Asif and Kurdi

[2018] FamCA 507

FAMILY COURT OF AUSTRALIA

ASIF & KURDI [2018] FamCA 507

FAMILY LAW – CHILDREN – With whom the children live – Where the risks to the children in relation to the mother’s physical discipline, the mother’s isolation and exposure to the maternal uncle are not unacceptable risks and the father made such a concession  –  Where each party accepts that it is in the children’s best interest to have a continuing relationship with the other parent - Where the mother would not undermine or fail to facilitate the children’s relationship with their father if they live with her – Where significant weight is not placed on the views of the children – Where the father conceded that the mother should have sole parental responsibility if the children remained in her care – Where the children have endured significant change in their short lives and appear settled and happy in their current environment – Where the children shall continue to live with the mother and see and speak to their father on a regular basis.

Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
M & M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
SCVG & KLD Error! Hyperlink reference not valid.

APPLICANT: Ms Asif

RESPONDENT: Mr Kurdi

INDEPENDENT CHILDREN’S LAWYER: Ms P. Keyworth

FILE NUMBER: BRC 7424 of 2016

DATE DELIVERED: 11 July 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 30 April – 1 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Clutterbuck

SOLICITOR FOR THE APPLICANT: Stolar Law

COUNSEL FOR THE RESPONDENT:  Mr Clift

SOLICITOR FOR THE RESPONDENT: Cooper Grace Ward Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Frizelle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Keyworth Harris Lowe Family Lawyers

Order

1. All previous parenting orders be discharged.

2. The mother have sole parental responsibility for the children, X born … 2008 and Y born… 2010 (“the children”).

3. The mother keep the father informed in writing in relation to decisions about:

   (a)       Schooling of the children, including decisions about the type of schooling and the schools at which the children will attend;

   (b)       Surgery, hospitalisation and medical treatment for any serious injury, illness, condition or disability including attendance of the children for whatever reason upon a child psychologist, counsellor, family therapist or psychiatrist;

   (c)       Religion and religious instructions and observance by the children;

   (d)       The children playing or being involved in a sporting, cultural, artistic or community activity including competition, training or meeting; and

   (e)       Any major long term issue affecting the children.

   And, before making a decision, invite the father to provide his views in writing in relation to any decision which needs to be made.

4. The children live with the mother.

5. The children spend time and communicate with the father as agreed between the parties in writing and failing agreement:

   (a)       By WhatsApp/Skype or similar video call each Sunday from 4.00pm to 4.30pm;

   (b)       By telephone each Wednesday from 4.00pm to 4.30pm;

   (c)       During each school term, for one (1) weekend per calendar month as agreed between the parties and failing agreement, for the first weekend of each calendar month in Sydney from 7.00pm on the Friday until Sunday, with the children to be returned to the mother in Brisbane by 5.00pm or if the Friday or Monday is a public holiday then the weekend time commence on the Thursday or conclude on the Monday;

   (d)       If the father is in Brisbane during the school term, and on the giving of not less than 14 days’ notice, from after school on Friday until return to school on Monday, provided that such weekend time not occur more frequently than each alternate weekend;

   (e)       For on religious holy days in 2019 and each alternate year thereafter with the father and in 2018 with the mother provided that this time occur for the father only in Brisbane if on a school day otherwise the father be entitled to telephone/WhatsApp the children on this day;

   (f)       For on religious holy days in 2020 and each alternate year thereafter with the father and in 2019 with the mother provided that this time occur for the father only in Brisbane if on a school day otherwise the father be entitled to telephone/WhatsApp the children on this day;

   (g)       For the Father’s Day weekend from after school on Friday until return to school on Monday, with the mother to have the children for the Mother’s Day weekend from after school on Friday until return to school on Monday; and

   (h)       For the first half of all Queensland gazetted school holidays commencing on the day after the school term concludes.

6. The time for each parent on religious holy days, Mother’s Day and Father’s Day occur in priority to any other time referred to herein.

7. When the children spend time with the father, the mother be entitled to communicate with the children as agreed between the parties in writing and failing agreement:

   (a)       By WhatsApp/Skype or similar video call each Sunday from 4.00pm to 4.30pm;

   (b)       By telephone each Wednesday from 4.00pm to 4.30pm; and

   (c)       By telephone/WhatsApp/Skype or similar on religious holy days.

8. The children be entitled to communicate with either of their parents at any reasonable time they so request and the parent with whom the children are living will facilitate that communication.

9. The father will be responsible for the costs of the children’s airfares when travelling to Sydney to spend time with him and returning to Brisbane and will advise the mother in writing of the arrival and departure times of the flights not less than 14 days prior to the commencement of such time.

10. Changeover is to occur at the Brisbane Domestic Airport unless otherwise agreed in writing and:

    (a)       At the commencement of the time the children are to spend with the father, the mother is to deliver the children to the Brisbane Domestic Airport and ensure they board; and

    (b)       The father is to collect the children from the arrival lounge of the Sydney Domestic Airport when they arrive; and

(c)       At the conclusion of the time the children are to spend with the father, the father is to deliver the children to the Sydney Domestic Airport and ensure they board; and

(d)       The mother is to collect the children from the Brisbane Domestic Airport when they arrive.

1. Both parents be at liberty to attend all school events to which parents are invited by the school to attend.

2. Both parents be at liberty to send cards, photographs, letters and gifts to the children.

Specific issues

1. Each parent notify the other as soon as practicable of any accident, emergency, serious illness or significant injury involving the children.

2. This Order is sufficient authority for:

   (a)       The children’s school to provide each parent with copies of all school reports and other reports on school progress and behavioural issues and all school circulars, notices, details of all functions, parent-teacher nights and other activities to which parents are invited and school photograph order forms; and

   (b)       The children’s general medical practitioner or any other professional associated with the health, welfare, care and development of the child to communicate with each parent and provide them with all such information and documents they may request from time to time regarding the children’s medical health and general welfare, including any diagnosis, proposed treatment or prognosis for the children.

3. Each parent keep the other parent informed at all other times of all professionals consulted in relation to the welfare, care, health, development and education of the children at all times including but not limited to the particulars of the name, address and contact details of that professional.

4. Each parent irrevocably authorises any person or institution including but not limited to any doctor, carer, teacher, hospital, childcare institution, school and any social, sporting or recreational organisation, to release all and any information, (verbal or in writing) reasonably requested by the other parent in relation to the children.

5. Each parent inform the other of their residential address, home telephone number, mobile telephone number and email address and notify the other in writing of any change to those details within twenty-four (24) hours of such change.

Injunctions

1. Each parent is restrained and an injunction hereby issues restraining each of them from exposing the children to physical or emotional harm whilst in their respective care.

2. Each parent is restrained and an injunction hereby issues restraining each of them from exposing the children to family violence.

3. Each parent is restrained and an injunction hereby issues restraining each of them from physically disciplining the children or allowing any other person to physically discipline the children.

4. Each parent is restrained and an injunction hereby issues restraining each of them from:

   (a)       Denigrating the other parent, and each parent will use his and her best endeavours to discourage anyone else from denigrating the father or mother or members of their family, while in the children’s presence or hearing;

   (b)       Questioning the children about the whereabouts or activities of the other parent at any time; and

   (c)       Discussing any aspect of the court proceedings while in the children’s presence or hearing.

International Travel

1. MR KURDI born … 1983, MS ASIF born … 1976, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of X born … 2008 and Y born … 2010 from the Commonwealth of Australia until:

   (a)       For X, … 2026; and

   (b)       For Y, … 2028.

   AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing X, born … 2008 and Y, born … 2010 on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watchlist for the said period, or until the Court orders their removal.

Other orders

1. The mother will arrange and ensure the attendance of the children at non- reportable therapeutic counselling to assist them to deal with their living arrangements and relationship with their parents and extended family and these orders and it is noted that the mother may be required to engage in the public health system for this purpose.

2. Within fourteen (14) days of this Order, the mother contact the parenting orders program coordinator (or their nominee) at B Group to arrange for intake into the program.

3. Within fourteen (14) days of this Order, the father contact the parenting orders program coordinator (or their nominee) at C Group to arrange for intake into the program.

4. The parents shall comply with any reasonable direction of the program coordinator and in particular:

   (a)       Attend as requested for the purposes of assessment as to whether they are suitable for participation in the program;

   (b)       Attend and participate in the program as requested, (provided that either parent may refuse at their election to participate in joint sessions);

   (c)       If considered appropriate by the coordinator:

   (i)Attend a Triple P parenting program or equivalent parenting program as nominated by the program coordinator; and/or

   (ii)Attend an anger management counselling program as nominated by the program coordinator.

   (d)       For the purposes of the program:

   (i)A copy of this Order will be provided by the parents to the program coordinator; and

   (ii)The parents are at liberty to supply to the program coordinator a copy of any family reports that have been prepared for these proceedings.

   (e)       Upon completion of any program each parent provide a copy of the completion certificate to the other parent within seven (7) days of completion.

5. Any outstanding applications be dismissed.

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 Asif & Kurdi 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 BRISBANE

FILE NUMBER: BRC 7424 of 2016

Ms Asif

Applicant

And

Mr Kurdi

Respondent

REASONS FOR JUDGMENT

1. Ms Asif is the mother and Mr Kurdi is the father of two boys, X aged nine and Y aged eight. Currently the children live with their mother in Brisbane and spend time with their father in Sydney one weekend per month and one half of school holidays. The parents are unable to agree on final parenting arrangements for their children and require this Court to resolve their dispute.

2. The mother wants the children to continue to live with her and spend one weekend per month[1] and one half of school holidays with the father. The father wants the children to live with him in Sydney and spend one weekend per month and one half of school holidays with the mother.

   [1] The mother made this concession during submissions.

3. Despite the parent’s disagreement on where the children should live, the parents nevertheless agree on many other provisions to be included in the parenting order such as mutual restraints prohibiting physical discipline of the children and prohibiting overseas travel by the children.   

4. For the reasons which follow I propose to leave the children in the primary care of the mother who will have sole parental responsibility for major long term issues. The children will spend time with the father each month during school term and for one half of the holidays. They will also have regular communication with him.

5. The mother’s application for spousal maintenance was not pressed and will be dismissed.

issues

1. The significant issues relevant to my determination are:

   a)Will the children be at risk of harm in the mother’s care by reason of her use of physical discipline; her isolation; or the presence of the maternal uncle?[2]

   b)Will the mother facilitate the children’s relationship with the father if they remain in her care?

   c)Will the father undermine the mother’s relationship with the children if they live with him?

   d)Will the father facilitate the children’s relationship with the mother if they live with him in Sydney?

   e)What weight should be given to the children’s wishes?

   [2] By the end of the trial the father conceded that any risk in relation to these issues was not an unacceptable risk but were reasons why the children should be returned to the father in Sydney.

Background

1. Before considering these issues I note, by way of background, that the parents and children were all born in Asia. The parents married in 2007 and separated in January 2016. Their marriage was an arranged one and by all accounts it was unhappy.

2. With the assistance of the maternal uncle and maternal grandmother in Australia, the mother, father and children migrated to Australia on 10 June 2015. Their right to enter Australia was under a carer’s visa. The mother’s mother was the person for whom the mother provided care under the visa until her death in September 2016.

3. The mother and father are now permanent residents of Australia.

4. The mother is forty-one and the father is thirty-four. Neither is employed. They each receive Centrelink payments as their only source of income. The mother attends English classes at TAFE five days a week during school hours. Her command of the English language is commendable. It is her intention to undertake a one year child care course or a six month aged care course and obtain employment in one of those fields. The father has had some casual employment but ceased all employment in November 2017. He says that he is looking for work.

5. The mother’s religion and places great importance on the children adhering to the tenets of her faith. The father is of the same religion and places great importance on the children studying religious texts, which they do in each household. While both Country D, the parents have different ethnic backgrounds which seems to have exacerbated their marital difficulties.

6. The mother lives with the children in a rented property at Suburb E in Brisbane and the children attend a local school. Apart from the period January to September 2016 (when they lived in Sydney with their father) the children have lived in that house and attended their current school since arriving in Australia in June 2015.

7. The father lives in Sydney with his sister and her three adult children. His sister financially supports him to a very large extent. Any money he receives from either Centrelink or employment is retained by him. He has the use of a motor vehicle for which he sometimes contributes petrol.

8. In January 2016 there was a falling out between the father and maternal uncle and the father was evicted from the premises in which they had all been living. The children were exposed to what was clearly a very upsetting event for all concerned. The children left with the father and did not see or communicate with their mother again until September 2016 (other than a brief encounter in August 2016 when the mother came to the father’s home in Sydney). There are conflicting versions about why the father left with the children although the mother says that she believed she had no rights to keep the children. Neither the mother nor the father made any attempt for the children to spend any time or communicate with the mother during this period. The mother made one telephone call to the father in March 2016 but she was unsuccessful in speaking to the children.  

9. An Order was made in September 2016 for the children to be returned to the mother in Brisbane. The children have spent time with the father on one weekend per month and some holiday time since then. The father has arranged for the air fares for the children but has not paid any child support.

Applicable legal principles

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper,[3] but such consideration will focus in particular on matters raised as significant issues by the parties and of course the Court.[4]

   [3] See Family Law Act 1975 (Cth) s 65D.

   [4] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637.

2. The Court is not required to make findings of fact on every factual dispute raised by the parties.[5]

   [5]Baghti & Baghti [2015] FamCAFC 71.

3. The objects and principles of Part VII of the Act are set out in s 60B(1) and (2) and those sections make it clear that the Court is concerned with children’s rights to be, among other things, cared for by both parents when it is safe for that to occur.

4. In deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration (s 60CA).

5. The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child etc (s 60CC). In considering the primary considerations the Court must 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(2A)).

1. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

2. Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).

3. Section 61DA provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

4. Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

5. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

6. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in what is sometimes referred to as the ‘legislative pathway’ I have considered all sections as required when making my determination.[6]

   [6]Banks & Banks (2015) FLC 93-637.

7. In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the ‘inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding’ and proof to the reasonable satisfaction of the court ‘should not be produced by inexact proofs, indefinite testimony or indirect inferences’.[7] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[8]

Will the children be at risk of harm in the mother’s care by reason of her use of physical discipline; her isolation or the presence of the maternal uncle?

[7] See M & M (1988) 166 CLR 69 (“M & M”) citing Briginshaw v. Briginshaw (1938) 60 CLR 336, 362 (Dixon J).

[8] See M & M (supra) and see also N and S and the Separate Representative (1996) FLC 92-655.

1. I note at the outset that the father did not press for a finding that there is an unacceptable risk of sexual harm to the children from the mother despite raising this as an issue in his material. While he maintained that Y told him something in March or April 2017 which he interpreted to mean that the mother had engaged in inappropriate sexual conduct with the child, the father accepts that there has been an investigation of the matter by State Child Safety officers and the allegation has been unsubstantiated. The father accepts that Y is not at risk of sexual harm from his mother in the future.

2. The father conceded during submissions, that the risk in relation to physical discipline and the mother’s isolation and the exposure of the children to the maternal uncle were not unacceptable risks, but nevertheless argued that they posed a risk which favoured the children’s removal from the mother’s care to live with him in Sydney.

3. The children have told their father, the family report writer, Ms F, and also police during a s 93A interview on 23 November 2016 that their mother hits them. During the interview with police, X said his mother hit him with a stick on his legs and his thumb.

4. The mother concedes using a stick to discipline the boys after they returned to her care in September 2016. The mother describes the stick as about half a metre long. She denies leaving any marks on the children and there is no evidence that she has left a mark or bruise on the children. She maintains that she has not used a stick on the children since the Order made on 15 February 2017 prohibiting her from doing so, but in oral evidence she was quite vague about when she ceased. The children told the report writer in January 2018 that the mother continues to hit them. The report writer opines that if the mother is continuing to physically discipline the children it suggests a continued vulnerability in her capacity to manage the children’s behaviour and to make changes to her parenting strategies based on new information.

5. It is fair to observe that our society has become less tolerant of parents resorting to physical discipline of their children. Excessive use of physical discipline may well lead to criminal charges. As yet, a smack with a hand is unlikely to result in any criminal sanction. It may well be that there is a greater tolerance for physical discipline in the cultures of the parents. That does not mean that it should be condoned. If it is considered wrong in Australia then that is the test to be applied i.e. in considering what is in the best interests of the children it may well be that the mother’s past treatment of the children will be a reason for the children not to remain with her if it is assessed that she poses an unacceptable risk of harm in the future.  

6. While there may be a risk of the children being physically disciplined by the mother in the future, given her past history of physical discipline and the children’s recent complaint to the report writer that the mother continues to hit them, I nevertheless assess the magnitude of the risk and in particular the impact on the children to be low. I do so because there is no evidence that the children have suffered bruising or other injury; there is nothing in the school records to support a finding of future risk; the school reports indicate the children are very well behaved and happy; the mother has obtained some assistance from attending upon a psychologist and receiving parenting advice which seems to have assisted her in dealing with any difficult behaviour by the children; the children have a close and loving relationship with their mother as observed by the report writer[9] and the father and school authorities would be able to continue to monitor the children’s wellbeing if the children remain with the mother.

   [9] See [55] Family Report

7. Turning then to consider the issue of the mother’s alleged isolation. The mother relies upon her brother for emotional and financial support. She does not appear to have a significant network of friends although she attends TAFE daily for her English classes and is part of an ethnic community who have provided her with assistance in the past. The mother proposes to obtain employment and identifies plans in that regard. Accordingly, I am not satisfied that there is an unacceptable risk of harm to the children by reason of the mother’s alleged isolation.

8. Lastly, the father contends the children are at risk from the maternal uncle. The maternal uncle supported the family upon their arrival in Australia. He was the sole income earner. It is apparent from all accounts that there were tensions within the household which led to the eviction of the father from the household in January 2016. There remains much bitterness about this event particularly from the father. It was a great source of shame for him. After the children were returned to the mother in September 2016 the maternal uncle assumed the role as head of the household. It seems that in the parent’s culture, the man is the head of the household and women have fewer rights to assert their individuality or opinions. In that role it seems that the maternal uncle disciplined the children and they complained about it to their father. In February 2017 the maternal uncle obtained his own accommodation and that has remained the situation. When giving evidence, the maternal uncle made it very clear that he wishes to distance himself from his previous role and encourages the mother to become independent. I accept his evidence and assess any risk of physical discipline from him to be low particularly given that he is no longer part of the household and has expressed such firm views about not wishing to assume a disciplinary role.

Will the mother facilitate the children’s relationship with the father if they remain in her care?

1. There remains animosity between the parents and their extended families but the mother supports an order for the children to spend time with and communicate with the father and that has been occurring for the last eighteen months although not without controversy.

2. There are some aspects of the Order made on 22 September 2016 that the mother failed to comply with, in particular:

   a)The mother delayed the children’s departure to spend time with their father during the December 2016 holidays. The Order entitled the children to spend time with their father for the first half of the holidays which commenced on 10 December 2016. The father notified the mother on 9 December that he had booked the children’s flights for the following day. The mother maintained that was insufficient notice and the children did not travel until 16 December 2016.

   b)The mother did not send the children to the father for the June 2017 school holidays despite the Order requiring her to do so. The father had purchased tickets for the children to travel on 25 June 2017 but the mother did not send the children because it conflicted with a significant Muslim religious holy day and as the children had spent that day with the father in the previous year she failed to comply with the Order.

   c)The mother does not always ensure that the children speak by Skype to the father on Sundays but it is common ground that the children do speak to their father on a number of occasions each week.

3. It was made very clear to the mother during the trial that her compliance with court orders is not optional. I do not expect the mother will contravene an order in the future but if she does she will face Court sanction.

4. Apart from the matters raised above the mother has complied with the existing Order in all other respects.

5. The children continue to have a close relationship with the father despite the limitations in the time they spend with him.

6. The fact that the children engage in regular communication with the father; see him largely in accordance with the existing parenting Order; and continue to have a close relationship with him augur well in my view for the mother’s ability to facilitate the children’s relationship with the father in the future.

Will the father undermine the mother’s relationship with the children if they live with him and will he facilitate the relationship if the children live with him in Sydney?

1. As noted above there remains animosity between the parents and their extended families.

2. The father did not take any steps to have the children see or communicate with the mother in the period January to September 2016. He asserts that the mother told him when he left with the children that they could ‘go to hell’. He interpreted her alleged statements as meaning that she did not want to be involved in their lives. But even on his own case the mother made contact in March 2016 wanting to speak to the boys and he did nothing to arrange for the children to speak with or see their mother.

3. The mother sought legal assistance but proceedings did not commence until August 2016. Apart from arriving at the father’s home early one morning in late August 2016 the mother made no other attempt to communicate or see the children while they were living in Sydney.

4. I consider that both parties showed little insight into the impact their actions or lack thereof had on the children. The father did not consider that the boys even missed their mother but it is clear that they did when one reviews the evidence from Ms F, family consultant, in the oral report she gave to Court on 9 September 2016.

5. The father has made some very serious allegations against the mother involving her touching Y in a sexually inappropriate way. I accept the father’s evidence that he attempted to discuss his concerns with the mother in February 2017 but was rebuffed. It is clear that the father continued to question Y about the alleged incident for many months after it was alleged to have occurred. Despite what Y allegedly said to the father he returned the children to their mother in February 2017 and it was not until April 2017 that he reported his concerns to authorities (after discussing it with his sister). The father accepts that the outcome of the investigations resulted in his allegations being unsubstantiated. The father now accepts that there is no unacceptable risk of Y being sexually abused by the mother in the future.

6. Each party now accepts that it is in the children’s best interests to have a continuing relationship with the other parent.

7. Accordingly, and despite the father’s actions in failing to arrange for the children to speak with or see their mother in the period January to September 2016 and his conduct in relation to the sexual abuse allegation, namely continuing to question Y, I am not persuaded that the father would undermine the children’s relationship with the mother in the future or fail to facilitate their relationship with her if the children were to live with him. Having heard the father give his evidence I consider that he has now developed a better insight into the importance of the children maintaining their relationship with the mother. The father will also be assisted in his role by his sister who provides both emotional and financial support for him.

What weight should be given to the children’s wishes?

1. X told the report writer that one of his parents should move so he could live between both houses. The prospect of moving locations was explored with each parent but neither expressed a desire or ability to relocate. X said he wanted to live with his father because he did not want his uncle to tell him what to do.

2. The report writer opined that Y expressed a clear preference for living with his father but I am not so persuaded because while Y rated living with his father ten out of ten (with ten being the most positive score) he then  rated living with his mother nine out of ten. That preference seems to me to be a finely balanced one.

3. The children are very young. They clearly love both of their parents. X expressed views supportive of living with both parents. Y’s responses to the report writer could be interpreted in the same way.

4. Given the children’s ages I am disinclined to place significant weight on their wishes but their wishes do support the continuation of a meaningful relationship with each parent and regular time with each parent.

other considerations

1. I have set out above my conclusions in relation to the significant issues raised during the trial.

2. There are other matters that I consider should be specifically discussed before identifying what order I propose to make.

3. The first is the nature of the children’s relationship with each parent. The report writer has observed the children with each parent on two occasions, once in 2017 and another in 2018. In the most recent interview she observed ‘very positive and relaxed interactions between the children and their mother particularly between [X] and his mother’. The children’s interactions with their father were observed to be ‘fun and relaxed’ with Y appearing to be ‘more outgoing and happy in his father’s care than with his mother.’ The report writer concludes that the children have a ‘positive caregiving relationship’ with each parent and I accept her opinion.  This is despite the complaints made by the children about the mother’s disciplinary techniques. The children have experienced each parent as their primary carer and there is no reason to believe that either parent lacks the ability to provide for the children’s day to day needs. 

4. Each party accepts that it is in the children’s best interests to have a meaningful relationship with the other parent in the future.

5. Secondly, the mother raised some historical allegations of family violence against the father but did not press them as relevant to the current proceedings. It is nevertheless incumbent upon me to consider such matters so as to ensure that no order I make is likely to place the children at an unacceptable risk of harm. The mother alleges that in Country D she was controlled by the father and physically assaulted by him on occasion. Upon their move to Australia the mother says that there was one occasion when he grabbed her by the neck quite forcefully. The mother and maternal uncle gave some conflicting evidence about the alleged assault causing any mark on the mother. The mother also says that the father continued to be controlling of her in Australia. Despite those allegations the mother does not raise the father’s treatment of her as a reason why the children should not spend time with their father. The mother in fact deposes – ‘… now that we have kept our distance since separation, I am content to not dwell on past issues.’ I should note that the father denies all allegations of violence. There have been no protection orders made. I am conscious of the provisions of s 60CG of the Act. I note that the parents agree to each be bound by rather broad ranging injunctions enjoining them from, among other things, exposing the children to family violence. In those circumstances I am satisfied that any order I propose to make will not place the children or a party at an unacceptable risk of harm.

6. Thirdly, while the independent children’s lawyer suggested it was open to find that there had been two occasions when the father perpetrated family violence upon the mother this was only in the context of whether or not the s 61DA presumption applies. Even if the presumption applies, I am readily satisfied, in the circumstances of this case, that the parents inability to communicate would impede their ability to make joint decisions about major long term issues that affect their children. The father conceded that the mother should have sole parental responsibility if the children remained in her primary care.

7. Fourthly, I turn to consider whether the children’s living arrangements should again be changed. The children have endured significant change in their short lives. They left their homeland to come to Australia in 2015. They lived with their maternal uncle and maternal grandmother and their parents for the period June 2015 to January 2016 in circumstances where they were exposed to conflict particularly between the father and maternal uncle. They were then taken to Sydney by the father in January 2016 and did not spend any time or communicate with their mother until returning to her in September 2016. They were removed from the father’s home with his extended family in Sydney to return to Brisbane. They returned to their previous school. Sadly their maternal grandmother died in September 2016. They have spent significantly less time with their father since returning to live with their mother.

8. They have now been in a routine since September 2016. The children appear to be settled and happy in their current environment. X’s school report describes him arriving at school each day with a smile on his face. His behaviour is described as excellent. Y has received extra tuition for areas he has experienced difficulty with and has shown considerable progress. Their behaviour has settled.

1. Although Ms F considers the boys would adapt in time to moving back to Sydney there will still be a further adjustment necessary if they move again.

2. While it was suggested that cultural aspects were significant in this case there is little evidence about culture. There are some assertions about the cultural shame caused to the father by being evicted from the maternal uncle’s home in January 2016 and reference was made to the number of languages spoken and the importance of large families. Apart from that I was not taken to any evidence to support the submission that cultural aspects were significant. The children are exposed to languages other than English in each household and are tutored in Islam in each household. The children will continue to have a relationship with extended family members.

conclusion

1. I come to the conclusion that it is in the best interests of the children to continue to live with their mother. I have found that they will not be at an unacceptable risk of harm if they remain with her. Despite the mother failing on occasion to comply with a previous parenting Order I am satisfied that she will facilitate the children’s relationship with the father in the future. While the father did demonstrate some propensity to subject the children to questions about the mother in the past I am satisfied that the restraints on the father, to which he has agreed, will overcome any potential for that to be an issue in the future. I am also satisfied that the father has gained some insight into the importance of the children’s relationship with the mother. The children have a close and loving relationship with both parents, which will continue pursuant to the order I propose to make. On balance, I do not consider it would be in the children’s best interests to be subjected for further change.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 11 July 2017.

Associate:

Date:  11 July 2018