged.
By consent, the child, C, born … 2001 (“C”) live with his paternal grandfather, Mr Magid (“the paternal grandfather”).
The paternal grandfather have sole parental responsibility with respect to C.
By consent, the children D, born … 2003 (“D”) and E, born … 2009 (“E”) live with the mother.
The mother have sole parental responsibility with respect to D and E.
Neither the father, nor the paternal grandfather shall spend time or communicate with D or E.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Amir & Magid has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: PAC 4503 of 2014
| Ms Amir |
Applicant
And
| Mr Magid |
Respondent
REASONS FOR JUDGMENT
Introduction
The mother, at the age of 14 years, married the father. By the age of 31 years, the mother had six children to the father. During the course of their relationship, the mother was subjected to a number of incidents of severe violence. Two of the children were also the subject of physical assaults at the hands of their father.
The father has not participated in these proceedings since mid-2017. The paternal grandfather, Mr Magid, was initially the Second Respondent to these proceedings. The orders he seeks will now be considered against those of the mother.
This application is brought by the mother in relation to three children:
a)C, born in 2001 and aged 17 years at the hearing (‘C”);
b)D, born in 2003 and aged 15 years at the hearing (“D”); and
c)E, born in 2009 and aged nine years at the hearing (“E”).
The mother and Mr Magid are in agreement that C should continue to live with Mr Magid.
Accordingly, this application primarily concerns the two younger children, D and E, who live with the mother. Mr Magid agrees that it is appropriate for D and E to continue to live with the mother. He contends, however, that it is appropriate for orders to be made for D and E to spend time with him, even if that time is supervised.
The mother objects to any such orders being made, primarily on the basis of her safety concerns for D and E. Specifically, the mother contends that, upon previously becoming aware of the children’s location, Mr Magid advised the father of that location. The father then attended the residence of the mother and the children and assaulted the mother and one of the children. The mother contends that would again occur, if orders were made facilitating Mr Magid spending time with D and E.
The mother further contends that D and E spending time with Mr Magid, in itself, presents an unacceptable risk as a result of the paternalistic attitude of Mr Magid and the likelihood that he will make derogatory comments about the mother to D and E.
The mother’s position has been supported by the Independent Children’s Lawyer (“ICL”). For reasons which I will set out, I am of the view that it would not be in D and E’s best interests to spend time Mr Magid or the father, because it would present an unacceptable risk to them.
Background
Mr Magid was born in 1949 in Country F and is currently aged 68 years.
The father was born in 1975 in Country F and is currently aged 43 years.
The mother was born in 1978 in Country F and is currently aged 40 years.
On 16 September 1993, at the age of just 14 years, the mother married the father in Country G. The father is the mother’s first cousin.
The mother and the father have six children:
a)Mr H, currently aged 24 years;
b)Ms K, currently aged 22 years;
c)Mr B, currently aged 18 years;
d)C;
e)D; and
f)E.
In or around 1998, the father moved to Australia.
In April 1999, Mr Magid arrived in Australia. He spent over four years in a detention centre, following his arrival.
In October 1999, the mother arrived in Australia with the parties’ two eldest children, Mr H and Ms K. The parties’ remaining children were born in Australia.
In April 2003, Mr Magid was released from detention and moved in with the mother and the father.
On 15 November 2006, the New South Wales Department of Community Services (“DOCS”) received a Risk of Harm Report raising concerns about Mr H’s mental health and the impact that it may be having on the other children in the home. The report also stated concerns about the father’s anger and his disclosure that he engages in corporal punishment of the children.
On 3 September 2008, DOCS received a Risk of Harm Report in relation to the children witnessing domestic violence in the parties’ home the previous night. C reported that his parents were arguing over a phone and that the father had hit the mother on the head with the phone and that the mother was hurt.
On 14 April 2012, DOCS received a Risk of Harm Report due to concerns regarding Mr H threatening the mother with a samurai sword and threatening to self-harm.
On 17 July 2012, DOCS received a Risk of Harm Report in relation to C witnessing a domestic violence incident at the home. This incident is described in greater detail under the heading “Unacceptable risk” below.
The mother and the father separated in approximately December 2012. The mother initially lived with the parties’ five younger children at a property in J Street, Suburb L NSW (“the Suburb L property”).
In February 2013, the mother and the father were granted an Islamic divorce.
Mr B left the mother to live with the father in around September 2013 and C left to live with the father in around January 2014.
Until Mr H, Mr B and C left her home, the mother was their primary carer.
The mother has been and continues to be the primary carer of the two younger children, D and E.
D and E have spent no time with Mr Magid since about November 2013. At that time, D was 10 years of age and E was four years of age.
The mother was not challenged on her evidence at paragraph 11 of her Affidavit that the father “has a long history of severe physical violence and verbal threats towards [the children and the mother]. His physical and verbal violence towards [the mother and the children] has been, and is, erratic and often is extreme. I am extremely fearful for my safety and the safety of my young children”.
On 6 February 2014, the father, having discovered the location of the mother’s residence, assaulted the mother and Ms K. Subsequent to that event, the mother, Ms K, D and E moved to a women’s refuge. This incident is described in greater detail under the heading “Unacceptable risk” below.
The mother subsequently moved her residence to an undisclosed location, with the assistance of M Group.
On 24 April 2014, the mother told a caseworker that she had visited Mr H in rehab. Mr H had disclosed to the mother that he, C and Mr B had been living with the father.
Other than to visit Mr B for approximately 10 minutes on one occasion, the mother did not spend any time with Mr B or C during the period February to November 2014. The visit with Mr B occurred in circumstances where he was an involuntary inpatient being treated for major depression, diabetes and drug and alcohol abuse at X Hospital between 24 June 2014 and 29 July 2014. Mr B was taken by ambulance to X Hospital after being found unresponsive in bed by the father.
On the 31 October 2014, Hannam J made orders to the following effect:
a)That D and E live with the mother;
b)That the father be restrained from contacting or approaching the mother, D or E; and
c)Requesting the Secretary of the New South Wales Department of Family and Community Services (“FACS”) to intervene.
The mother was not challenged on her evidence that Mr B and C have visited her home on four or five occasions since November 2014.
In December 2014, a Divorce Order was made.
In recent years, both Mr B, who has been diagnosed with major depression and psychosis, and C, who has developmental difficulties, have experienced difficulties in respect to their education, social interaction, employment and health. To the extent that those difficulties and interactions are relevant, they will be referred to in greater detail under the heading “The capacity of each of the children's parents” below.
The mother, Ms K, D and E have not had contact with Mr B or C since about January 2016.
The mother is currently studying an English language course at an undisclosed location.
Competing applications
Orders sought by the mother
The final orders sought by the mother are set out in her Initiating Application filed on 19 September 2014. In that application, the mother sought orders for the four children who, at that time, were are under the age of 18 years (Mr B, C, D and E), to live with her and for her to have sole parental responsibility in respect to those children.
At the final hearing, the mother did not press that application in respect to Mr B (who is now 18 years of age) or C.
Orders sought by the paternal grandfather
The orders sought by Mr Magid are set out in his Response filed on 1 September 2016, as follows (references to children who are now over the age of 18 years have been removed):
…
2. That subject to Order 1 the parties have equal shared parental responsibility for … [C], [D] and [E] ([E]).
3. That [D] and [E] live with the mother.
4. That … [C] live with their paternal grandfather.
5. That [D] and [E] spend time with their paternal grandfather as follows:
(i) each second Saturday from 9.00am until 5.00pm commencing on the Saturday following the date of this order and for the purposes of this Order changeover shall occur by the paternal grandfather collecting the children from the mother at her place of residence at the start of the period the children spend time with him and by the mother collecting the children from the paternal grandfather at his place of residence at the conclusion of that period.
(ii) At such other times as are agreed between the parties from time to time.
6. That … [C] spend time with their mother as follows:
(i) each second Saturday from 9.00am to 5.00pm commencing on the second Saturday following the date of this order and for the purposes of this order changeover shall occur by the mother collecting the children from the paternal grandfather at his place of residence at the start of the period the children spend with her and by the paternal grandfather collecting the children from the mother at her place of residence at the conclusion of that period.
(ii) At such other times as are agreed between the parties from time to time.
...
9. That this order is authority for the school at which … [C], [D] and [E] attends from time to time to provide to the mother, the father and the paternal grandfather at their request and expense, copies of all reports and school photographs and notices, including but without limiting the generality of the same, notices of school performances and concerts and parent teacher interviews and all other events to which parents and guardians of children enrolled at the school are welcome.
10. That the mother, the father and the paternal grandfather be permitted to attend any school concerts, school performances to which parents and guardians of children enrolled at the school are welcome and parent/teacher interviews.
11. That each party is to notify the other of all specialist medical appointments and hospital admissions relating to the children or any of them at least 14 days prior to such appointment or admission, or in the event of admission to hospital under emergency conditions, no later than 24 hours after such admissions, such notification to include the name and location of the hospital to which the child has been admitted and authority for each parent to be given information as to the child’s diagnosis, prognosis and treatment.
12. Each party be and is hereby restrained from saying anything negative, nasty or unpleasant to the other party or any other person in the presence or hearing of any of the children and further each party shall use their best endeavours not to expose any of the children to any third party or parties who says negative, nasty or unpleasant things about any other party.
13. That, without admissions, each party shall be and is hereby restrained form consuming any alcohol or illicit drugs within a period of 24 hours prior to any period of time that any of the children is to be in his or her care and while any of the children are in his or her care.
14. That, without admissions, each party shall be and is hereby restrained from using any form of physical punishment to chastise the children or any of them.
15. That the father shall continue to consult with and comply with the directions of his treating mental health practitioner from time to time.
16. That the mother undertake supportive psychotherapy other than arranged through Victims Services and comply with the directions of her treating mental health practitioner from time to time.
Orders sought by the Independent Children’s Lawyer
The orders sought by the ICL are set out in Exhibit “7”, as follows:
1. That all previous parenting orders made in relation to the children:
a. [C] born … 2001 ("[C]")
b. [D] born … 2003 ("[D]")
c. [E] born … 2009 ("[E]")
(''the children") are discharged.
2. That the mother shall have sole parental responsibility for [D] & [E].
3. That the paternal grandfather shall have sole parental responsibility for [C].
4. That [D] & [E] shall live with the mother.
5. That [C] shall live with the paternal grandfather.
6. That neither the father or paternal grandfather shall spend time with or communicate with [D] or [E].
Evidence
The mother relied upon the following documents:
a)Her Affidavit filed on 20 April 2017;
b)Affidavit of Ms K filed on 20 April 2017; and
c)Notice of Risk of Child Abuse or Risk of Family Violence filed on 19 September 2014.
Mr Magid relied upon the following documents:
a)His Affidavit filed on 28 November 2014;
b)His Affidavit filed on 3 May 2017;
c)His Affidavit filed on 15 March 2018; and
d)His Affidavit filed on 18 June 2018.
The ICL relied upon the following documents:
a)Single Expert Report of Dr N (“Dr N”) dated 6 June 2016;
b)FACS Magellan Report dated 26 March 2015; and
c)Magellan Family Report of Ms O (“Ms O”) dated 1 October 2015.
The ICL also referred to documents produced under subpoenas issued to:
a)P School;
b)Q School ;
c)R Centre;
d)New South Wales Police Force;
e)X Hospital;
f)T Hospital;
g)FACS;
h)U Service;
i)V Group;
j)W Associates; and
k)Dr Y.
In circumstances where the father has not participated in these proceedings for some time, much of the mother’s evidence in respect to her interactions with him, as set out in her Affidavit filed on 20 April 2017, is unchallenged. That is similarly the case in respect to the evidence of Ms K, as set out in her Affidavit also filed on 20 April 2017.
The mother and Ms K were cross-examined by Mr Magid, who appeared in person with the assistance of an Arabic interpreter, and the ICL. No issues arose during the course of cross-examination that caused me to doubt the veracity of the evidence set out in the Affidavits of the mother and Ms K, concerning acts of physical violence perpetrated by the father against the mother, Ms K and Mr H. That evidence is also corroborated by evidence relating to specific injuries sustained by the mother and Ms K and the criminal convictions laid against the father in respect to certain of those acts.
In those circumstances, I accept the evidence that both the mother and Ms K have provided regarding the acts of violence perpetrated by the father.
The law - concepts and principles
The relevant statutory provisions applicable to proceedings in relation to children are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60B sets out the objects and principles of Part VII. These are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(4) of the Act notes that an additional object of Part VII is to give effect to The United Nations Convention on the Rights of the Child (“the Convention”). Article 19 of the Convention requires parties to the Convention to take steps, including through “judicial involvement”, to:
Protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
More generally, the Act makes clear that in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c)), and to protect them from family violence (s 43(1)(ca)).
The paternal grandfather as Second Respondent
Section 64C of the Act provides that the Court may make a parenting order in favour of a parent of a child “or some other person”. Section 65C sets out those persons who may apply for a parenting order under Part VII of the Act. This includes, at sub-paragraph (c), “any other person concerned with the care, welfare or development of the child”. I accept that Mr Magid is such a person.
In this way, Mr Magid’s application is to be considered no differently than it would be if he were the biological parent of the children. In Valentine & Lacerra and Anor (2013) FLC 93-539, the Full Court said at 87,107:
The plain fact of the matter is that there are no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act). That is not altered by the parent having sole parental responsibility.
Moreover, it is clear that the considerations set out in s 60CC of the Act can be applied in consideration of the position of a non-parent, in the same way that they can to the position of a parent. Lest there be any doubt about that, it is noted that s 60CC(3)(m) provides that in determining what is in the child’s best interests, the Court must consider “any other fact or circumstance that the court thinks is relevant”.
In that respect, in Mulvany & Lane(2009) FLC 93-404 at 83,449, May and Thackray JJ said:
It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catchall consideration in s 60CC(3)(m), namely “any other fact or circumstance that the court thinks is relevant”. By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child's best interests.
There is nothing in the legislation preventing the Court from giving consideration to those other matters set out in subsections 60CC(2) and (3) when considering the relationship between a child and a person who is not the child’s biological parent. Indeed, there are common sense reasons for doing so. Such an approach was described by the Full Court in Malcolm & Monroe and Anor(2011) FLC 93-460 in the following terms at 85,520 and 85,521:
In summary, to the extent that it is asserted that some of the considerations listed in s 60CC of the Act precludes consideration of those factors in relation to persons other than a parent, for the reasons outlined above by the respective Full Courts in Mulvaney & Lane and Aldridge & Keaton, this assertion or submission is rejected. Even if the literal interpretation of the s 60CC factors which specifically refer to “parents” … must only relate to parents (in the strict sense) a submission that we do not accept, s 60CC(3)(m) would permit and, indeed, almost require a consideration of the matters set out above in relation to persons who are other than parents.
The paramount consideration before the Federal Magistrate was determining what orders could be made in the best interests of L. This in turn meant that he was to give consideration to the relevant s 60CC factors in relation to all of the relevant people in her life. We are satisfied that he did so.
Adopting that approach, I will apply the same considerations in determining what is in the best interests of the children. For convenience, in applying the s 60CC legislative guide, I will regard the legislative reference to “parent” as being equally applicable to Mr Magid, in respect to his relationship with the children.
The presumption of equal shared parental responsibility
Section 61DA(1) of the Act provides that the Court must apply a presumption that “it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”. Section 61DA(4) provides that the presumption “may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”.
In this matter, the mother seeks sole parental responsibility in respect to D and E.
Mr Magid seeks equal shared parental responsibility in respect to C, D and E.
For reasons that I will subsequently discuss, as a result of concerns regarding the potential for the mother, D and E to be exposed to family violence, I have determined that it would be inappropriate for the presumption of equal shared parental responsibility to be applied in respect to those children.
The mother does not seek parental responsibility in respect to C and, accordingly, I will make an order for the paternal grandfather to have sole parental responsibility in respect to C.
As I do not make an order for equal shared parental responsibility, it is unnecessary to consider making orders for D and E to spend equal and/or substantial and significant time with their parents and/or Mr Magid.
For reasons that I set out below, I do not make orders for D and E to spend time with either their father or Mr Magid.
Paramount consideration in making parenting orders
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in s 65DAA.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all s 60CC factors, the central issue in these proceedings is the balancing of the primary considerations set out in s 60CC(2) against one another. Those considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing those considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).
Additional considerations
Section 60CC(3) sets out additional matters for the Court to consider in determining what is in a child’s best interests. Those considerations deal with the following matters:
a)Issues relating to the child – their views, level of maturity, culture and relationships;
b)Issues relating to the parents – decision making, time spent with child, fulfilled obligations, attitude, capacity and exercise of responsibility;
c)Issues of family violence;
d)Effect of change;
e)Practical difficulty of implementation of orders;
f)Avoiding further proceedings; and
g)Other relevant matters.
Applying the section 60CC considerations
The task of applying the s 60CC considerations is an evaluative exercise that necessarily involves a trial judge determining what weight should attributed to each relevant consideration.
The primary task in these proceedings is to balance the importance of D and E having a meaningful relationship with Mr Magid, as against any risk to them should orders be made for that to occur.
Meaningful relationship
In the usual course, in terms of s 60CC(2)(a), it would be to a children’s advantage to have a meaningful relationship with their parents and other significant persons in their lives. This includes, relevantly, Mr Magid.
For reasons that I discuss below, in respect to serious acts of violence that have been perpetrated by the father against the mother and certain of the parties’ children, it is not possible for the children to enjoy a meaningful relationship with the father.
The essential issue is whether it is possible and, more relevantly, in the children’s best interests, for them have a meaningful relationship with Mr Magid.
In McCall & Clark (2009) FLC 93-405, the Full Court accepted that an appropriate interpretation of the concept of “meaningful relationship” was provided by Brown J in Mazorski v Albright (2007) 37 Fam LR 518 at [26], where His Honour said:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. [Emphasis added].
At the present time, D and E do not have a meaningful relationship with Mr Magid. Other than in respect to assessments conducted by experts for these proceedings, they have not seen Mr Magid since November 2013.
The Full Court, in McCall & Clark (supra) at [117], referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that the enquiry was a “prospective” one, which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child. In other words, the focus is upon whether D and E having a meaningful relationship with Mr Magid will be of advantage to them in the future.
The Full Court in McCall & Clark (supra) continued at [122]:
… No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
In Fitton & Kimble [2017] FCWA 106 at [37], Walters J said that, in seeking to discharge the Court’s broader obligation to make orders that are in the best interests of a child:
… the Court is required to consider, as one of a large number of factors, the benefit to the child of having such a meaningful relationship … As the Full Court said in Jurchenko & Foster [2014] FamCAFC 127 at [123]:
… [Having] a "meaningful relationship" with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child's best interests.
In Cotton & Cotton (1983) FLC 91-330 at 78,252, Nygh J qualified the desirability of a child maintaining a meaningful relationship with both parents in the following terms:
…that desirability only operates when there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contacts sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. [Emphasis added].
I agree with that qualification.
In his report dated 6 June 2016 at page 30, Dr N states:
Should contact be reintroduced between [D], [E] and the paternal grandfather with the older siblings, I believe that this would be a positive outcome. I do believe that there is an important relationship between the children and the grandfather. In the long term, this I believe is important. It is also important for [D] and [E] to have a strong relationship with the older siblings. I don't accept that there is an unacceptable risk for the younger two children with the grandfather.
Dr N also expressed the view that Mr Magid “was an important adult figure and stabilising force within the family and that he should continue to play a significant role in all the grandchildren’s lives”.
I accept that, in the ordinary course, it would be a positive outcome for D and E to have a meaningful relationship with Mr Magid and their older siblings, who live with him. However, as I will explain below, I am satisfied that there is an unacceptable risk, posed to D and E, should orders be made for them to spend time with Mr Magid.
Unacceptable risk
As previously noted, s 60CC(2)(b) of the Act provides that the other primary consideration in determining the best interests of a child is “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.
In M v M (1988) 166 CLR 69 (“M v M”), the High Court noted that the Family Court “is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about will have a detrimental impact on the child’s welfare”.
Writing extra-judicially, the Honourable John Fogarty AM, a former judge of this Court, said the following in ‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249 at 261:
… unacceptable risk in the High Court’s formulation [in M v M] requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. [Emphasis added].
In M v M, the High Court said that in assessing whether a child faces an unacceptable risk of harm, the “existence and magnitude of the risk … is a fundamental matter to be taken into account”.
In N & S (1996) FLC 92-655 at 82,714, Fogarty J said that “the essential weight must be attached to the magnitude of the harm to which the risk relates”.
In Blinko & Blinko [2015] FamCAFC 146 at 83, the Full Court confirmed that, having identified a risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”.
Accordingly, in applying those authorities to a determination of whether the making of orders requiring the mother to facilitate D and E spending time with Mr Magid would present an unacceptable risk to them, I intend to consider the following three related elements:
a)The magnitude of the risk of D and E spending time with Mr Magid;
b)The magnitude of the possible consequences to D and E of spending time with Mr Magid; and
c)The extent to which any such risk can be managed or ameliorated by building into the arrangements potential safeguards.
Even though there is not an application before the Court for D and E to spend time with the father, it remains the case that the primary risk to them is their being exposed to the violent nature of the father and, as will be explained below, the connection between spending time with Mr Magid and the likelihood of such exposure.
In his report, Dr N stated that he had difficulty in forming a clear view about the mother’s allegations of family violence. He stated:
However, I don't believe that there was a clear history of habitual violence or that the father has an antisocial history to suggest that he would be an unacceptable risk to the children. There are disputed disputes about what has essentially happened. The judge will need to make a decision as to whether there was any significant violence. I don't believe that violence is the major issue here and in addition the father has not applied to the court in this matter.
With respect, I do not accept that opinion. There is an extensive history of the father committing serious acts of physical violence, which is substantiated by criminal convictions. In circumstances where the evidence of the mother and Ms K in respect to the family violence perpetrated by the father is plausible and consistent with objective evidence of injury, I accept their account of the violence perpetrated by the father, which I will describe below.
The opinion of Dr N and his scepticism regarding the significance of violence in this matter is at odds with the view of the Family Consultant, Ms O, who prepared the Court’s Magellan Report, wherein the following opinion was expressed at paragraphs 94 and 95:
As a result, is suggested that [the father] spending any time with [D] and [E] would expose them to unacceptable risk of both physical and psychological harm. [D] and [E’s] safety has been unable to be effectively managed through the use of an AVO, or the criminal court system. [The father’s] continued denial of this violence, and hence lack of responsibility in relation to his behaviour, also further increases the likelihood that he would perpetrate violence again towards [the mother], and consequently the children.
Given [Mr Magid's] inability to identify the risks posed by [the father] to all four children, it is not considered in [D] and [E’s] best interests to spend any time with him. [Mr Magid], despite his denial, appears to have let [Mr B] and [C] spend unsupervised time with [the father] in contradiction to FACS' recommendations. It is not considered that he is protective enough to ensure that time with [D] and [E] and [the father] does not occur. The fact that [D] and [E] have not spent any time with [Mr Magid] since November 2013, and [D] has expressed a desire to not spend time with him, supports this recommendation.
For reasons that I set out immediately below, I concur with those views expressed by Ms O.
The mother sets out a number of acts of violence perpetrated by the father against her and the children. I will now address the most serious of those.
The first report of violence occurred in or around May 1995 in Country G, when the mother was 15 years of age and was 5 months pregnant with her second child, Ms K. The mother describes being threatened with a gun by the father at paragraphs 26 to 29 of her Affidavit, as follows:
… My oldest son, [Mr H] was only ten months old would constantly cry and scream loudly, as newborn babies sometimes do.
The Father kept demanding that I quieten [Mr H] down and I was unable to, partly due to my inexperience dealing with children as a young fifteen-year-old mother.
The Father became enraged at my inability to quieten the child down and he pulled a gun out of his pocket and threatened to shoot me right then and there. I froze and did not know how to react.
As the Father was screaming threats at me, his brothers overheard from the nearby room and rushed to calm him down and take the gun out of his possession.
The mother attests that in or about 2000, Mr H, who was six years of age at the time, was afraid to sleep in the dark on his own. The father responded to this by pulling the drawers out of a drawer chest and smashing them on Mr H’s head and shoulders until the drawers broke.
The mother further attests that in or about May 2003, an incident occurred following an argument between herself and the father regarding Mr Magid and his friends spending considerable lengths of time at their home. The mother stated that the father reacted violently towards her when she said words to the effect of: “No, I will not do what he [Mr Magid] wants nor what his friends want”. The mother recounts the father’s reaction to that at paragraphs 54 to 57 of her Affidavit, as follows:
The Father became infuriated and began to punch me on my shoulders. The force of the punches pushed me to the floor where he began to kick me on my back and legs.
I fell to the floor and he kicked me on my back and legs. I began to scream and was horrified that he would kick me in the back because I was four months pregnant at time.
This occurred in the presence of our children [Ms K], [Mr B] and [C] who at that time were eight, three and two years of age respectively.
The Father then left the house as I was on the ground in pain after that attack. As the Father was walking out, he said words to the effect of:
“I am leaving and when I return I am going to kill you”.
The mother attests that, in late-2008, a further violent event occurred as result of a disagreement between herself and the father as to whether they would go to a park with the children. The mother states that the father initially refused to take her and the children to the park, but that he decided to do so at around 6:00pm. The mother says that she stated that it was too late, at that time, to go to the park. Following a verbal disagreement between herself and the father in relation to that issue, the mother recounts that the following occurred:
The Father proceeded to punch me on my shoulders. All of the children, except [E] were present during this attack and they began crying and yelling words to the effect of: "Dad, no! Stop!"
The Father then picked up a vase that was in the room and hit me across my torso with the vase. The Children's crying and yelling increased and so did my fear of The Father.
I got up as fast as I could and ran into the main bedroom and locked the door. A minute or so later, The Father came to the bedroom began striking it with a knife and he was yelling words to the effect of:
“Open the door or I will slaughter (kill) you!”
The mother says that she refused to open the door to the bedroom, which resulted in the father going outside and throwing a glass bottle through the bedroom window. The mother then rushed out of the main bedroom and into Ms K’s bedroom, before locking the door and calling the Police.
The mother attests that, in about September 2009, an incident occurred between herself and the father. She stated that Mr Magid was a witness to it and, indeed, attempted to intervene to protect the mother. The mother’s account of that incident is set out at paragraphs 73 to 82 of her Affidavit, as follows:
On or about September 2009 I was speaking to my mother on the phone and preparing food in the kitchen.
The Father approached me and said to me words to the effect of:
The Father: "Make some soup for [Mr B]".
I replied: "Okay, I am heating up the soup now."
I reached down to get some plates of food from the fridge and once again, without any warning whatsoever, I felt myself being pushed violently onto the floor where I spilled all the food that I was carrying.
I was in shock when I realised that it was [Mr Magid] who had hit into me as he was struggling to keep The Father from attacking me.
I immediately noticed The Father was carrying a large screwdriver in his hand and said to me words to the effect of:
"May God curse you and your family, I swear to God I will slit your throat."
[Mr Magid] was trying to subdue The Father and he was struggling. [Mr Magid] had hold of the arm in which The Father was holding the screwdriver and shouted at me words to the effect of: "Leave now! Run away!"
Our children [Mr H], [Ms K], [Mr B] and [C] were all present at the time and they began screaming and yelling words to the effect: "Dad, no! Leave her alone!"
I ran with the children to [Mr H's] room which did not have a lock so [Mr H], [Ms K] and I moved the cupboard to block the door from being opened.
I could hear The Father in the living room yelling words to the effect of: "I will slit all your throats". He repeated this about three or four times.
[Mr Magid] then came and let us out of the room and ushered us out the back door. As I was leaving I turned and saw The Father standing in the middle of the living room swinging a sword and repeating words to the effect: "I will slit all your throats". This sword was a decorative sword, however was still sharp and capable of inflicting serious injury.
The mother was not cross examined on that evidence. However, in response to a question posed to him by Counsel for the ICL, Mr Magid denied that he was present during any incident violent incident between the mother and the father in 2009. The transcript of that cross-examination provides:
Question: You don’t think your son – and I think that was an incident in 2009 – you don’t think your son did anything wrong at that time.
Answer: To be honest, I – I wasn’t there when the event happened, and then I asked him, “Why did you hit the woman?” He says, “I didn’t.” That’s what he said.
Question: All right. So you - - -
Answer: But I saw that she was taken by an ambulance.
Question: All right. So when your son said, “I didn’t hit the woman”, you believed him, did you?
Answer: I didn’t total hundred per cent believed him, because I see blood on – the event occurred, and later he said, according to his words, that, “She fabricated this event in order to leave me.”
Question: All right. So do you believe that [the mother] made it up?
Answer: To be honest, both of them are in – I’m in doubt of both of their statements, but she was – she was seen with wounds and cuts, and she said – I was told, “Your son has hit her.”
It is to be noted that the mother’s evidence, as set out above, made no reference to actually being struck by the father or being taken to hospital, by an ambulance or otherwise, following the incident. In those circumstances, it appears that Mr Magid’s oral evidence relates to an event that occurred on 17 July 2012, which I address at paragraph 109, below.
Further, at paragraphs 14 to 19 of her Affidavit, Ms K sets out the following in relation to an incident that occurred in February 2012:
On or about February 2012 my Father came into the house while I was sitting on the lounge with [Mr Magid] and paternal aunt, [Ms Z].
Out of nowhere, My Father started to hit me by slapping me very hard across the face with his hand and stepping on my head while pulling my hair. As he did this, he was screaming at me saying, "You dog I hate you and your brother ([Mr H])".
My Mother became furious and started to scream words to the effect: "What are you doing?! Don't hit my children!"
This drew his attention away from me and to My Mother. My Father started to attack her by pulling at her hair and slapping her across her face numerous times. [Mr Magid] pulled him away and my paternal aunt pulled My Mother and I away to the main bedroom and locked the door.
Shortly after this, I heard a loud commotion coming from the lounge area and I immediately thought of the rest of my siblings. I ran out of the room to check up on them and I saw My Father in the kitchen grabbing a knife from the drawer and coming towards me and My Mother.
[Mr Magid] grabbed My Father from behind, locked his arms together and then locked him outside in the back yard.
In his Affidavit filed on 18 June 2018, Mr Magid disputed the evidence of the mother and Ms K that he had perpetrated acts of violence against them and the other children. He did not, however, cross examine them in respect to their evidence in respect to acts of violence perpetrated by the father against the mother and certain of the children, nor did he provide an alternative narrative to address the events that they described. In circumstances where the evidence of the mother and Ms K as to the incidents that occurred in September 2009 and February 2012, respectively, has not been contradicted and is plausible, I accept that evidence. That finding is significant, because I am satisfied that, contrary to his statements to Dr N, Mr Magid has witnessed violent acts perpetrated by the father against the mother and certain of the children.
The fact that Mr Magid has failed to acknowledge that he was aware of the extent to which the father has perpetrated violence against the mother and the children is a significant concern.
Further, the mother attests that on 17 July 2012, after an argument between the parties in respect to the father’s desire for Ms K to leave school, the father struck the mother multiple times on the head with a perfume bottle which he was holding in his right hand. The incident was witnessed by the parties’ son, C. Ms K was awakened during the incident and upon seeing the state of the mother, called an ambulance. The mother was conveyed to a hospital by the ambulance and required 36 stitches in her head as a result of the injuries she received at the hands of the father.
The mother’s account of that incident is corroborated by evidence provided by Ms K at paragraphs 37 to 50 of her Affidavit.
After the parties separated in December 2012, the mother and the four youngest children moved to the Suburb L property. Approximately two months thereafter, the mother provided Mr Magid with the location of that residence. The mother’s explanation for the circumstances in which she provided that information to Mr Magid was not challenged and is set out at paragraph 115 of her Affidavit, as follows:
[Mr Magid] had been persistently calling me and saying words to the effect of "I miss my Grandchildren, I want to see them, please tell me where you are living I promise I will not tell [the father]”. On [Mr Magid’s] persistence [sic], I disclosed our address at the time on the understanding that he would not disclose the address to the Father and [Mr H].
Mr Magid denied providing the mother’s address to the father, however, the mother was not challenged on her evidence that, the day after she provided that information to Mr Magid, the father and Mr H came to the Suburb L property where the mother was living with the children. At the time, the mother was out shopping with C, while Ms K, Mr B, D and E remained at the home.
The mother was not challenged on her evidence that when she arrived home from shopping, she saw Mr H standing with a pocket knife in his hand. The mother stated that she said to Mr H words to the effect of “What are you doing here? Where are my children?” Mr H responded: “We found out where you live and we’re going to take the children”.
The children had, in fact, been taken to a park by the father, but were subsequently returned to the home.
Further, the mother states that on 6 February 2014 at approximately 7:00 am, the father attended the Suburb L property, in circumstances where an Apprehended Violence Order (“AVO”) was in place for the protection of the mother from the father. The mother, who, again, was not challenged on her account, described the incident, at paragraphs 138 to 147, as occurring after she heard Ms K screaming, as follows:
I ran to the back door as fast as I could and as I reached the back steps, I saw The Father wearing my brown, silk dress and standing over [Ms K] in the laundry, which is located outside in the backyard.
The Father was pulling [Ms K's] hair with his left hand and in his right hand he was carrying a sharp, silver object approximately 30 centimetres long. It looked like a long knife or a screw driver.
I saw The Father repeatedly hit [Ms K] on the head and shoulders with this object. [Ms K] was screaming out for help and was struggling to break free.
I began to scream at The Father and [Ms K] managed to get away from him. I shouted to [Ms K] to run inside so that she could get away from The Father and the sharp object that he was hitting her with. I then began to run around the backyard to distract The Father from [Ms K].
The Father then began chasing me around the backyard and managed to grab me. He wrapped his arm around my left shoulder and started hitting me with the same silver, shiny object on my arm and shoulder.
I was extremely frightened and shocked at the scene. Due to The Father's behaviour and demeanour I honestly believed that he was going to kill me right then and there.
I struggled with all my strength and broke free from The Father. He then grabbed me again by the shoulder and shoved me violently into the metal hand rail next to the backyard steps. He did this approximately three times.
I began to scream and shout for help at the top of my voice. As a result, The Father was taken aback and started to run away. He jumped over the back fence which leads to an adjacent park.
I ran back inside the house to check on [Ms K] and could see that she had blood all over her head and chest. The Police and Ambulance service arrived and both [Ms K] and I were taken to [X Hospital] for treatment.
At the hospital I was given an injection and medication for the intense pain that I was feeling. I had bruising all over my left arm and chest region and cuts to my arm and shoulder. [Ms K] was treated for cuts to her head, arms and shoulders.
After that incident, the mother and the children left the Suburb L property and went to a crisis refuge for women and children in Suburb AA. The mother remained at that crisis centre for approximately four months, until 4 June 2014. She and the children subsequently moved to an undisclosed location, facilitated by M Group.
On 5 June 2014, the father was charged with common assault, contravention of an AVO and reckless wounding. Those charges were dealt with pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1900 (NSW). An AVO was issued against the father for the protection of the mother, Ms K, D and E for a period of two years.
The evidence of the mother is corroborated by Ms K’s account of that incident at paragraphs 63 to 74 of her Affidavit. Annexure “C” to that Affidavit comprises photographs showing a puncture wound to the top of Ms K’s head and extensive blood stains on her forehead, across the left side of her face, on her chest and on her hands. One photograph also shows two smaller puncture wounds to her left arm, with extensive bruising surrounding those wounds. Ms K’s experience of confronting her father, who was wearing her mother’s clothing while brandishing an implement that he used as a weapon and with which he caused actual injury to her would have been, as she described, extremely traumatic for her.
While Mr Magid denied advising the father of the mother’s address, the coincidence of the mother disclosing that address to Mr Magid and the father arriving at that property the following day, cannot be ignored.
In assessing whether it is likely that Mr Magid advised the father of the mother’s location, it is relevant to have regard to the views of Mr Magid in respect to the violence perpetrated by the father. In Ms O’s Magellan Report, it is stated:
In regards to family violence between [the mother and the father], the paternal grandfather said that he had never witnessed physical family violence between them.
That report also records Mr Magid as saying that he did not believe that the father was a danger to the children. In fact, Mr Magid stated that the father had never harmed the children.
Dr N reports that in the interview he conducted with Mr Magid for the purposes of the Family Report, Mr Magid advised him that the father was not violent and that the claims of violence were “spurious”.
Mr Magid’s failure to acknowledge that he has witnessed acts of violence perpetrated by the father against the mother and certain of the children is a matter of great concern.
Also of concern is Mr Magid’s failure to recognise the impact of the father’s mental health challenges. In that respect, while generally extremely complimentary of the role that Mr Magid has played in respect to the children, Dr N stated that one qualification was perhaps the fact of him “not fully being aware or understanding [the] mental illness that [the father] may be suffering from”.
Further, it is of note that, in his report, Dr N stated that he “found it difficult to form a view about the alleged violence” perpetrated by the father. I have found no such difficulty. I have found that the father has perpetrated serious acts of family violence against the mother, Ms K and Mr H.
I am also satisfied that the father has a severe mental illness, which presents a significant risk to the mother and the children.
Of even greater concern is Mr Magid’s opinion that the mother is partly responsible for the acts of violence perpetrated upon her. Specifically, Mr Magid gave oral evidence at the hearing that the mother should hold some “responsibility” in respect to the violent events. In that respect, Mr Magid (through an Arabic interpreter) stated:
He [the father] is ill, and he’s easily – get on his nerves. And it is a condition – her mistake is that she – if she sees him in that state, she should avoid him. If I’m upset now, for example, you shouldn’t speak to me about an upsetting thing. You just wait for – till I calm down. She needs to tolerate – she needs to hold some responsibility for what happened.
There is no reasonable basis for Mr Magid’s contention that the mother is in any way responsible for the acts of severe violence perpetrated by the father against her. The fact that Mr Magid holds that view makes it more likely that he has, in the past, and will, in the future, notify the father of the mother’s place of residence.
In the context of the mental health concerns of the father, the corroborative evidence pertaining to his acts of violence, including his criminal convictions, the mother requiring a significant number of stitches in her head and photographs of injuries sustained by Ms K, and in circumstances where that evidence is unchallenged and plausible, I accept the evidence of the mother and Ms K.
The consequences of D and E possibly being exposed to such an incident in the future are so significant as to present an unacceptable risk. The primary focus of this decision is to prevent, D and E from confronting a similar experience.
In that context, in assessing the risk of that occurring in the future, it is not necessary to determine that, as a matter of probability, Mr Magid is likely to advise the father of the mother’s location. In assessing whether there is such a risk, in Bant & Clayton [2015] FamCAFC 222, the Full Court said at [99]:
It also must not be overlooked that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk (Malec v J C Hutton Pty Ltd (1990) 169 CLR 638), as long as there is a proper basis for those “possibilities”.
Should that occur, in terms of the criteria to which I have referred, that is the magnitude of the risk of harm, I am satisfied that the children would likely be exposed to serious physical harm at the hands of the father. I refer, in that respect, to the violence perpetrated by the father against Ms K.
I am further satisfied that the children would be likely to be exposed to serious acts of physical violence perpetrated by the father against the mother.
In those circumstances, I find that there is an unacceptable risk associated with the children spending time with Mr Magid, because it is possible that he would, as he has probably done in the past, inform the father of the location of the mother and the children.
The issue for determination, therefore, becomes whether that risk can be mitigated by supervision. It is implausible, in my view, to contemplate that even an experienced supervisor would be able to regulate any conversation between D, E and Mr Magid to the extent that the supervisor would be able to prevent D and E disclosing information that could lead to Mr Magid, and by extension, the father, ascertaining the location of the residence of the mother. In that respect, conversations regarding the school/s that D and E attend, where they play sports, where they engage in extra-curricular activities, socialise and even go shopping would be information that would assist Mr Magid and the father in identifying the location of the mother’s residence.
In summary, the magnitude of the risk of harm to D and E at the hands of the father, and the consequences of the same, if the location of their residence were to be disclosed to him is so significant that it outweighs all other issues. It is an unacceptable risk and it is a risk that would occur in the event of the children spending time with Mr Magid because it is, in my view, likely that he would convey information to the father that either specifically identified where the mother lives or, at least, provide information enabling the father to ascertain that location. Further, I see no means of adequately ameliorating that risk.
For that reason alone, I am satisfied that orders should not be made for the children to spend time with Mr Magid.
Issues relating to the children – their views, level of maturity, culture and relationships
Any views expressed by the children
Section 60CC(3)(a) requires the Court to have regard to any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views.
The ICL was not challenged on her statement that as at 21 April 2015, D had expressed “a fervent wish” that she not spend time with the father or Mr Magid.
In his report, Dr N recorded that D advised him that she wanted to see C and Mr B, “but not with [the father] or [Mr Magid] or [Mr H]” present.
Ms O’s report records D as saying “she did not want to spend time with [Mr Magid] because she did not recall them conversing when they had previously spent time together”.
At the time of his interview with Dr N, E was 6 years old. Dr N expressed the view that, at that age, E was too young to form a view for himself, however, Dr N nonetheless believed that he “would be happy to have contact with his siblings and also both parents and the grandfather”.
The nature of the relationship of the children with each of their parents and other persons
Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the children with each of their parents and other persons, including any grandparent or other relative of the children.
The mother has a close relationship with D and E. She has been their primary carer since they were born. She has been and continues to be their provider in terms of their financial, emotional and physical needs, including for education food, clothing, medication and extracurricular activities.
Mr Magid lived with the mother and the father between 2003 and 2010. It is noted that at that at the time that he ceased to live with them, D was aged approximately 7 years and E was aged approximately 12 months.
At paragraph 2 of his Affidavit filed on 18 June 2018, Mr Magid states:
I have assisted in caring for all of my grandchildren since their birth. I have taken them to school, medical appointment, playground, shopping centres. I have also 22 grandchildren and I love them all and assist in caring for all of them as the head of my family.
I accept that until November 2013, Mr Magid provided that assistance and care for D and E and that he continues to provide that care in respect to C. I also accept that he loves each of his grandchildren.
I accept the opinion of Dr N that it is likely that, when he resided with the mother and the father, Mr Magid played a mediating role in respect to disputes arising between the mother and the father.
Dr N also expressed the view that Mr Magid had a close relationship with the children. In that respect, Dr N states:
It was also my view that from the short interaction that I was able to observe that [D] and [E] were very close to the grandfather as well. The interaction between [D] and the grandfather and the embrace that they gave each other was a clear indication of their comfort with each other. [E] also appeared quite comfortable and was quite happy being with the grandfather.
I accept that the children were comfortable in the care of Mr Magid at the time of the interview with Dr N, however, that does not displace the unacceptable risk to which I have earlier referred. Indeed, the fact that the children were comfortable with Mr Magid makes it more, rather than less, likely that in future meetings they would convey information to him regarding the details of where they live or information which would enable that to be ascertained.
The maturity, sex, lifestyle and background of the child and either of the children’s parents
Section 60CC(3)(g) requires the Court to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and either of the children’s parents and any other characteristics of the children that the Court thinks relevant.
Neither D nor E have been exposed to acts of violence perpetrated by the father since February 2014. They are both progressing well at school. It was agreed by all parties at the hearing that the marks reflected on the children’s school reports range from “sometimes high achievement in areas through to sound achievement”.
It is relevant that both the mother and Mr Magid are practising Muslims. There is no suggestion that the children will not also continue to practice that religion. However, Mr Magid takes a more conservative view of Islamic religious teachings than the mother. In that respect, when Ms K was asked by Mr Magid in cross-examination why she objected to D and E spending time with Mr Magid, Ms K stated:
Because you’re going to cause them harm. You’re going to oppress my sister. My sister is able to go – to do dance in school. She’s not forced to wear the hijab. She’s not forced to do anything that I was forced to do.
In response, Mr Magid said: “So that means – that means you evicted [D] from Islam”.
Mr Magid expanded upon his views in respect to Ms K’s evidence in his final submissions, as follows:
According to Ms K she says ... [D] is going to go to dance classes and would throw the hijab. I think when you remove a child from a – a certain culture and put them in a different culture, a second culture, as a – a Muslim this is – dancing in the street not wearing hijab is not a Muslim tradition. So the mother is obviously trying even to change the culture.
Mr Magid’s more conservative view of Islamic religious practices is not, in itself, a matter that would result in the making an order for D and E to spend no time with him. However, I am satisfied that there would be a degree of tension between the lifestyle that the children are now living and the more religiously conservative expectations of Mr Magid.
Again, in the context of the risk to which I have referred, this is very much a secondary consideration.
The culture of the children if the children are Aboriginal or a Torres Strait Islander
Section 60CC(3)(h) requires the Court to consider issues pertaining to the culture of the children if they are Aboriginal or Torres Strait Islander. This is not a relevant consideration in this matter.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility
Long term decision making, time and communication
Section 60CC(3)(c) requires the Court to consider the extent to which each of the children’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the children, to spend time with the children, and to communicate with the children.
The mother lives with D and E and it would appear that she has made all of the necessary long-term decisions in respect of them since she and the father separated.
Mr Magid has been persistent in wanting to spend time with D and E, but for the reasons addressed above, has not done so since about November 2013, when D was 10 years of age and E was four years of age.
The capacity of each of the children's parents
Section 60CC(3)(f) requires the Court to consider the capacity of each of the children's parents, and any other person, to provide for the needs of the children, including emotional and intellectual needs.
In relation to the mother, Dr N states:
In my view, I formed the view that [the mother] presented as a loving caring mother who could continue to care for her children. However, I believe that she's now made a choice that she wants to only care for the younger 2 children and is prepared to sacrifice the older children in order to try and forge a better life for herself with her new relationship.
At paragraph 3 of his Affidavit filed on 18 June 2018, Mr Magid stated that, until her marriage to another man, the mother was caring well for the children, however “after her marriage to another man” D and E have not been properly cared for. There was no evidence provided to the Court which justified that conclusion and the mother denied that she had remarried.
Dr N expressed the view that: “[D] appears to be progressing well and [E] also appears to be progressing well at this point”.
Dr N further stated that “it would appear that [the mother] has been caring well for the children with the support of [Mr Magid]”. It is to be noted, however, that Mr Magid has not played a role in the children’s lives since November 2013. The mother has been the sole carer for D and E in the period since that time.
Mr Magid contended that he has and continues to have the capacity to care for D and E. This was disputed by the mother.
The mother states that Mr H, Mr B and C have experienced significant difficulties in the period that they have been living with Mr Magid. In that respect, the Magellan Report provided by FACS relevantly stated:
On 04 August 2014 Community Services received a risk of significant harm report in relation to [C]. The reporter raised concerns that on 18 July 2014 [C's] older sibling [Mr H] was asked to move out of the home by his father who made [Mr H] angry and [Mr H] proceeded to threaten to burn the house down and kill the father. He has also produced a knife whilst making threats of harm and had thrown a TV from the first floor. [C] was reported to have become distressed from witnessing the incident.
Community Services spoke to paternal grandfather on the same day and he confirmed that [C] and [Mr B] were residing with him. He informed that the children went regularly to their father’s house to see him. … [To Hospital] and the adolescent mental health team were working with [Mr B] to manage his diabetes and mental health issues. The school counsellor remained working with [Mr B] and [C] and Community Services caseworker had regular contact with all of the above services to receive updates about the children. The services reported that despite several attempts made by the services to work with [Mr B] and [C] there were difficulties with their engagement.
On 23 October 2014 Community Services received a report in relation to [Mr B]. The report raised concerns that [Mr B's] diabetes was not being managed appropriately and hasn't been turning up to clinic appointments. The report stated that the paternal grandfather was emotional and said he was not coping with [Mr B] who was drinking alcohol, smoking marijuana and cigarettes and not attending school. [Mr B] was admitted to the [T Hospital] for managing his mental health issues from 24 June 2014 to 29 July 2014. [Mr B's] diabetes was addressed while he was an inpatient; however since he was discharged he has gone downhill again.
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On 18 December 2014 Community services received a report in relation to [Mr B]. The report raised concerns that [Mr B] has been popping pills, not following diabetes treatment, not attending school and committing crimes. There are professional supports in place however [Mr B] appears to be on "his own path of destruction".
Community services contacted the drug and alcohol service at [T Hospital] who advised that [Mr B] was discharged on 18 December 2014. An appointment was made by the hospital on 13 January 2015 with the Adolescent drug and alcohol unit. Another appointment was made on 4 February 2015 to manage [Mr B's] diabetes.
It was the opinion of Dr N that Mr Magid “appears to be a competent caring parent and grandparent”.
Dr N further stated that:
I formed the view that he [Mr Magid] was an impressive individual who was trying to remain balanced and supportive of the whole family including the grandchildren. I believe that he could continue to care for the children if required although he does have a major challenge with [Mr B] who has a mental illness and [C] who has some developmental and speech difficulties.
Under the heading “Formulation & Summary”, Dr N expressed the view that “the paternal grandfather presents as a caring, concerned, responsible figure for the whole family who finds it difficult to understand why [the mother] has rejected him and made allegations against him”.
The extracts from the DFACS Magellan Report concerning Mr H, Mr B and C, to which I have referred, indicate that both of those young men have significant health and behavioural issues. That, no doubt, presents a significant challenge for Mr Magid in continuing to care for them. It also places in context the mother’s decision to avoid having D and E spend time with Mr H, Mr B and C.
In that respect, the mother expresses concern that if C was to live with her, D and E would be exposed to antisocial behaviour on his part.
At the hearing, Counsel for the ICL referred to documents produced by C’s school, which report that in mid-2017, C was suspended for a period of 20 days as a result of an incident involving physical violence. In relation to that incident, Counsel for the ICL read aloud the following extract from C’s school counsellor’s notes:
[C] reportedly walked up to a teacher and moved close to his face and said, “I’m going to cut your fucking head off, you motherfucker, and I’m going to put it in the bin.” He also allegedly threatened to break into the teacher’s car.
Mr Magid stated that he could not remember this occurring.
I accept that the task of caring for both C and Mr B would be challenging for Mr Magid. In circumstances where they both appear to have significant challenges, I do not find that Mr Magid lacks parental capacity. On that basis, in circumstances where he has resided with Mr Magid since 2014, it is appropriate for orders to be made for C to continue living with Mr Magid and for him to have sole parental responsibility for C.
Further, in the circumstances of this case, the mother’s decision not to seek orders for C to live with her does not reflect adversely upon her parenting capacity. Her priority is, understandably, to keep D and E on the positive path that they now appear to be travelling upon.
The parent’s obligations to maintain the children
Section 60CC(3)(ca) requires the Court to consider the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children.
The mother has been solely responsible for maintaining D and E since the parties’ separation. She has not received any financial assistance from either the father or Mr Magid, in that respect.
Attitude and parental responsibility
Section 60CC(3)(i) requires the Court to consider the attitude to the children, and parental responsibilities, by each of the children’s parents.
Mr Magid contended that the mother has acted irresponsibly in alienating D and E from him. In that respect, at paragraph 6 of his Affidavit filed on 18 June 2018, Mr Magid states:
This year 2016 in April the mother and my granddaughter [Ms K] called me and I overheard her saying, “This is your grandfather tell him that you don’t want to see him.” I also heard [E] crying and telling his sister [Ms K], “keep away from me.”
Every time when there is a hearing or a mention for the court, [the mother] told her daughter [Ms K] to tell me it is better for me not to attend; and if I do, [the mother’s husband] and his friends will beat me and harm me.
There was, again, no evidentiary basis justifying that allegation on the part of Mr Magid.
In the context of asserting that the mother alienated D and E from him, Mr Magid asserted that, on the day of their interviews with Dr N, the mother objected to D and E spending time with the father and Mr Magid. Mr Magid’s account of that occurring is consistent with the report of Dr N. The mother’s explanation for so objecting was related to her experience of the father’s violence. In the context of the mother’s unchallenged evidence regarding the extent of the violence that she was subjected to, her objection to the children spending time with the father was understandable. In circumstances where Mr Magid was in the company of the father, at that time, the mother’s concerns were again, in my view, equally justified.
Further, at paragraphs 133 to 134 of her Affidavit, the mother recounts the following incident:
On or about January 2014, [C] said to me words to the effect of: “Dad is sending me messages saying that if I don’t go and live with him he does not want to see me anymore.” …
The next day [C] left to live with his father. On this day, the grandfather posted a picture on WhatsApp of himself and [C] with a caption reading “[C] is finally free from his mother”.
A screenshot of that message is annexed to the mother’s Affidavit.
It was, in my view, irresponsible of Mr Magid to send that message. It displayed a poor attitude on his part towards the children’s needs and the responsibilities that he has towards them as a parental figure.
Issues of family violence
Any family violence involving the children or a member of the children’s family
Section 60CC(3)(j) requires the Court to consider any family violence involving the children or a member of the children’s family.
In dealing with the issue, I have already noted several incidents of significant family violence perpetrated by the father against the mother, Ms K and Mr H.
Further, the mother was also not challenged on her evidence that the father regularly abused and denigrated her by shouting things at her, such as: “slut”, “whore”, “daughter of a dog” and “God’s curse be upon your family”.
Further, the mother was not challenged on her evidence that, in or about November 2013, the father began sending text messages to her father, who resides in the UK. One such message sent at that time read: “You and the Police. You cannot protect your daughter”.
Ms K was, similarly, not challenged on her evidence that she received threatening text messages from the father. At paragraph 52 of her Affidavit, Ms K states that towards the end of 2012, she advised the father that she had received an offer of employment from Company S. The text message exchange is attached to her Affidavit as Annexure “B” and reads as follows:
[Ms K]: dad … [Company S] offer me a job part time and i get paid… should i take it
Father: No ill kill you ASAP you and your mum and [Mr H]
In the course of a subsequent text message exchange, the father sent a threatening text message to Ms K that included the words: “… and ill kill me self after ill kill your bush mum and Mr H and you all australian tv and the word they see how ill kill yours . Go to polis go to court jest allah he no why I do that”.
In addition, both the mother and Ms K allege that Mr Magid has sexually assaulted Ms K. Ms K also asserts that Mr Magid sexually assaulted a friend of hers in 2006 or 2007. In his Affidavit filed on 3 May 2017, Mr Magid emphatically denied that any such misconduct had occurred.
Ms K’s evidence in relation to that allegation is set out at paragraphs 89 to 101 of her Affidavit. In particular, Ms K refers to an incident that occurred in or around 2005, when she was approximately 10 or 11 years old. Ms K also refers to incidents of sexual assault perpetrated against her by Mr Magid’s son-in-law, “Mr BB”, of which she says Mr Magid had knowledge.
Those incidents occurred more than 10 years ago and were not investigated by law enforcement authorities. The evidence provided by Ms K is less than comprehensive. This is entirely understandable in circumstances where the events are said to have occurred when she was 10 or 11 years old.
While the Court takes allegations of family violence, including, in this case, allegations of sexual abuse against a child, extremely seriously, the evidence is such that it is not possible to make findings against Mr Magid. Specifically, given the seriousness of those allegations, the evidence in these proceedings does not meet the standard required by s 140(2) of the Evidence Act 1995 (Cth). I am, therefore, unable to determine, on the balance of probabilities, that Mr Magid sexually assaulted Ms K. That is not to say that I dismiss the evidence of Ms K as being untrue.
Apart from the risks associated with the father becoming aware of the location of her residence, a secondary concern raised by the mother, in terms of the children spending time with Mr Magid, was the prospect of him making derogatory comments about her to the children.
The mother was not challenged on her evidence that, in the period since she separated from the father, Mr Magid has sent messages to the maternal grandfather which have, in turn, been forwarded to her. Those messages are attached to the mother’s Affidavit as Annexure “G”. The messages are written in Arabic, however, the mother was not challenged on her evidence that the messages contain insulting references to her and her family, including the use of words: “slut”, “pimps”, “drug dealers” and “infidels”.
The mother was also not challenged on her evidence that, on one occasion, Mr Magid posted a WhatsApp status written in Arabic (Annexure “H” to her Affidavit) that was to the effect of:
Congratulations for [CC] (my family/tribes title), you married your daughter to a man for mutah (contractual marriage for a short period of time) and her mother told her to leave the kids. The Father of [Mr Alza] made you wear the dress of honour but your personality is like tainted/slutty since the days of [Country F].
The mother was also not challenged on her evidence that, on or about 15 April 2017, Mr Magid posted a further WhatsApp status (Annexure “I” to her Affidavit) that was to the effect of:
[Mr DD] (my father) talks about honour like a slap. He is a dayouth (pimp/good for nothing) hiding his head and his house is full of infidel bastards.
I note that Mr Magid has sent and posted these messages in Arabic. If Mr Magid were to spend supervised time with D and E, it would not be possible for a supervisor who did not speak Arabic to monitor any communication between Mr Magid and D and E that took place in Arabic, such as to prevent Mr Magid making any disparaging comments concerning the mother. This secondary concern, however, pales in comparison to the primary concern regarding D and E spending time with Mr Magid, being the possibility of the children’s place of residence being disclosed to the father.
Further, these communications on the part of Mr Magid further satisfy me that D and E should not spend time with him because, as a result of Mr Magid’s poor opinion of the mother, there is an unacceptable risk that he will provide information to the father concerning the location of the mother’s residence.
Whether any family violence order has or continues to apply
Section 60CC(3)(k) requires the Court to consider any family violence order that applies or has applied involving the children or a member of their family and if applicable, taking into account a number of stated matters.
In response to the incident that occurred in or about May 2003, to which I have referred above, Police attended the mother and the father’s home and after taking a statement from the mother, the Police arrested the father and an interim AVO was issued against the father for her protection. The mother was not challenged on her evidence that, after the involvement of religious leaders from the Iraqi community, she withdrew the statement that she had made to the Police and that subsequently, the application by the Police for a final AVO was discontinued.
The mother was also not challenged on her evidence that, after the incident that occurred in late-2008, when the father threw a glass bottle through the window of the bedroom where she was hiding from him at their residence, an AVO was issued against the father for her protection.
Further, as a result of the incident that occurred on 17 July 2012, when the father struck the mother’s head, which caused an injury that required 36 stitches, the father was convicted of assault occasioning actual bodily harm on 10 October 2012. This resulted in a three-year bond being imposed on the father.
On 10 December 2012, a final AVO was issued against the father for the protection of the mother, for a period of two years.
On 5 June 2014, the father was charged with common assault, contravention of an AVO and reckless wounding. An AVO was issued against the father for the protection of the mother, Ms K, D and E for a period of two years. Notably, an AVO was already in place when that violent incident occurred.
Counsel for the ICL gave oral evidence that she is not aware of the existence of a current AVO.
Effect of change
Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents, any other child or other person (including any grandparent or other relative) with whom the children have been living.
I will make orders as sought by the ICL. Those orders will not involve a significant change for D, E or C, who have each been living with the mother and Mr Magid, respectively, for some time now.
Further, given that D and E have not spent time with Mr Magid since about November 2013, the implementation of orders sought by the ICL that they not spend time with him will not result in any change of circumstances.
Practical difficulty of implementation
Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of children spending time with and communicating with a parent and whether that will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
As these orders do not provide for contact to occur, this consideration is not relevant.
Avoiding further proceedings
Section 60CC(3)(l) requires the Court to consider 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 children.
The orders that I make are final orders and will hopefully bring an end to this litigation, which has, no doubt, been stressful for the parties and the children.
Other relevant matters
Section 60CC(3)(m) requires the Court to consider any other facts or circumstances the Court considers relevant.
There are no other relevant considerations.
Orders
For these reasons, I make orders as sought by the ICL.
I certify that the preceding two hundred and nineteen (219) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 11 September 2018.
Associate:
Date: 11 September 2018
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