Arazi and Barakat

[2013] FCCA 441

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARAZI & BARAKAT [2013] FCCA 441

Catchwords:
FAMILY LAW – Parenting – whether father should spend time with parties’ children, a boy aged 14 and a girl aged 9 – father's mental health – Court Expert expressing opinion father is likely “suffering from a paranoid disorder or a delusional illness” – father's expert agreeing with Court Expert’s opinion –mother alleging child abuse and family violence by father and that children fearful of father – Court Expert expressing opinion children at risk of harm with father.

Legislation:  
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65DAB

Rice & Asplund, (1978) 6 Fam LR 570, (1979) FLC ¶90-725
Goode v Goode, [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296
MRR & GR, [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC ¶93-424

Applicant: MR ARAZI

Respondent: MS BARAKAT

File Number: PAC 465 of 2008

Judgment of: Judge Halligan

Hearing dates: 10, 11, 12, 13 October 2011, 6, 7, 8 August 2012, 6, 7, 8, 9 May 2013

Date of Last Submission: 9 May 2013

Delivered at: Parramatta

Delivered on: 21 June 2013

REPRESENTATION

Counsel for the Applicant: Self Represented

Counsel for the Respondent: Mr Lee

Solicitors for the Respondent: CBD Legal

Counsel for the Independent Children’s Lawyer: Ms Kennedy

Solicitors for the Independent Children’s Lawyer: Tiyce & Lawyers

ORDERS

1. All prior orders in relation to the children [X] born [in] 1999 and [Y] born [in] 2003, including the orders of this Court made on 14 April 2010, are discharged.

2. The mother shall have sole parental responsibility for the children.

3. The children shall live with the mother.

4. The mother may change the last name of each of the children to Barakat.

5. The father shall not spend time with the children.

6. The father may communicate with each of the children by forwarding cards or letters on no more than three occasions per year to each child, to be sent by ordinary prepaid post to the mother, and the mother shall ensure such communications are given to the children unless their contents are critical of the mother, refer to the children being told lies about the father, suggest the children are in danger with the mother, or in the mother's opinion are otherwise inappropriate and likely to cause distress or alarm to the children.

7. Within 14 days, the mother shall provide the father with an address to which he may send written communications to the children under the preceding order.

8. Each of the parties is restrained from taking or sending or attempting to take or send the children [X], a male born [in] 1999, and [Y], a female born [in] 2003, or either of them, out of Australia.

9. The Australian Federal Police are requested to place the names of each of the children on the Watch List in force at all points of international arrival and departure in Australia and to maintain the children’s names of the Watch List until otherwise ordered by the Court or each child turns 18, whichever happens first.

10. The father is restrained from contacting or communicating with the mother or with either of the children, otherwise than in accordance with these orders.

11. The father is restrained from approaching-

    (a)the mother or either of the children;

    (b)the place of residence of the mother and the children from time to time;

    (c)the school attended by either of the children from time to time; and

    (d)the venue of any extra curricular activity in which the mother or either of the children may be involved.

12. The preceding order is an order made pursuant to s.68B, Family Law Act 1975, for the personal protection of the mother and each of the children, to which the power of arrest without warrant under s.68C, Family Law Act 1975, applies.

13. The mother may provide a copy of Professor Q’s report and of these orders to any health professional treating either of the children.

14. The mother shall promptly notify the father by ordinary prepaid post of any illness or injury suffered by either of the children that requires treatment at or admission to a hospital, and shall promptly notify him by ordinary prepaid post of the child’s progress in recovering from such illness or injury.

15. For the purposes of the preceding order, the father shall notify the mother by ordinary prepaid post within 7 days of any change in his residential or other address to which he wishes notification under the preceding order to be sent.

16. Otherwise, all outstanding applications are dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PARRAMATTA

PAC 465 of 2008

MR ARAZI

Applicant

And

MS BARAKAT

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are contested parenting proceedings under the Family Law Act 1975 concerning two children, 14 year old [X] and 9 year old [Y].  The children’s father is the applicant and their mother is the respondent.  The children’s interests are represented by an Independent Children's Lawyer.

2. The father conducted his case without a lawyer, and needed the assistance of an interpreter, which was provided to him.

3. What the father sought was at times difficult to determine.  It changed several times during the hearing.  As best I understood him, the father ultimately proposed that the children remain living with the mother but for a limited time, the duration of which he did not specify, and that he resume an involvement with the children by-

   a)at first writing letters to the children;

   b)having telephone communication with the children once a fortnight for a period of five or six months during which time he would attempt to relocate to Sydney;

   c)then seeing the children and the children seeing him “from a distance” in a park or other suitable public place;

   d)then seeing the children after school every three days for one and a half to two months;

   e)then ringing the children and inviting them to have a meal with him or go on an outing with him, with this arrangement to continue for a few years with the hope the children would change their views of him.

4. In addition, the father sought orders-

   a)that the parents have equal shared parental responsibility;

   b)restraining the mother from changing the children’s last name;

   c)restraining the children from leaving Australia;

   d)that if the mother wished to travel overseas, the children be left in his care;

   e)that neither party denigrate the other in the children’s presence “or provoke the children to hate the other party”;

   f)that the mother not send money to Iraq;

   g)that the mother notify the father if anything (presumably adverse) happens to the children; and

   h)that he have telephone and internet video communication with the children.

5. The father also sought an order that “any AVO’s taken should not include (the) children”, which I explained to the father was an order this court could not make.  Whether to make an AVO, the terms of any AVO and who should be protected by any AVO are matters for the court that determines an application for an AVO.  In New South Wales, it is the Local Court, not this court, that determines such matters, and this Court has no power to control or direct the Local Court in the exercise of its jurisdiction.

6. The mother proposed that she have sole parental responsibility for the children, that the children live with her, that the father spend no time with the children, that she be permitted to change the children’s last name to Barakat, and that the children’s names be removed from the Airport Watch List.  However, the mother did not seek discharge of the current order restraining removal of the children from Australia, nor did she seek an order specifically permitting her to take the children out of Australia, although she clearly wished to be able to do so without the father's consent.

7. In addition, the mother sought an injunction restraining the father from-

   a)contacting or communicating with the children and the mother other than by email supervised by the mother; and

   b)from approaching any home where the mother or children may reside from time to time, any place of education including child care facilities and any place of extra-curricular activity that the children or the mother may attend from time to time.

8. The mother sought that the injunction be expressed as an order made pursuant to s.68B of the Family Law Act 1975 for the personal protection of the children, to which the power of arrest without warrant under s.68C attached.

9. The Independent Children's Lawyer proposed that-

   a)the children live with the mother;

   b)the mother have sole parental responsibility for the children;

   c)there be no order as to time to be spent between the father and the children;

   d)the mother be authorised to change the children’s names as she sought;

   e)the father be restrained from contacting or approaching the children and the mother at their home, place of school and venue of any extracurricular activity the children and the mother may be involved in from time to time, such restraint to be expressed as an order under s.68B for the personal protection of each of the children and the mother to which the power of arrest without warrant under s.68C attached;

   f)within seven days the mother advise the father of an address to which he be permitted to forward communications to the children on two occasions per year, and the mother be entitled to assess the appropriateness of any such communication prior to it being provided to the children, and in the event the mother considers a communication is inappropriate she be permitted not to provide it to the children;

   g)that the mother be permitted to provide a copy of the Court Expert’s report prepared in the matter and the orders of the court to any treating professional for the children; and

   h)that any future application by the father should be accompanied by an affidavit sworn by a “health professional” who has been treating the father deposing to being aware of the Court Expert’s recommendations and providing details of the treatment undertaken by the father and his compliance with any recommended treatment regime, and a prognosis, if any.

10. I indicated that I was not prepared to make the final order sought by the Independent Children's Lawyer, as I could not restrict the father's right to commence further proceedings in the manner proposed.  I indicated that cases such as Rice & Asplund, (1978) 6 Fam LR 570, (1979) FLC ¶90-725, provided protection against any attempt to re-litigate issues determined by these proceedings on the same facts.

Background

1. The father is aged 49 (born [in] 1964) and the mother is aged 41 (born [in] 1971).  The parties married [in] 1997 and finally separated on 10 January 2005, having separated for a time in 2000. They were divorced with effect from 13 April 2008.

2. The parties’ son, [X], was born [in] 1999 and their daughter, [Y], was born [in] 2003.

3. The father has remarried.  There is no evidence from the father's present wife.  She has never met the children.

4. In 2008, the mother formally changed her last name from her married name to her family name.

5. Interim parenting orders were made by consent on 3 April 2009 providing for the children to live with the mother and spend supervised time with the father at the [omitted] Children’s Contact Service on each alternate Saturday for one hour on the first two occasions and for three hours on each other occasion, subject to the availability of the contact service.  These orders included a requirement that the father only speak to the children in English while spending time with them, and that neither party denigrate the other in the presence or hearing of the children.  The first occasion of supervised time at the contact centre occurred on 3 May 2009.  The supervised time ceased after

   
   

   30 January 2010, which was the last time the father saw the children.

6. On 14 April 2010, the court by consent appointed Professor Q as court expert to prepare a report for the assistance of the court in deciding the matter.  Professor Q is an Associate Professor in psychiatry at [university omitted] and a consultant psychiatrist.  The orders of 14 April 2010 also provided by consent that pending further order both parties be restrained from removing the children from Australia.

7. On 29 March 2012, an AVO was made by [omitted] Local Court against the father for the protection of the mother and both of the children containing the usual statutory provisions and in addition restraining the father from going within 100 metres of the premises at which the mother or the children reside or work, and from approaching or contacting the mother or the children by any means whatsoever except through his legal representatives.  The order was for a period of 12 months, and has now expired.  The father had no legal representative when that order was made, and has had no legal representative in these proceedings since March 2011.  The father was not present when that order was made, but acknowledged in cross-examination that he was aware of it.

The father's mental health

1. The principal issue in this matter has been the father's mental health.  While the matters on which Professor Q was ordered to report did not include specific reference to the mental health of either parent, she was appointed because the mother raised issues about the father's mental health.

2. Professor Q scheduled appointments to see the parties on 20 July 2010.  For reasons that are not entirely clear, only the father attended.  Having interviewed the father only, Professor Q provided an interim report to the court in which she expressed the opinion that it seemed likely that the father was suffering from a paranoid disorder or a delusional illness such as paranoid schizophrenia.  She expressed the opinion that the father’s affective state was brittle, and he was easily aroused by what appeared to be delusional thoughts.  She reported that the father was intensely preoccupied with his concerns about the mother's sexual behaviour, and it was very difficult to deflect him from it.  She expressed the opinion that the father had delusions of reference, such as knowing from the look on the face of the mother's solicitor that he had sexual relations with the mother.  She expressed the view that the sexual ideas relating particularly to the mother and involving the rape of the children seem most likely to be delusional ideas.

3. Professor Q recommended that her assessment proceed further only after the father’s mental state had been more fully assessed and stabilised by admission to a mental health unit.  Professor Q said in cross-examination that the failure to interview the mother and the children in no way affected the confidence with which she expressed her opinions about the father's mental health.

4. The father has not been admitted to a mental health unit.  He has not had the sort of mental state assessment Professor Q recommended, which would require observation of the father over a period of time.

5. The father has never accepted Professor Q’s opinions or recommendations.

6. After the release of Professor Q’s report, and at a time when the father had legal representation, it was indicated that the father intended seeking a referral from his general practitioner to a psychiatrist. On

   
   

   20 August 2010, final hearing dates were vacated for a second time and the father’s solicitors were given leave to provide a copy of

   
   

   Professor Q’s report to the father’s general practitioner and to any psychiatrist or psychologist to whom the father was referred.

7. The father subsequently saw a general practitioner, Dr B, and a psychiatrist, Dr P.  However, the father did not rely on any evidence from either doctor, and ultimately, on the fourth day of the hearing, objected to the mother's solicitors and the Independent Children's Lawyer forensically using documents produced by both doctors under subpoenas issued by the father's then former solicitors.  His objection seemed to me to only be sustainable on the basis of a claim of client legal privilege.  It became unnecessary to rule on the father's inferred claim of privilege as ultimately neither the mother's counsel nor counsel for the Independent Children's Lawyer sought to make any forensic use of the material produced by Drs B and P.

8. However, the absence of any explanation from the father about why, having seen a psychiatrist in these circumstances, he did not call any evidence from the psychiatrist warrants my drawing an inference adverse to the father that the evidence of Dr P would not have assisted his case.  However, my determination of this matter is not reliant on any such inference, as will soon become apparent.

9. On the resumption of the hearing in August 2012, the father sought to tender a letter dated 23 February 2012 from Dr C, a consultant psychiatrist, as to his mental health. The mother's counsel objected to the admission of this unsworn evidence, but the objection was withdrawn on my indicating I was prepared to provisionally admit the letter into evidence but would give it no weight unless its author was made available for cross-examination, which I indicated I would permit by phone, and adopted the report under oath or affirmation after having been provided with a copy of this court’s rules as to expert witnesses and the Federal Court’s practice direction guidelines for expert witnesses (see r.15.07, Federal Circuit Court Rules 2001).  Arrangements for Dr C to give evidence were not made until during the third and final round of the hearing in May 2013.  He gave evidence on the last day of the hearing after being provided with a copy of Professor Q’s report.

10. Dr C said in his letter of 23 February 2012 that he was “confident (the father) doesn’t have a mental illness or psychiatric disorder”. In affirming the correctness of the opinions expressed in his letter of

    
    

    23 February 2012, Dr C was careful to indicate that he believed them to be true at the time of writing that letter.  However, after seeing Professor Q’s report, and accepting the accuracy of her description of her interview with the father as set out in that report, Dr C said he now considered that the father had a significant mental illness.  He said it was clear in his mind the father suffered one of three possible conditions, namely delusional disorder with erotic manic theme, paranoid schizophrenia, and/or paranoid personality disorder.  He said he agreed with Professor Q’s opinion as to the father suffering a mental illness and he agreed with Professor Q’s recommended that it would be ideal for the father to be in a psychiatric hospital for observation and treatment, although he volunteered that he doubted the father was ill enough to be involuntarily admitted.

11. Dr C said that what caused him to change his opinion was that some of the father's statements as reported by Professor Q are clearly psychotic or verging on the psychotic.

12. Between seeing Dr P and Dr C, the father saw another consultant psychiatrist, Dr H.  A report from Dr H was tendered into evidence on behalf of the Independent Children's Lawyer.  The father objected to the letter coming into evidence as he said he disagreed with it.  Before deciding whether to admit the letter, I asked the father why he saw

    
    

    Dr H, in light of what occurred when Dr P’s records were sought to be forensically used.  The father did not answer my enquiries, despite my repeating them, instead continuing to vehemently reject that doctor’s opinion.  As it did not appear on the face of the doctor’s letter that he had been seen for the purpose of obtaining evidence for this hearing, I admitted the letter from Dr H, dated 5 December 2011, into evidence.

1. In that letter, being apparently a report back to a referring general practitioner written after having seen the father once, Dr H expressed the opinion that matters the father raised with him “might be delusional in type, however that matter required to be clarified from a couple of agencies that included child protection service, police records in the past as well as any court orders which was (sic) running in the past to find out the truth behind his allegation”.

2. In cross-examination, Professor Q said that, assuming the father continued to make the allegations that were the basis of the opinions expressed in her report, she would maintain those opinions now despite the long time since she had seen the father.  She said there was a consistency in his presentation to her in July 2011, his presentation as reported by Dr H in December 2011, and in the allegations he maintained throughout the hearing before me.  She said she doubted there was a basis in reality for his ideas and it is likely he is suffering a delusional illness.  She said that she considered there is a risk of harm to the children from the father in such a state.  She said that included a risk of psychological harm.  I note the evidence of the mother, which I accept, that the father on one occasion threatened to kill her and the children.

3. Professor Q expressed the opinion in cross-examination that there may be some benefit to the children in seeing their father, that benefit being knowing who their father was, but she said any time would need to be under safe and supervised conditions and for a limited time. When asked whether that opinion would change if it were the fact that the children’s time with the father at the contact centre was not pleasant, the children had not seen the father since early 2010, [X] had a memory of being taken to the doctor by the father to be tested to see if he had been sexually abused, [Y] had a memory of being taken to have a DNA test to establish whether the father was her biological father, and [Y] suffered nightmares featuring the father for about 18 months up to August 2012, Professor Q was of the opinion that it seemed unlikely the children would derive any benefit from the limited contact she otherwise considered appropriate.  Professor Q further said that if the children did not wish to have their father's name, as the mother alleged, this was a relevant consideration as it indicated the children were seeking to break all contact with the father.  Assuming the mother's report was true, she said this was a strong indication of the children’s views and was a compelling reason to stop all time between the children and the father.

4. I am satisfied that each of the matters Professor Q was asked to assume and which in her opinion were compelling reasons to stop all time between the father and the children has been proved.  I will address each of the matters in turn and give my reasons for being so satisfied.

Children’s supervised time with the father

1. The records of the contact centre indicate that on the supervised visit on 3 May 2009-

   a)The children were not happy to see the father;

   b)[X], then almost ten, said to the supervisor “I am really nervous now” when the father arrived, and later told the supervisor “I’m scared”;

   c)Both children remained subdued and avoided eye contact and did not communicate with the father;

   d)At one point the father told the children “I forgive you, it’s alright.  Whatever you’ve been told it’s not true, believe me”, to which [X] responded with his head down, mumbling “I haven’t been told anything”; and

   e)The children did not engage with the father.

2. At the father's supervised time on 21 November 2009-

   a)[X] said to the father “I don’t want to see you.  Why do you come here?”;

   b)When the father asked [X] if the child was scared of him, [X] said “You hurt me”; and

   c)Both children remained distant from the father and generally unresponsive to his attempts to engage with them or to talk with them until the second half of the two hour session, when both children played games with the father and smiled on occasions.  However, [X] did not engage in conversation with the father, while [Y] only engaged in conversation with him in the last quarter hour of the two hour visit.

3. On 30 January 2010-

   a)The children arrived for the supervised time with the father looking very sad;

   b)[X] said he did not want to be there and that he did not want to talk to the father;

   c)When the supervisor suggested to [X] that he talk to the father and tell him what was worrying him, [X] repeated that he did not want to talk to the father;

   d)When the father arrived and attempted to engage with the children, [X] began crying, to which the father responded by saying it was all lies from the children’s mother;

   e)The supervisor then invited the child to speak and asked the father to just listen.  [X] said that the father hit him when he was little and used to hide under the bed trying to catch his mother with her uncle, but it was not true.  The father told [X] he was in danger with his mother and [X] replied “This is not true”.  Both the father and [X] were speaking with raised voices, and [Y] looked up and said “Just stop”, then began crying.  [X] too was crying, with his head in his hands; and

   f)There was no further interaction between the children and the father for the remainder of that visit, despite various attempts by the supervisor to encourage appropriate interaction.

4. The father objected to the admission into evidence of the contact centre records of these visits because he said they were untrue.  However he advanced no reason why staff at the contact centre would fabricate such consistent records over three different dates.  I am satisfied the records are a fair and accurate record of those visits, and I am satisfied that the children's supervised time with the father at the contact centre was not a pleasant experience for them, as was put to Professor Q.

The children’s time with the father since early 2010

1. There is no issue that the father has spent no time with the children since early 2010, as was put to Professor Q.

[X] being taken for medical test

1. The father told the mother and [X] he was taking [X] to tennis, but instead took him to a doctor and asked the doctor to examine the child to determine whether he had been sexually abused.  There is no issue about this.  For most of the hearing before me, the father was seeking an order that both children be medically examined to determine whether either had been sexually abused, although he abandoned that part of his application in final submissions.

2. The mother said [X] remembered this incident and remained upset about it.  I am not satisfied her credit was shaken in cross-examination and I accept her evidence.  I am satisfied [X] does have a memory of deceptively being taken to the doctor to be examined for possible sexual abuse, as was put to Professor Q.  I am satisfied this was a distressing experience for [X].

[Y] being taken for DNA test

1. There is no issue [Y] was subjected to DNA parentage testing to establish whether the father was her biological father.  The father's suspicions he may not have been [Y]’s biological father apparently stemmed from his belief that the mother had a sexual relationship with her uncle.  I accept the mother's evidence that [Y] remembers this and is upset with her father about it.  Whether her recollection of this event is unaided by the mother I am unable to say, noting she was no more than four years old when the DNA test was done in 2007.  Nonetheless, I accept it is a fact that she knows this occurred, as was put to

   
   

   Professor Q.

[Y]’s nightmares

1. I accept the mother's evidence that for about 18 months up to

   
   

   August 2012, [Y] had nightmares in which the father featured in a distressing way for the child, as was put to Professor Q.

Children’s views about their last name

1. I also accept the mother's evidence that the children do not wish to retain their father's last name, as was put to Professor Q. I accept the mother's evidence that she does not speak ill of the father, and explains his absence to the children by telling them he is sick.

Father's allegations on which Court Expert’s opinion based

1. The father's case was at all times based on allegations that the mother had persistently been extremely promiscuous, that she and her uncle had sexually abused both children, and that the children themselves had engaged in sex at a very early age. It was these very allegations, repeated to Professor Q, that lead to her and Dr C expressing the opinion that the father suffered a serious mental disorder.

2. There is no issue about the accuracy of Professor Q’s report of her interview with the father.  It is precisely what the father has asserted as the basis of his case, and which he sought to put to the mother in cross-examination, although he made further allegations to Professor Q that he did not make in his affidavit evidence, despite them allegedly occurring at the time of other incidents he did raise in his evidence.

3. I am satisfied that the father honestly believes what he alleges against the mother to be true.  Although not put by the father, I am satisfied that if there was any evidence on which the father's beliefs might be said to be rationally held, it would be open to him to argue that little or no weight should be placed on the opinions of Professor Q and Dr C, on the basis that a rationally held belief could not be said to be a delusion in layman’s terms, and thus the factual basis for an expert opinion that he may be suffering a delusional mental disorder is lacking.  Put another way, it might be argued that unless the court was satisfied there was no rational basis for the father's beliefs, it ought not place weight on the opinions of Professor Q and Dr C about his mental health.  It may be argued that any rational basis for such beliefs, including a basis falling short of evidence probative of the facts he believes admissible in these proceedings, would be sufficient to significantly reduce the weight that ought to be placed on their opinions.

4. I will therefore address whether, on an assessment of the evidence, there appears to be any rational basis for the father’s beliefs.

5. The father's evidence included assertions that-

   a)[X] was sexually abused by the mother three times in front of his eyes.  He gave no evidence of what he said he saw.

   b)After the parties were separated for two years, one day he took the children for a walk and the children told him everything.  He gave no evidence of what the children told him.

   c)He was told when in Iraq that the mother had been married before and was abused by her brothers and uncles.  He did not disclose who told him.

   d)When in Iraq, he twice saw the mother naked having sex with her two brothers at the same time in the presence of [Y], who the mother said was about 13 months old at the time of the relevant family visit to Iraq.

   e)Before the family went to Iraq, the mother had sexual relations with his friends, more than eleven men, most of whom were his best friends including family doctors, the green grocer whose shop the mother patronised, the butcher whose butchery the mother patronised, and the real estate agent through whom the mother rented accommodation.  During cross-examination of the mother, the father asserted that the mother knew more than 50 families and had sex with all of them.  He also asserted that if the mother met a man three times, she had sex with him.

   f)The father also alleged that the mother had sex with her then lawyer in the lawyer’s office before coming to court on the second or third time the matter was before the court.  The basis for his belief was that the mother and her lawyer arrived at court an hour late within a minute of each other, and the lawyer was flushed, perspiring and shaking.

   g)After the mother’s “cousin” came to live with the parties, the father found the “cousin” with the mother sexually more than seven times.  During the hearing the father asserted it was the mother's uncle who lived with the parties, that is was the mother's uncle who was sleeping with the mother, and that the uncle was also sleeping with [Y].  The mother said the person named by the father as her cousin is in fact her uncle.  She denied the father's assertions that she was now married to her uncle.

   h)While travelling overseas alone, he was told by [X] that he, the mother, [Y] and the “cousin” were all having a bath together naked.

   i)When he was in Iraq he found out that the mother was abused by her uncle when she was seven.  This is the uncle with whom he alleged the mother was sleeping in Australia, and who he alleged was sleeping with [Y], and to whom he alleged she was now married.

   j)The mother organised with two named doctors, being the doctors he alleged the mother had slept with, to kill him.  He said one of those doctors prescribed him Epilim, which he stopped taking when he found out the doctor told him not to tell anyone about the tablets.

   k)On 12 August 2008 he took photos of the mother and the shopkeeper with whom the father alleged the mother had a sexual relationship, when the father asserted the mother went with [Y] to discuss her relationship with him at his shop.  Why he thought the mother was having a sexual relationship with this man was never explained, nor did the father offer any explanation why be believed the mother went to discuss the relationship with him in his shop, rather than to buy something.  The father's actions in following the mother and taking photos of her was in breach of an AVO in force at the time.  On the father's own evidence, even after the AVO was explained to the father by the police with the assistance of an interpreter, on 10 September 2008 he followed [X] from school to the pool during school hours, again in breach of the AVO.  On neither occasion was the father charged due to his asserted failure to understand the AVO.

6. Professor Q reported that the father told her that when the family visited Iraq, the visit during which he allegedly saw the mother naked with her brothers, that “her brother was with her mother and with her grandmother and her uncle was with her mother”. The father confirmed that he meant they were having sexual relations.  He did not mention this in his affidavit evidence.  The accuracy of Professor Q’s report was not challenged, and I accept it as an accurate report of her interview with him.

7. The mother denied all the father's allegations.  She said that the father obtained a religious divorce from her when the family was in Iraq for a visit when [Y] was about 13 months old, because he alleged the mother was “sleeping” with her brothers.  She agreed her uncle came to live with the parties in Australia, but moved out after the father accused the uncle of “sleeping” with her and with [Y].

8. The father was cross-examined about some of his allegations of having seen the mother engaged in sexual activity.  He was questioned about his evidence of seeing the mother sexually abuse [X] “in front of my eyes 3 times”.  When asked what he saw, he failed to respond to the question.  At no time has the father said what he saw that he said amounted to sexual abuse of [X] by his mother three times, even when specifically asked in cross-examination to give that evidence.

9. The father said he thought the mother sexually abusing [X] three times was normal.  When challenged about this in cross-examination, the father's responses were inconsistent and contradictory.

10. When cross-examined about his evidence that in Iraq he saw the mother naked having sexual intercourse with her two brothers on two occasions in front of [Y], he said the mother was not naked on either occasion, but was wearing a robe which she was holding up.  On the first occasion, he said he saw the mother with only one brother not two, and that [Y] was in another room and could not see the mother from where she was.  On the second occasion, he said the mother was holding [Y] and at the same time holding up her robe and that one brother was in front of her and one was behind with their shorts down.  He said when they saw him the mother let her robe down and the brothers pulled their shorts up.  He said nothing to the mother at the time because, he said, he was afraid of the mother's family.  He admitted there was no sexual intercourse in the first incident, but maintained there was in the second.

11. When questioned about his allegation of the mother having sexual relations with more than eleven men, he said he did not see it with his own eyes, but it was true, it was what he imagined.  He said he was always watching the mother, and she went to “bad places and does bad things”, he had seen it, even with [X].  Despite agreeing that despite following the mother, he never saw her having sexual relations with any man, he nonetheless said she went into a room in the shop with the man there and did the same with the butcher.

12. When cross-examined about his allegation that after the mother's uncle came to live with them, which he said was before the family visited Iraq in 2004, he caught the uncle with the mother sexually seven times, he said the first time was before [Y] was born, and he found the mother and the uncle watching something “sexual” on the computer.  Both were clothed, but he said he saw something “immoral” on the computer.  He did not say what he saw on the computer.

13. He said another occasion was when he visited after the parties had separated and the uncle was living with the mother.  He retained a key to the premises and entered.  He said the mother and the uncle were sitting on the sofa and the mother handed him a bag of rubbish and told him to put it outside.  He said the mother would not let him see what was happening.  He said he went out and came back quickly and saw lipstick on the uncle’s face, “and it sounded like they had just finished their sexual intercourse”.  He conceded both the mother and the uncle were dressed normally.  He agreed he saw no sexual activity between the mother and the uncle.  Despite being repeatedly invited to relate even one incident when the father actually saw the mother and the uncle having sexual relations, the father was unable to do so.  However, he maintained his assertion that the mother and the uncle not only had sexual relations together, but that they both sexually abused both of the children.

14. There was no credible evidence that the mother had sexual relations with any of the multitude of men the father alleged she had sexual relations with.  There was no credible evidence that the children had ever been sexually abused.  When challenged about his allegations of having seen the mother engaged in sexual activity on numerous occasions with various men, it transpired that he had not in fact seen any such thing.  His evidence of what he allegedly saw between the mother and her brothers in Iraq was inconsistent and contradictory. 

15. Having carefully considered all the evidence, I am satisfied there is no rational basis for the father's beliefs about the mother's sexual conduct, or about the children being abused.  I am satisfied that the father’s allegations are baseless, although he firmly believes them to be true.

16. To the extent that the opinions of Professor Q and Dr C depend on the father's beliefs about the mother's promiscuity and the children’s sexual abuse are a delusion in the ordinary sense of that word, that is, that they are false beliefs or opinions, I am satisfied that foundation for those opinions in fact exists.

17. I therefore accept their evidence and their opinions and find that it is more likely than not that the father suffers from a paranoid disorder or a delusional illness such as paranoid schizophrenia. I also accept Professor Q’s opinion that the father poses a risk to the children by reason of that condition, particularly having regard to the evidence of his behaviour towards the mother and the children, which I will now traverse in greater detail.

The mother's allegations of family violence and child abuse

1. The mother made various allegations of family violence and child abuse against the father.

2. These proceedings commenced before the commencement of Schedule 1 of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2012. Hence, some of the amendments to the Family Law Act effected by that Act do not apply, and the provisions of the Family Law Act as in force immediately before the commencement of Schedule 1 on 7 June 2012 continue to apply. The former provisions that continue to apply include the definitions of family violence and abuse.

3. For these proceedings, family violence is defined as follows-

   “family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

   Note:     A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.”

4. Abuse is defined as follows-

   “abuse, in relation to a child, means:

   (a)     an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or

   (b)     a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first‑mentioned person or the other person, and where there is unequal power in the relationship between the child and the first‑mentioned person.”

5. I will deal with each of the mother's allegations and make findings of fact and whether the accepted evidence establishes family violence and/or child abuse.  In doing so, I am satisfied the mother is a reliable witness, and I accept her evidence.

6. On an unspecified occasion but after the parties had moved from Melbourne to Sydney, during an argument between the mother and the father, the father hit the mother with his open hand, dragged her by her hair, threw objects at her, and verbally denigrated her, calling her “bitch” and “slut”.  He damaged items in the home, including the TV, Video, microwave and fridge.  I am satisfied this behaviour reasonably caused the mother to be fearful for her safety, and that this was an incident of family violence by the father against the mother.

7. In 2007, which was two years after separation, the father asked to take [X] with him to play tennis, but instead took him to a doctor and asked him to examine the child to determine whether the child had slept with the mother.  When the father and child returned home, the mother realised [X] was upset and asked him in front of the father what happened.  When the child did not tell her, she took him into another room and asked him again what happened.  When he began to speak, the father entered the room and began hitting [X], who wet himself.  I am satisfied this behaviour reasonably caused both the mother and [X] to fear for their safety, and that this was an incident of family violence by the father against the mother and [X].  I am also satisfied the father’s striking [X] in circumstances sufficient to cause him to wet himself more likely than not was an assault by the father on [X], and hence I am satisfied this was an incident of abuse by the father of the child [X].

8. On another occasion in 2007, the mother returned home after being out with the children and found the father hiding under her bed.  She was very scared, and when she tried to scream, the father jumped up and physically restrained her from screaming.  I am satisfied the father's actions reasonably caused the mother to fear for her safety, and that this was an incident of family violence by the father against the mother.

9. Soon after the preceding incident, [Y] found the father hiding behind the TV unit.  The child was very frightened, not realising at first that it was the father.  In light of the earlier incidents proven against the father when [Y] was also present, I am satisfied the father's actions reasonably caused [Y] to fear for her safety or wellbeing, and hence I am satisfied this was an incident of family violence by the father against [Y].

10. In 2008, while the mother and children were in Iraq, the father rang her and threatened to kill her, the children, her uncle and the family doctors.  The mother took the threat seriously and was frightened.  On arrival back at Sydney airport, she reported this to the Federal Police, who escorted her and the children to her car, and she went straight to [omitted] police station to seek protection.  That day, a provisional

    
    

    ex parte AVO was made. On 4 June 2008, a final AVO was made for a period of three years against the father for the protection of the mother and the children, including a restraint on the father approaching or contacting the mother or the children by any means except through his legal representative, or as agreed in writing, or as permitted by an order under the Family Law Act for the purpose of counselling, conciliation or mediation. I am satisfied the father's threat to kill the mother and the children reasonably caused the mother to fear for the safety of herself and both the children, and that this was an incident of family violence by the father against the mother.

11. On 12 August 2008, despite the AVO, the father followed the mother and [Y] and photographed them.  The mother reported this to police, the father was detained, but he was not charged with a breach of the AVO.  Given the prior history of the father's actions and threats, I am satisfied this behaviour by the father reasonably caused the mother to fear for the safety of herself and [Y], and amounted to family violence by the father against the mother.

12. On 5 September 2008, when [X]’s class was taken by a teacher to a swimming pool nearby, the father approached the teacher and enquired about [X]’s progress at school.  While the father did not make any contact with [X], the teacher reported [X] as being “visibly shaken” and “obviously scared”.  On the walk back to the school, the father approached [X] when the class group stopped at traffic lights and attempted to kiss him on the cheek, and the teacher interposed herself between the father and [X], being aware of the AVO. The children were held back so other pedestrians, including the father, could move ahead, but the father was waiting for the group at the next set of lights.  The father’s actions were “making [X] uncomfortable” in the opinion of the teacher. Given the father's prior behaviour, including hitting [X] causing him to wet himself, I am satisfied the father's actions on this occasion reasonably caused [X] to fear for his safety and wellbeing, and that this was an incident of family violence by the father against [X].

13. The mother also alleged that after separation, the father came to the mother's home several times and raped her.  The mother gave no evidence of the father doing anything to her that could amount to a sexual assault.  A bare allegation is not evidence to prove the fact alleged.  In the absence of any such evidence, I can give this allegation no further consideration.

The applicable law

1. The proceedings come under Part VII of the Family Law Act 1975, being proceedings for parenting orders.  As previously mentioned, as the proceedings commenced before 5 June 2012, most of the amendments to Part VII of the Act and to definitions for that part that commenced on that date do not apply to these proceedings.

2. The Court may make such parenting order as it sees fit, subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) (s.65D). There have been no parenting plans about these children, so s.65DAB is not relevant.

3. Section 60B sets out the objects and principles of Part VII. In deciding what parenting order to make, the children’s best interests are the paramount consideration (s.60CA). In determining what is in the children’s best interests, the court must have regard to the matters in s.60CC as are relevant.

4. The synthesis of ss.60B and 60CC in the decision making process is explained by the Full Court of the Family Court of Australia in Goode v Goode, [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9, as follows:

   “10.  Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC ¶92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A).  The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.”

5. If the court is to make an equal shared parental responsibility order, the court must consider the children spending equal time with each parent, and if such an order is not to be made, must consider the children spending substantial and significant time with each parent (s.65DAA, and see MRR & GR, [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC ¶93-424). In relation to each of these options, the court must consider whether such an arrangement would be in the children's best interests (S.65DAA(1)(a) and (2)(c)) and is reasonably practicable (s.65DAA(1)(b), (2)(d) and (5)). If so satisfied, the court must consider making such an order (s.65DAA(1)(c) and (2)(e)).

Assessment of primary considerations (s.60CC(2))

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

1. The issue raised by the evidence in this case is whether it is possible for the children to have a relationship with their father from which they may derive a benefit.  The protective concerns for these children arising from the evidence of child abuse and family violence and the evidence of the father's mental health and that he poses a risk of harm to the children, and the way his delusional thoughts have on occasions been reflected in his behaviour towards the children in detrimental ways suggest very strongly that the prospects of the children having a beneficial relationship with the father in the future are most doubtful.  This remains to be further considered against the background of the protective concerns for the children under the second primary consideration, and the children’s views, relationship with each parent, and other additional considerations.

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

1. I am satisfied that the mother and both the children have been victims of the father's family violence, and that [X] has been abused by the father.  I am satisfied it is more likely than not that the father's behaviour towards the mother and the children is the result of or is influenced by his delusional beliefs about the mother's conduct.  As he still holds those beliefs, I am satisfied there is a continuing risk of family violence to the mother and the children and of abuse of both the children.

2. I am also satisfied that the father's behaviour towards both children in taking them for medical tests that arise from and expose the children to his delusional beliefs that are highly critical of the mother and her care of the children is of such seriousness as to give rise to concern that the father has neglected, and is at risk of neglecting, the children in the sense of exposing them to serious emotional and psychological turmoil and harm.  Despite his time being supervised and there being a non-denigration order in force, the father nonetheless told the children they were in danger with the mother the last time he saw them.  This, and his breaches of the AVO, satisfies me that the father is unable to modify his behaviour even in the face of court orders and when he is being supervised with the children.

Assessment of additional considerations (s.60CC(3))

(a)   Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

1. The only evidence of the children’s views if from the mother and from the records of the supervised contact centre.  Those records are consistent with the mother's report of the children being afraid of the father and resistant to seeing him.  I accept the mother's evidence, and am satisfied the children’s antipathy towards and fear of the father is such that they do not want to see him and no longer wish to bear his name.

(b)   The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

1. I am satisfied the children have a close and loving relationship with their mother.  I am satisfied the children’s relationship with their father is one marked by fear and apprehension about what he may do.  I am satisfied the children presently have a very negative relationship with the father, and that there is good reason, based on the father's violent and abusive behaviour in the past, and his exposure of the children to his delusional beliefs about the mother, for the children to have this negative view of the father.  I am not satisfied the children’s negative view of the father is the result of the mother telling the children lies about the father, as he believes to be the case.

(c)   The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. I am satisfied that the mother is willing to encourage and facilitate a relationship between the children and the father, if the father obtained treatment for his mental illness.  I am satisfied that the mother's refusal to facilitate unsupervised time with the father has been appropriate and necessary to ensure the safety and protection of the children.  As already mentioned, I am not satisfied the mother has told the children lies about the father to attempt to influence them against him.

2. I am not satisfied the father has facilitated and encouraged the children’s relationship with the mother, or that he would do so.  In taking the children for medical tests arising from his delusional beliefs about the mother's promiscuity and sexual abuse of the children, the father has exposed the children to his highly adverse view of the mother, who I am satisfied has been the children’s primary carer at all times.  I am satisfied that the father wishes to correct the lies he erroneously believes the children have been told about him by the mother, and to protect them from the abuse he erroneously believes the children have suffered at the mother's hands.  Even under supervised time with the children, the father told the children what they had been told about him was lies and that they were in danger with their mother.  I am satisfied the father is likely to tell the children similar things, and more, if he has the opportunity.  I am satisfied there is a risk of him doing so even if he is limited to written communication with the children.  I am satisfied therefore that any written communication by the father to the children must be monitored by the mother, as the Independent Children's Lawyer proposes.

(d)   The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. I am satisfied that the changes to the children’s current circumstances under the orders the father seeks will expose the children to a risk of emotional and physical abuse.  As mentioned, I am satisfied there is a risk of emotional abuse of the children, and of an undermining of their relationship with the mother, from unmonitored written communication.

2. I am satisfied that the absence of a positive and beneficial relationship for these children with their father will be detrimental to them.  However, I am satisfied that at present there is no prospect of there being a positive and beneficial relationship between the children and their father, due to his delusional beliefs and the actions he has taken adverse to the children based on those beliefs, and the high risk of a continuation of such action if the father spent any time, including supervised time, with the children.  I am also conscious that any attempt to have these children see the father will be against their views, and I note the current age of the children.

(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

1. The father presently lives in Victoria, the mother and the children in New South Wales.  The father in his final proposals suggested he would attempt to move to Sydney, but there is no evidence from him about that suggestion, and where he would be likely to live if he did move.

2. Despite the paucity of evidence, I will proceed on the basis there would be no practical difficulty or expense in the father spending time with the children as he seeks.

(f)       The capacity of each of the child’s parents and 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

1. I am satisfied the mother has well met the children’s needs, and will continue to do so.  I am not satisfied the father can meet the children’s needs, due to his delusional beliefs, apparently a product of mental illness, and the way his behaviour flowing from those beliefs has adversely affected the children in the past.  The father has maintained his steadfast denial that he has any mental health issues, even after his own psychiatrist said he did.  He has refused to seek any diagnosis or treatment.  There is nothing in the evidence to suggest he is likely to change his attitude.  Unless and until he does, and he is successfully treated for his mental illness, whatever that illness may be, I am not satisfied the father could meet the children’s needs.

(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

1. Apart from noting the children’s ages, and that both parents are Iraqi, there is nothing further of significance under this consideration.

(h)   If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right

1. This consideration is not relevant.

1. The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. I am satisfied the mother has demonstrated an appropriate attitude to the children and to the responsibilities of parenthood, appropriately seeking to protect the children from the father's violent and stalking behaviour, and his emotional and psychological abuse of the children.

2. Sadly, the father’s attitude to the children and his responsibilities as a parent are adversely affected by his delusional beliefs about the mother and that the children have been abused.  At times he has acted towards and with the children in ways that have been quite frightening to the children.  He cannot see that this is how his actions have affected the children.  He sees his actions as necessary to attempt to protect his children.  But in seeking to protect his children from an imaginary risk, he has harmed his own children.

(j)       Any family violence involving the child or a member of the child’s family

1. I have already dealt with this issue.  I am satisfied there has been, and there is a continuing risk of, family violence by the father, not only towards the mother but towards the children as well.

(k)   Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or the making of the order was contested by a person

1. The most recent AVO was made on 29 March 2012.  It was for a period of twelve months, and thus has expired.

(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

1. I am satisfied that the order least likely to lead to further proceedings is one in terms such as proposed by the mother and the Independent Children's Lawyer.  I am satisfied that an order to implement the outcome the father ultimately sought is likely to result in further proceedings as I am satisfied the father is likely to seek to correct with the children the lies he erroneously believes the children have been told and to tell the children about the danger he erroneously believes the mother poses to them, things he did to the children’s great distress even under supervised time at the contact centre.  If he did so, the mother would need to bring further proceedings to protect the children.

(m)  Any other fact or circumstance that the court thinks is relevant

1. I am not satisfied there is any other fact or circumstance that is of significance to the decision I must make.

Consideration of s.60CC(4) and (4A)

1. In the circumstances it is unnecessary to say any more in relation to the matters specifically referred to in s.60CC(4) and (4A). I have found that the mother's restriction of the father's time with the children was entirely appropriate to protect the children.

Discussion and decision

1. Tragically, this is one of the rare cases where there appears at present to be no safe option to allow the children to spend time with their father.  The evidence satisfies me the father has perpetrated family violence on the mother and both the children, and that he has abused [X].  It seems highly likely that this was a consequence of the father's delusional beliefs that the mother was extremely sexually promiscuous and not only exposed the children to her promiscuous behaviour but also sexually abused the children with her uncle, and had the children engage in sexual activity with each other.  I accept the evidence of Professor Q and Dr C that the father most likely is suffering a significant mental illness, and his delusional beliefs are part of that illness.  As the father steadfastly refuses to accept he may have a mental illness and refuses to seek treatment, and bearing in mind Professor Q’s opinion that the father poses a risk of harm to the children, an opinion I accept, there remains an ongoing risk of harm to the children, both physical and emotional, from any direct contact with the father.

2. The children’s relationship with the father has been formed against the background of his family violence and abuse, his taking the children for medical tests that flow from his delusional beliefs, and other irrational actions, such as taking the sheet off the mother's bed against her will to seek to prove she was having a sexual relationship with her uncle, following and stalking the mother, including when she had [Y] with her, approaching [X] in the street when on a school excursion causing [X] to be fearful, and twice hiding in the mother's home.  The father's treatment of the children and the mother has engendered in the children a well-founded fear of him. They are resistant to any relationship with him, to the extent of no longer wishing to bear his name.

3. Tragically, the result is that at this stage, the evidence does not suggest the children would derive any benefit from seeing the father.  Rather, it is likely to be highly distressing and harmful to them.

4. The only possible option that would seem to have any prospect of having any benefit for the children would be to allow the father to send them written communication, provided the mother monitors any such communication to ensure the contents are appropriate, and are not used by the father to attempt to correct the lies he believes the children have been told about him, to tell them the mother is a danger to them, or otherwise to be critical of the mother or her family.

5. For these reasons, I am satisfied the children should continue to live with the mother, the mother should have sole parental responsibility, and the father should not spend any time with the children.  The father should be able to send written communications for the children to the mother, and the mother should be required to give them to the children unless the contents in her opinion are inappropriate and likely to cause the children distress or alarm.

6. The Independent Children's Lawyer proposed that the father be permitted to send the children written communications to the children twice a year.  I am satisfied that given the strength of the children’s current aversion to any contact or communication with the father, he should be limited in the number of times each year he should be permitted to communicate with each child.  However, I am satisfied the limit should be three times each year for each child.  They could coincide with each of the children’s birthdays, and at Christmas and Easter or at other religious festival times observed by the father or the children, such as Eid al-Fitr and Eid al-Adha, but they need not be restricted to those times.

7. The form of orders proposed by the mother would permit the father to have email communication with the children under her supervision.  I am not satisfied email communication is an appropriate form of communication in the circumstances of this case.

8. I am satisfied it would be in the children’s best interests to allow the mother to effect the change of the children’s name she seeks.  I accept the children’s views to be as reported by the mother, and I note the significance Professor Q placed on this view of the children.  While this may sever a connection with the father, in circumstances where the children will have no direct interaction with the father, nonetheless I am satisfied it is the children’s strong wish to change their name, flowing from their highly negative experience of their father.

9. As previously mentioned, although the mother clearly wished to be able to take the children overseas without the father's consent, she only sought discharge of the Watch List order, and neither sought discharge of the order restraining removal of the children from Australia, nor an order specifically permitting her to take the children out of Australia.  The father sought a specific order restraining removal of the children from Australia, and I am satisfied the parties are clearly aware of the issue and had full opportunity to address it during the hearing, and that if I am satisfied the mother should be permitted to take the children out of Australia, it is open to me to make appropriate orders to facilitate this even though the orders actually sought by the mother would be insufficient to permit her to take the children overseas.

10. The mother sought to be able to take the children to visit family in Iraq.  Prima facie that is something that might benefit the children, meeting with their extended family, visiting the land of their parents’ birth, and being exposed to its culture and traditions.

11. However, the mother said she did not wish the father to know when she and the children travel there because of a fear he will attempt to gain the children through the Iraqi courts.  In fact, during the hearing, the father stated he would try again in the Iraqi courts if he was unsuccessful in this court.

12. The parents are cousins.  Part of her family is also part of his family.  There thus must be a risk of the father learning of any proposed or actual travel by the mother and children to Iraq.  The Independent Children's Lawyer initially supported overseas travel by the children, but when submission was sought on this issue and any risk to the children if the father were to learn of their travel to Iraq, the Independent Children's Lawyer withdrew that support and opposed overseas travel.

13. It was put on behalf of the mother that she would ask her family in Iraq not to tell the father about any visit she made, although this was put in submissions and was not in the evidence given by the mother.

14. The father asserted that the mother and the children would be physically harmed or killed if they went to Iraq.  This did not appear to be a reference to any risk to personal safety arising from unrest in Iraq, but rather a targeted risk to the mother and children that the father seemed to suggest would arise from tribal mores and matters of honour.  He did not further explain from whom or why this risk arose, and he too did not give this in evidence, but rather said it in submissions.

15. The mother said, and I accept, that in 2008 the father threatened to kill her and the children, and she took that threat seriously.  In light of that, I was deeply troubled by the father's assertion that the mother and children would be at risk of physical harm, and may be killed, if they went to Iraq.

16. As it was the mother's case that the father posed and still poses a physical risk to her and the children, in light of the mother's fear the father may seek to obtain the children through the Iraqi courts if he knows she and the children are there, and as I am not satisfied on the evidence that the mother can ensure the father is unlikely to learn if she and the children visit Iraq, I am satisfied that the risk to the children of travelling to Iraq outweighs the benefit to them of visiting family there, and therefore the mother should not be permitted to take the children out of Australia.

17. Rather than leave the interim orders of 14 April 2010 in place, in my view it would be preferable to discharge those orders and make a fresh order restraining the removal of the children form Australia with a Watch List order.  In the circumstances of this case, I am satisfied the Watch List order should continue indefinitely, rather than be subject to a “sunset clause”.

18. Because of the protective concerns I have for the mother and children, and considering the serial AVOs the mother has obtained and that there currently is no AVO in force, I am satisfied injunctive orders to the effect of those sought by the mother and proposed by the Independent Children's Lawyer should be made for the protection of the mother and the children. I am satisfied that the restraint on the father approaching the mother or the children, their home, the children’s schools, and the venue of their extra curricular activities should be expressed in terms to attract the power of arrest without warrant under s.68C. I am not so satisfied in relation to the order restraining the father from communicating with the mother or the children. If the father abuses the order permitting him to send written communications to the children, to be vetted by the mother, or otherwise attempts to contact the mother inappropriately, she may make further application as may be appropriate in the circumstances.

19. I am not satisfied the father demonstrated any reason for granting the order he sought restraining the mother from sending money overseas.  For the reasons given for not granting the father any time with the children, it is not in the children’s best interests to grant the order the father sought that if the mother travels overseas without the children the children be left in his care, nor would it be in the children’s interests for the father to have telephone or internet video communication with the children. I am satisfied it would be appropriate that the father be notified promptly by the mother if either of the children suffers any serious injury or illness.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Halligan

Associate: 

Date:  21 June 2013