AZIMI & FAEZ

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZIMI & FAEZ

[2020] FCCA 3185

Catchwords:
FAMILY LAW – Parenting – best interests of child – Orders made.

Legislation:

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 65DAA, 65D

Applicant:

MR AZIMI

Respondent:

MS FAEZ

File Number:

PAC 5827 of 2016

Judgment of:

Judge Newbrun

Hearing date:

17, 18 and 19 August 2020

Date of Last Submission:

19 August 2020

Delivered at:

Parramatta

Delivered on:

23 November 2020

REPRESENTATION

Solicitors for the Applicant:

Ms Popovski - Western Sydney Solicitors

Counsel for the Respondent:

Mr Havenstin of Counsel

Solicitors for the Respondent:	Legal Aid NSW Sydney Central Family Law
Counsel for the Independent Children’s Lawyer:	Ms Saw of Counsel
Solicitors for the Independent Children’s Lawyer:	JLM Family Lawyers Pty Ltd

ORDERS

That all previous parenting Orders in relation to the children W born 2011, X born 2012, Y born 2014, and Z born 2015 (“the children”) be discharged.
That the Mother shall have sole parental responsibility in relation to the health of the children and subject to the following:-
(a)That when making health decisions for the children the Mother is to email the Father the nature of the decision to be made and her proposal for making such decision; and
(b)Within three days of receiving such email, the Father is to respond to the Mother outlining any proposal for the Mother’s consideration prior to her making such decision; and
(c)The Mother within a further three days of receiving the Father’s email, shall advise the Father of her decision;
That subject to Order 2 above, the parents shall otherwise have equal shared parental responsibility for the children.
That the children live with the Mother.
That the children shall spend time with the Father as follows:
(a)During school terms:
(i)On each Sunday from 1.00pm to 7.00pm.
(b)During school holidays:
(i)On each Sunday from 1.00pm to 7.00pm; and
(ii)On each Wednesday from 1.00pm to 7.00pm.
(c)On special occasions:
(i)In year’s ending with an even number, on the first day of Eid from 1.00pm to 7.00pm;
(ii)In years ending with an odd number, on the second day of Eid from 1.00pm to 7.00pm;
(iii)On each of the children’s birthday, if a school day from the conclusion of school (or otherwise 3.30pm) to 5.30pm if the children are not in the Father’s care and if a non-school day, for a period of three hours as agreed between the parties in writing or otherwise from 10.00am to 1.00pm;
(iv)On the Father’s birthday if a school day from the conclusion of school (or otherwise 3.30pm) to 7.00pm if the children are not in the Father’s care and if a non-school day for a period of three hours as agreed between the parties in writing or otherwise from 10.00am to 1.00pm;
(v)On Father’s Day from 1.00pm to 7.00pm;
(vi)On other occasions as agreed in writing between the parties.
That the Father’s time with the children pursuant these Orders be supervised by either of the following paternal relatives:
(a)Ms B Azimi,
(b)Ms R,
(c)Ms S.
That the Father’s time with the children pursuant to these Orders above is subject to the paternal relative who is to supervise the Father’s time with the children providing the Mother with a signed undertaking prior to the time occurring in which they are to declare that they have been given a copy of and have read and understand these Orders and that they undertake to be present at all times during the time the children spend with the Father pursuant to these Orders.
That the Father’s time with the children shall be suspended to allow the Mother to spend time with the children as follows:
(a)On Mothers’ Day from 1.00pm to 7.00pm.
(b)On other occasions as agreed in writing by the parties.
To facilitate the Father spending time with the children, the Father shall collect the children from Arabic School at whichever location the children attend, and otherwise from the Mother’s residence at the commencement of his time with the children, and shall return the children to the Mother’s residence at the conclusion of his time with the children. If applicable, the parent taking care of the children is not to enter onto the other parent’s property during changeover and the parents are not to engage in verbal conflict during changeover.
That the children have FaceTime with the Father on Wednesdays between 5.30pm and 6.30pm with the Father to contact the children via FaceTime on a mobile telephone number provided by the Mother to the Father within 48 hours of the date of these Orders.
That for the purposes of Order 10 above, the parents are restrained from speaking directly with each other, or about each other, or sending messages to each other via the children or be visible on the screen during the FaceTime communication between the Father and the children.
That the parents shall do all things necessary to encourage the children to participate in the FaceTime communication pursuant to Order 10 above and the Court notes that there may be some difficulties at times given that Z had been diagnosed with Autism and X has been diagnosed with ADHD.
That the children’s names remain on the Airport Watchlist until further Order of this Court.
That both parents are restrained from physically disciplining the children.
That both parents are restrained from speaking to the children about any aspect of these proceedings or discussing with the children any conflict between the parents.
That the Father is restrained from smoking cigarettes in the presence of the children.
That both parents be restrained from speaking to the children about the other parent in derogatory terms or in an interrogatory manner or allowing any third party to do so.
The Father is permitted to attend the children’s pre-schools, schools and extra-curricular activities for activities and events to which all parents are invited.
That the parents shall communicate by SMS messages in respect of parenting decisions concerning the children.
That each parent shall refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and each party will use their best endeavours to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.
The Mother shall inform the Father by e-mail as soon as practicable of any specialist medical appointment arranged for the children that is not part of their routine care.
(a)The Mother will provide authority to any such specialist to provide the Father with a copy of any report provided.
That in the event that either of the children suffers a medical emergency requiring medical attention while in the care of either parent:
(a)The other parent is to be notified as soon as practicable;
(b)The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable;
That the Mother authorises the children’s school to provide the Father, at his expense if any, with:
(a)a copy of all school reports for the children;
(b)notification of school activities for the children;
(c)parent/teacher nights for the children;
That each parent shall keep the other parent advised of their contact telephone numbers and address and advise the other party of any changes to these details within seven days of such change occurring.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

PAC 5827 of 2016

MR AZIMI

Applicant

And

MS FAEZ

Respondent

REASONS FOR JUDGMENT

Introduction

This final parenting hearing relates to the children Z born 2015, W born 2011, X born 2012 and Y born 2014.

Proposals

The Father’s Amended Initiating Application filed 9 July 2020 seeks final parenting orders, inter alia, that the parties have equal shared parental responsibility for the children; that the children live the Mother when they are not spending time with the Father; and that the children spend time with the Father for effectively five nights each fortnight.
The Mother’s proposals are set out in her Amended Response filed 24 July 2020; the Mother seeks Orders, inter alia, that she have sole parental responsibility for the children; that the children live with her; and that the child spend time with the Father, during school terms, on each Sunday from 1 PM to 7 PM, during school holidays on each Sunday from 1 PM to 7 PM, and each Wednesday from 1 PM to 7 PM, and on special occasions; and that the Father’s time with the children be conditional upon the Father spending time with all the children and with one of the Father’s sisters being present at all times.
The ICL’s proposals are set out in her proposed Minute of Final Orders sent to the Court by email on 19 August 2020 at 5:36 PM; the ICL seeks Orders, inter alia, that the Mother have sole parental responsibility in relation to the health of the children; the children live with the Mother; the children spend time with the Father each Sunday from 1 PM to 7 PM; on Father’s Day from 10 AM to 4 PM; on the children’s birthdays at certain times; and at Eid at certain times; the Father’s time with the children be supervised by either of the following paternal relatives, Ms B Azimi, Ms R, Ms S; and that the children have FaceTime with the Father on Wednesdays between 5:30 PM and 6:30 PM.

Material relied upon

The Father relied upon the following documents:
a)Amended Application for Final Orders filed 9 July 2020;
b)Notice of Risk filed 9 December 2016;
c)Affidavit of Mr Azimi filed 17 June 2018
d)Affidavit of Mr Azimi filed 13 August 2020;
e)Affidavit of Mr Azimi filed13 August 2020;
f)Affidavit of Ms B Azimi filed 13 August 2020;
g)Affidavit of Ms S filed 13 August 2020;
h)Affidavit of Ms A Azimi filed 13 August 2020;
i)Affidavit of Ms R filed 13 August 2020.
The Mother relied upon the following documents:
a)Amended Response filed 24 July 2020;
b)Notice of Risk filed 12 April 2018;
c)Affidavit of Ms Faez filed 5 August 2020;
d)Affidavit of Ms J filed 12 August 2020;
e)Affidavit of Ms B filed 21 May 2018;
f)Affidavit of Ms T filed 8 November 2017.
The following Exhibits were relied upon:
a)Exhibit A: Mother’s Tender Bundle;
b)Exhibit B: ICL’s Tender Bundle;
c)Exhibit C: Family Report by Mr M dated 25 June 2018.

Evidence

Throughout these Reasons the Court will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. The Court will consider other relevant aspects of the evidence under the best interests considerations later in the judgment.
The Father is aged 53 years. The Mother is aged 42 years.
The Mother was born in Country C.
The parties have dual citizenship; the Mother has Australian and Country C citizenship, and the Father has Australian and Country D citizenship.
The parties married in Country C in 2009 and moved to Australia late in 2009.
The Father has extensive family members living in Sydney. The Mother’s extended family live in Country C.
Early on in the parties’ relationship, there were certain periods of time that the Mother, and on occasions the Father with her, returned to live in Country C with the eldest children.
During the parties’ relationship, the Mother was the primary carer of the children.
The Father was diagnosed with sciatica in 2013 and osteoarthritis in 2015. His mobility was affected. His legs were giving in and frequently causing him to fall. He began to use a walking frame most of the time.
In 2018 the Father was diagnosed with an autoimmune disease for which he received treatment on a regular basis, including rehabilitations with a physiotherapist to strengthen his muscles.
During the parties’ relationship, the Mother was the Father’s carer and received a Centrelink carer’s payment. The Mother provided physical care to the Father, including cooking and serving all meals, doing the shopping and transporting the Father to his medical appointments.
In 2015, the Father’s health was gradually getting worse. He was taking excessive amounts of prescription pain medication, along with his smoking of over 40 cigarettes a day.
The Court accepts that in November 2016, the Father verbally abused the Mother and threatened to take the children from her.
The parties separated on about 18 November 2016. The Mother left with the children. The Mother made certain reports of the Father’s conduct towards her to the NSW Police, and an interim ADVO was made to protect her.
In about December 2016 the two eldest children, the parties’ daughters, began to attend a psychologist at Paediatrician E. They saw the psychologist regularly for about two years.
The children did not spend time with the Father alone from the date of separation for a period of about 8 months.
There were a few occasions when the Father told the Mother that he was sorry, that he loved the Mother, that he would change, and he told her that he wanted them to be a family again, and the Mother believed him. On these occasions the family sometimes spent time together for a few hours in a park.
In about July 2017, the ADVO application and certain criminal assault charges against the Father were dismissed after a hearing. Shortly thereafter, the Father told the parties’ two daughters that he had won at court, and that the Mother was a liar.
On 7 August 2017, interim parenting Orders were made by the Court providing for the Father to spend time with the parties’ daughters from Saturday to Sunday, and time with the parties’ sons on Sunday during the day.
On about 17 September 2017, the Father attended School P and, after the principal of School P telling the Father that he was not permitted to take the children with him, the Father began to verbally denigrate the Mother to the principal. The Father began to yell and swear loudly in front of teachers and children whilst verbally denigrating the Mother. When the Mother arrived at the school, the Father began to verbally abuse her in front of the principal and other people. The Father told the parties’ daughters at this time that the Mother had hit and bashed them when they were babies to which these children denied such assertions.
In early December 2017, the Mother completed the parenting program, Parenting program Q.
On 12 December 2017, this Court’s previous interim parenting orders were varied; inter alia, a written undertaking was required from one of the Father’s sisters that the sister would be present at all times during the Saturdays when all four children were spending time with the Father and the changeover occur at a contact centre.
From late 2017 to mid-2018, the Father rarely spent time with the male children in accordance with the Court’s interim parenting orders.
In early 2018, the Department of Family and Community Services (FACS) referred the Mother and the children to Family Service F for assistance in the home. Family Service F stopped working with the Mother and children in mid-2019 after about 18 months. At this time, the Mother was also engaged with a counsellor, Ms G.
On the weekend of 10 and 11 March 2018, the Mother took the male children to spend time with the Father at a park together with a carer who assisted the Mother with the children. At one stage the child Z ran away from the Father while the Father was sitting playing with the child Y. The Mother then watched the carer run after Z to make sure he did not run onto the road.
On the 2018 Easter long weekend, the Father, for a short period, withheld the female children contrary to the Mother’s requests for them to be returned to her. On Monday 2 April 2018, the Mother attended a park with Ms B, an educator from care organisation H, with a view to picking up the female children from the Father. The Father arrived in his car with the female children. The Father was informed that the Mother had not arrived with the male children. At one point, when his car was stationary, the Mother opened the rear off-side passenger door to retrieve X when the Father intentionally caused the car to move forward. The Mother and Ms B managed to remove the female children from the car. The female children had wet themselves and were shaking. The Father verbally abused the Mother. He blocked the Mother’s car with his car. Police attended a short time later.
From about late April 2018 to about April 2019, the Father’s time with the children was sporadic. The Father could rarely arrange for one of his sisters to accompany him and therefore his time could not occur. There were also times that due to the Father’s denigration of the Mother, and the children’s disclosures to her that they were scared of the Father, the Mother did not allow time to occur.
In about mid-April 2019, the eldest child returned home from time with the Father and told the Mother that the Father had asked if the Mother smacked them or screamed at them.
On about 1 May 2019, the Court made interim parenting Orders that the Father see the children supervised by a paternal aunt, each Sunday from 1:15 PM until 5:30 PM.
From April 2019 until the beginning of July 2019, the Mother was occasionally flexible and agreed to the Father’s requests to spend time with the children at her home supervised by the Mother. The Court accepts the Mother’s reasons for permitting this supervised time.
On 30 June 2019, the eldest child returned home from time with the Father and told the Mother that the Father had told her that the Mother was a liar and she was not saving money.
On 7 July 2019, the Father told the Mother that he refused to complete the communication book for his time with the children. The Father got into his car with the children and as he drove away he threw the communication book out the window of the car. The communication book had been the subject of earlier interim parenting Orders of the Court.
The Mother was informed by a teacher, Ms I, that W had told her that the Father was questioning her about the Mother and saying bad things about the Mother. The eldest child had told the teacher that she felt butterflies in her stomach and she wanted the Father’s behaviour to stop. The eldest child later told the Mother that the Father denigrated the Mother to her. Later, the Mother ceased facilitating the Father’s time with the children because she believed that it was not in the children’s best interests to be spending time with him. Court Orders were made in the absence of the Father on application by the Mother on 21 August 2019. Ultimately, on 6 November 2019, the Court reinstated the Orders made on 1 May 2019, which provided for the Father to spend time with the children each Sunday afternoon in the presence of one of the paternal aunts.
In early November 2019, the eldest child told the Mother that during visits with the Father the Father denigrated the Mother to them. When the eldest child asked the Father to stop he did not do so.
From 6 November 2019 onwards, the Mother made the four children available to the Father on Sunday afternoons in accordance with the Court Orders. The Father frequently said to the Mother that he could not have all four children at once because it was too much for him and told the Mother he preferred to just take the female children.
The Court is not satisfied, on the balance of probabilities, that the Father was neglectful of the child Z when the child was at the beach on 29 December 2019.
On about 19 January 2020, the Father spent time with the children at a restaurant without the paternal aunt being present. One of the children was misbehaving and the Father pinched the ear of this child for about a second, then let go of her ear. The Court is not satisfied, on the balance of probabilities, that the Father exercised excessive physical chastisement of any of the children at the restaurant. The Court is not satisfied, on the balance of probabilities, that he has otherwise previously exercised excessive physical chastisement on any of the children.

In late March 2020, the COVID restrictions commenced and the Father asked the Mother if he could isolate at her residence. The Mother agreed. The Father stayed at the Mother’s residence regularly from about late March 2020 to late June 2020. The Father slept on the couch. Whilst the Father stayed at the Mother’s residence the Father was present when the support services who assist the Mother with the children’s care were present. One person who assisted the Mother was Ms J from Organisation K; Ms J was primarily a carer for the child Z but not exclusively. During this period, the Father told the Mother that he could see that Z needed a lot of help.
In about April 2020, the Father fell over in a residence at Suburb L and could not get up off the floor. He requested the Mother’s assistance. The Mother attended upon this residence. The Father told the Mother that his legs had given in and that he just could not get up. The Mother told the Father that he needed to go to the doctor. The Father said, “No, it happens all the time, it’s just part of my condition.”
In May and June 2020, the Father told the Mother on several occasions that he wanted the Mother to stop studying, he wanted the Mother to stop the work placement, and he wanted the Mother to be just there for the Father and the children 100%. Thereafter, the parties started to argue all the time. The Father lost his temper, about three times each week. The Father told the Mother that she was a bad mother, that she neglected the children, and that she was only being a mother 50% of the time. The Mother requested the Father to leave her residence. In about late June 2020, the Father left the Mother’s residence.
Between 26 June 2020 and 27 July 2020, the Father only spent time with the children on Sunday afternoon on one occasion.
The Mother has not lived permanently in Country C since 2001.
The Mother and children are supported by the Support Service M, which is funded by the Department of Communities and Justice to support vulnerable families. Their caseworker is Ms N and she has supported the family from November 2019. The main things that Support Service M does is to support the Mother with the children’s education, to address financial hardship issues, and to help the Mother with housing issues. Ms N has helped the Mother obtain community grants and scholarships to support the children’s studies.
The children are all supported by Support Service O. The children see a counsellor.
The children, apart from Z, all have regular sessions with their school counsellor to support their emotional well-being.
The child W is in Year 4. She is doing well in her studies. She is a healthy, confident and mature child.
The child X is in Year 2. She is progressing well in her studies. She was diagnosed with ADHD in 2017 and this is managed with a range of therapies.
The child Y suffers from asthma. He is in Year 1. He has behavioural issues. He sees a counsellor every week.
The child Z was diagnosed with autism spectrum disorder, level 2, in 2018. He suffers from Oppositional Defiance Disorder, a speech delay and other issues including anxiety and aggressive behaviour. He is a recipient of an NDIS plan. He requires extensive support to manage his behaviour, to communicate and to regulate his emotions. In a support letter for NDIS review, a psychologist stated, in relation to Z, that a support worker was highly recommended as Z was “a runner” and of high risk of harm to himself and others. Z runs off a lot which is very challenging when the Mother is outside of the home.
The Mother sees a psychologist every fortnight to help manage her anxiety including in relation to the stress of these court proceedings.
The Mother is in her fourth year of a degree at Universty P. The Mother studies part-time. The Mother wishes to return to the workforce when she completes her studies. She hopes to finish in 2021.
The Father does not pay child support for the children.
The Mother does not have any extended family in Australia, however, she has a lot of community support.
The Father usually uses a walking stick.
The Mother gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The Mother stated that the male children require a lot of attention in that they are hyperactive. She gave the example that when she is taking them to school she might need to pull over the car because they would remove their seat belts and open the windows.
The Mother stated that the child X has been diagnosed with ADHD. She is not on medication. She fidgets and requires a lot of attention, and is keen to get attention. She is hyperactive. She has a concentration problem. She has problems socialising with other children. A lot of time needs to be spent comforting her, otherwise she will try to bully her siblings or other children.
The Mother stated that if she was not studying and Ms J was not assisting her, she could cope caring for the children alone.
The Mother stated that she sees her treating psychologist once a month.
The Mother stated that the children maintain regular contact with her overseas family through the Internet. The Mother stated that if she travelled overseas to visit her family she would stay at her family’s house in Country C. The Mother’s family overseas comprise the maternal grandparents, sisters, niece and nephews.
The Mother stated that she seeks an Order that the children’s time with the Father be in the presence of one of his sisters because the Father has issues and the children have behavioural and health issues. The Mother stated that the children are quite challenging in their behaviours and require a lot of attention and a lot of time.
The Mother stated that she has a respectful relationship with the Father’s sisters. She stated that the Father’s sisters are capable of supervising the children. The Mother stated that she would want to speak to the Father’s sisters about her proposed Order relating to supervision.
The Mother stated that the Father had previously been resistant to mental health treatment for some of the children; she stated that the Father does not believe in mental health. The Mother stated that she did not believe she could reach agreement with the Father on a major decision for one of the children relating to mental health treatment.
The Mother stated that she believed she could reach agreement with the Father in relation to a choice of school for a child. She stated she would be happy to discuss with the Father the religious upbringing of the children.
The Mother stated that she made observations of the Father’s physical capacities when he was living in her residence earlier in the year. She stated that she needed to help the Father with cooking duties including holding pots, plates and cutlery. She stated the Father was not able to move or walk quickly within the home. She referred to the child Z being hyperactive and running, and that the Father had asked the Mother to go and get Z. She stated that her residence has a big backyard and the children sometimes play there. She stated that she never saw the Father playing with the children in the backyard.
The Court accepts the evidence of Ms J. The Court does not propose to set out the entirety of her evidence. She has provided care for the children since August 2018. She observed that the Mother was attentive to the children’s needs. The Mother takes on board her comments in relation to the children. She has not seen the Mother be violent towards the children. She has observed the Mother works hard with the children on a routine. She observed the Father always walked with a walking stick. She observed that the Father did not have good mobility, he limps and is slow. The eldest child, in early 2020, after she had spent time with the Father, told her that the Father had denigrated the Mother.
Ms J, in oral evidence, stated that the Mother and children were a family with challenging circumstances. Explaining, she stated that the Mother needed her help because her studies took time from her and the Mother needed someone to take care of the children, especially with the children with special needs, like Z and X and with Y’s behavioural issues. She stated that Z needed one-on-one care most of the time.
The Court accepts the evidence of Ms B. The Court does not propose to set out the entirety of her evidence. In particular, the Court accepts the evidence of Ms B both in relation to the incident of 2 April 2018, and in relation to the disclosure made by the child X to Ms B on 27 April 2018, relating to the Father smacking that child because she said to the Father that she wanted to live with the Mother.
The Court accepts the evidence of Ms T. The Court does not propose to set out the entirety of her evidence. In particular, the Court accepts her evidence in relation to the incident on Sunday 17 September 2017.
The Father stated in his Affidavit filed 18 June 2018 that it is his God-given right to be a part of his children’s lives on a daily basis.
The Father has been a disability pensioner since 2018.
The Father admitted that he can get upset and raise his voice.
The Father gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The Father agreed that the children were very active.
The Father agreed that he suffers from poor health.
The Father agreed that he requires physical therapy.
The Father told Dr U 12 March 2020 that he suffered fatigue with walking.
The Father smokes cigarettes; a packet of 40 cigarettes lasts him two days.
The Father agreed that after an ADVO was made he said to the Mother, “I wish I did report you and you would have been deported.”
The Father agreed that during the parties’ relationship he had called the Mother a dog.
The Father agreed that in an argument with the Mother in November 2016 he told the Mother that she was fucking evil and a fucking liar.
The Father agreed that in about November 2016, he sent a text message to one of his sisters stating, inter alia, that he hated the Mother who was a fucking bitch, and that he was going to teach the Mother a lesson she would never forget, “knowing that they, the girls, are with her makes me suffer”.
The Father agreed, in relation to the incident on 17 September 2017, that he had called the Mother a bitch in front of a teacher and the children.
The Father agreed that he called the Mother a dirty pig, in the presence of the children, in the context of criticising the Mother in relation to the state of cleanliness of the children’s clothes. He agreed that that was a derogatory comment.
The Father stated that he was on an NDIS plan, approved in December 2019, and he is disabled. He stated that the NDIS plan included the provision of equipment, such as a recliner bed and chair, and a shower chair. It also includes physiotherapy for body strengthening.
The Father agreed that it would be helpful for him to have assistance in caring for the children. The Father agreed that his extended paternal family will not be living with him in his new premises.
The Father last spent overnight time with the children, unsupervised, in 2017.
The Father’s sisters Ms A Azimi, Ms B Azimi and Ms C Azimi gave evidence, including oral evidence. They each stated, in oral evidence, that they were not aware that there were documents before the Court suggesting that the Father sometimes says inappropriate things in front of the children.
Ms A Azimi stated that she wears hearing aids and that with her hearing aids there were times when she still continued to have difficulty in hearing what people are saying. In light of this hearing difficulty she would not be a suitable supervisor.
The Court is not satisfied, on the balance of probabilities, that the Mother has previously exercised excessive physical chastisement on any of the children.
The Father’s brother Ms S gave evidence, including oral evidence. The Court is not satisfied, on the balance probabilities, that the Father and the Mother were sitting on each other’s laps at the family wedding. The Court is satisfied that he would probably be a suitable supervisor.
The Court is not satisfied, on the balance of probabilities, that the Father has previously assaulted the Mother. The Court is not satisfied, on the balance of probabilities, that the Father has previously perpetrated coercive and/or controlling family violence upon the Mother.

Family Report

The Family Report was prepared by Ms M on 25 June 2018. The parties and the children (except Z) were interviewed by the family report writer on 14 June 2018.
The family report writer, as to the issues in dispute between the parties, stated that both parties accuse the other party of spousal violence, inappropriate discipline/violence towards the children, and the manipulation of the children in order to engender the children’s adverse view of the other parent.
The family report writer found the Father difficult to interview and that he appeared to lack the ability and/or inclination to answer many of the questions asked of him in a direct manner. The family report writer stated, in this context, that throughout substantial periods of the interview, despite the questions asked of him, the Father appeared particularly motivated to recount the Mother’s numerous prior and possibly present relationships, the Mother’s alleged deceit of those partners including of himself, and of the Mother’s motivations to return to the Middle East with the children to work now that she has the benefit of an Australian passport.
The Father told the family report writer that he has suffered from a long and debilitating disease. He told the family report writer that this disease has severely affected his mobility (he uses a walker on wheels), his energy levels and overall well-being. However, he reported a recent successful operation on his kidneys, and on special advice, the Father was of the belief that he should, over the next few months, improve to a full recovery.
The Father reported to the family report writer that he resides with his sisters at Suburb O. He is presently unemployed due to his adverse health circumstances, and he is not in a relationship.
The Father strenuously denied to the family report writer that he has physically and psychologically abused the Mother and the children. The Father in denying this behaviour, maintained to the family report writer that the Mother has abused him and the girls, and continually seeks to alienate the children from him through her lies and manipulation.
The family report writer opined that, as a subjective observation, he felt that the Mother was somewhat motivated to present the Father in a particularly negative manner. However, he stated that the Mother’s answers to questions put to her were by and large appropriate to the questions asked of her.
The Mother maintained to the family report writer that the Father had been violent towards her and the children and had, post separation, continued his verbal abuse of her and the children as well as his manipulation of the children against her.
The Mother denied to the family report writer the Father’s allegations that she had been violent to him or the children during the relationship.
The child W, seven years old, reported that she enjoys living with the Mother.
This child told the family report writer, on being asked if she knew anyone who does the wrong thing, that it was her father. When asked if she would want to stay with the Father, she indicated that the Father would smack her if she said no.
This child told the family report writer that the Father denigrates the Mother and herself; she does not like to see the Father, “I don’t like to talk to him”; she was scared of the Father; the Father makes her say bad things about the Mother; and the Father says that the Mother smacks the children but when asked if this was true this child stated that the Mother does not smack her.
This child was asked to draw a picture of whatever she liked. She drew a picture of herself and her family under a rainbow but did not include the Father, “as I’m not happy to be in a photo with my father”.
The child X (X) was interviewed by the family report writer.
This child, according to the Mother, has ADHD, low self-esteem, and behavioural issues when she is with the Father. She reported that this child sees a psychologist on a monthly basis to assist her with her ADHD.
This child stated she was happy living with the Mother. She states the Mother makes sure that they are safe.
This child, in response to a question on seeing the Father, became less cheerful than she had otherwise been, and replied, “No. I only like talking to him on the phone.”
This child, in relation to the Father, sometimes in the absence of questioning, stated: the Father makes her lie and say bad things about the Mother; she recalled the Mother was with the child Z and the Father was bashing the Mother and Z started to be naughty; the Father tells her about Court, and tells lies and bad things about the Mother. When the family report writer asked what the Father tells her about the Mother, the child stated that the Father had told her to say that the Mother smacks her but the Mother did not smack her as she is fair and kind.
This child also drew a picture of the family and herself which did not include the Father. On questioned about her father being missing from the drawing this child stated that she did not like to draw the Father.
The child Y was interviewed by the family report writer. When asked if he sees the Father, this child replied, “not really”. When asked if he would like to see the Father this child replied no as the Father smacks them.
The child Z was not interviewed by the family report writer due to his age, developmental level and limited speech.
The Father stated to the family report writer that he was concerned about the Mother’s mental abuse of the girls, and her encouragement of them to lie about his unsuitability as a parent.
The Father told the family report writer that the Mother loves the children and was fantastic with the children when he was there.
The family report writer stated that the waiting room and childcare room observations show the Mother to be caring and responsive to the children’s needs.
Due to the Father’s mobility difficulties he remained seated on the playroom lounge for the entirety of the observation sessions with the children.
In relation to the observation session with the female children, the Father proceeded to give the girls a lecture about lying and then asked the girls if they were lying.
The Father said to the eldest child W, “Why are you scared of me?” “What have I ever done to you?”
The Father remarked to the girls; “I hate your shoes” to which the girls replied, “Mum tells us to wear them.” The Father then asked the question, “What else did your mum tell you to do?”
At the Father’s request W gave him a kiss. In requesting a kiss the Father asked for a “wet one”.
The Father then asked the girls, “Why don’t you talk to me on the phone?” (In cross examination the Father stated he saw nothing wrong in asking the female children this question).
The Father asked them, “Do you hate your dad?” (In cross examination the Father was asked whether he thought it was appropriate to ask them that question, to which the Father responded, “I didn’t take it as anything, no.”)
The family report writer observed there was no evidence that the girls feared the Father.
The Father asked W if she wanted a “pash”. This child asked the Father what that was. The Father replied that it was a kiss.
Towards the end of the observation, the Father began a line of questioning on whether or not the girls like to see him.
In relation to the observation session with the male children, the boys ran to the Father initially and greeted him with a hug and kiss.
Y at one point said to the Father that he did not want to kiss him. To which the Father replied, “Is that what your mum told you?”, “Who told you not to kiss me?” to which Y replied, “mum”.
The Father asked Z for a kiss which Z spontaneously complied with.

The boys began to move away from the Father and became interested in the playroom surrounds to which the Father said, “Did you come here to play or to see me?”
After the child Y told the Father that he loved him, the Father went on to question Y, “How much do you love me?”
The Father later asked Y “Who told you not to kiss me on the lips?” to which Y said, “Mum told me not to kiss you on the lips.”
Under the heading “Evaluation”, the family report writer stated, inter alia, that the parental relationship between the parties was virtually non-existent.
The family report writer stated that neither party was able to identify how and when an improvement in the parental relationship might occur. The family report writer stated that at the time of assessment there would appear very little foreseeable chance for the development of reasonable parental communication between the parties.
The family report writer stated that interview data as well as observations clearly indicated that the children’s primary parental relationship was with the Mother. She stated that the children’s relationship with the Father was less clear than was their relationship with the Mother.
The family report writer stated that the child W’s reports of her relationship with the Father were entirely negative. She stated that this child’s interview statements and the non-inclusion of the Father in the family drawing were somewhat at odds with her observed behaviour in the playroom with the Father. The family report writer stated that although there was an initial degree of awkwardness with the Father, the latter part of the play session indicated a relationship of some affection and that the child enjoyed being with the Father. There was no observable evidence that this child was in fear of the Father.
The child X’s interview reports of her parental relationships were unequivocal. Her reports of her relationship with the Father were all adverse. Her interview statements and the non-inclusion of the Father in the family drawing were somewhat at odds with her observed spontaneous behaviour in the playroom with the Father. From the play session, it was observed that this child’s spontaneous interaction with the Father indicated a relationship of affection and pleasure being with him.
The family report writer stated that observations of the male children in spontaneous interaction with the Father showed that they enjoy being with him and related to the Father in a very happy, energetic and affectionate manner.
The family report writer stated that overall the observed spontaneous interaction between the children and the Father was observed to be favourable. However, the family report writer stated that there were real concerns about the quality and content of the Father’s verbal interactions with the children. He stated that the Father’s emotionally loaded and at times negatively framed statements and questioning of the girls about topics such as whether or not they tell lies (for the Mother), asking them if they loved him, asking them about the Court, saying that he hated the girls shoes and asking them who had made them wear the shoes, are assessed as highly inappropriate. The family report writer stated that there was a real possibility of emotional damage to the children if they were to be subjected to continued exposure to these types of conversations. (In cross examination, the Father stated that he did not have any concerns that anything he said to the female children at the family report interview or outside the family report interview might have caused emotional damage to them.)
The family report writer stated that, in short, within the overall context of the potential for a favourable paternal relationship with the children, the Father was “his own worst enemy”. He stated that the observed paternal verbal interactions with the children provide support to the Mother’s contention that the Father is inappropriate with and manipulative of the children.
The family report writer stated that there was no evidence, either on the basis of interviews or observational data, to conclude that the children were either physically or emotionally unsafe with the Mother.
The family report writer stated that overall, on assessment, no evidence emerged to suggest that the children feared paternal physical abuse.
As to the issue of whether or not the children are emotionally safe with the Father, and whether or not the children spending time with the Father is in their best interests, the family report writer stated that observations of the Father’s inappropriate interaction with the children could reasonably lead to a conclusion that paternal time should be supervised until the Father successfully completes a course for separated parents and can demonstrate to an appropriate supervisor that he is able to interact with the children in an appropriate and constructive manner that would not imperil their capacity for the preservation and healthy development of their significant parental relationships. Until such time as this occurred, the family report writer stated that it might be appropriate to favourably revisit the provisions of the 12 December 2017 Orders as a basis for further orders.
The family report writer gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The family report writer stated that during the whole observation session (for the family report) that the Father was just highly inappropriate with the girls in the way he spoke with them.
As to the statement by the family report writer in his report that the Father was his own worst enemy, the family report writer explained that he thought there was potential for a favourable and constructive relationship between the children and the Father, because clearly they had some affection for the Father, but the Father just seemed to go out of his way to sabotage it with inappropriate comments and questions.
The family report writer stated that the child W’s statements to the school counsellor on 28 August 2019, regarding, for example, the Father verbally denigrating the Mother in this child’s presence (see page 16 of Exhibit A) were consistent with his observations from the family report interviews. The family report writer stated that if the Father is denigrating the Mother to the children that that undermines the children’s relationship with their primary carer, the Mother.
The family report writer referred to the awkwardness of the girls when the Father had asked them for a pash.
It was drawn to the family report writer’s attention that the Father, in oral evidence, had agreed that he had called the Mother a dirty pig in front of the children, a thief and a bitch. The family report writer stated that that sort of behaviour led to him having substantial concerns. In this context, he referred to the Father’s lack of control, a lack of insight, a lack of understanding of the children’s needs, and a lack of an awareness that the children have a loving relationship with the Mother. He stated that it certainly undermines the children’s primary relationship with the Mother and can cause them psychological damage. He stated, however, that such behaviour by the Father was more likely to cause psychological damage to the relationship that the children have with the Father; it damages the relationship with the parent doing the denigrating.
The family report writer stated that if the Father, having denigrated the Mother to the children, expressed no concern that he had done so, that would cause a lot of concern to the family report writer.
The family report writer stated that, having been provided with updating material since the preparation of his family report, it was concerning that the Father was (still) not able to interact with the children in a constructive and appropriate manner. The family report writer stated, in this context, that he would have some concerns with the Father’s time building up to overnight time. He also stated that the Father’s limited physical capacities also caused him concern as to whether the Father would be in a position to provide the care that might be needed for the children.
The family report writer stated that if the Father is still denigrating the Mother he did not know what courses were going to be particularly beneficial (for the Father) at this point in time.
The family report writer gave this evidence:
The Court’s in a position where it needs to make final orders for these four children until they’re 18 years old. Would you have a concern with the Father spending periods of unsupervised time with the children if it was limited to daytime only time?---Sorry, would I have concerns?
Yes, about the Father spending unsupervised time with the children if that time was limited to, say, five hours during the day?---I think on what I’ve had put before me and reading the bundle – the bundles that were put to me, I think I would prefer daytime only paternal contact.
HIS HONOUR: And why would you say that?---Because I have some concerns about the Father’s capacity to provide the day to day care for the children due to his physical circumstances, which I’ve accepted at face value. And also that he hasn’t really moved in his capacity to relate to the children. I think the Father has the capacity to spend time with the children. The children obviously enjoy that time and the Mother didn’t seem opposed to it, as of back two years ago, that daytime might be constructive. But I still have concerns about the Father’s denigration of the Mother. Whether supervised or unsupervised, I think I would prefer a supervised set of circumstances by the aunties or an uncle, I think there is, without being able to comment on their capacity to supervise.
Well, if you assume that the Father’s sisters – the children’s aunties – are aligned with the Father, that might cause the Court to have a concern about whether the aunties have any protective capacity to prevent the Father from, for example, speaking ill of the Mother?---Yes, that would be a concern, your Honour. You would sort of hope that as adult – as reasonable adults and, look, I can’t comment in this regard, that they would see that as something that, you know, the Father ought not to be doing and it’s harmful to the children.
MS SAW: What if there was a concern about the aunts – well, the situation is there are present court orders requiring the aunts to be present during the Father’s time with the children. There’s some evidence before the Court to suggest that that hasn’t perhaps always been happening. Do you have any comment in respect of that, given what you’ve just said about having the aunts involved?---Yes, I would be concerned – I would be wanting to – would want the Court to be assured that the supervision is actually what you might term proper supervision.
And how important in your view would it be for the aunties or supervising family members to understand the reasons why the Father’s time needs to be supervised?---Yes, critically important.
A short time later the family report writer gave this evidence:
MS SAW: Mr M, I will just indicate that the Mother has put forward a minute of orders which proposes that the Father spend time with the children from one to seven every Sunday, with a paternal aunt present. The independent children’s lawyer is still formulating her view. What the independent children’s lawyer is wondering is whether, given what you’ve just said about the Father’s time being during the day time and your preference that it be supervised by a paternal aunt, whether if we broke the time down to a shorter period of time during the day – for example, a period of three hours on a Wednesday after school – do you think it would be safe for the children if that time – because it’s a shorter period – were to not be supervised?---Asking me to crystal ball that one. From what I saw in my observations, I would still have reservations. The observation period was very short and the Father was really not able to exercise much self-control. Whether you take a leap of faith that he would, whether the children with their increasing maturity have developed ways to deal with and manage the Father, of which I saw some evidence in the observation sessions, yes, it could be appropriate. My preference would be for more frequent, shorter periods of time, as an overall view.
So more frequent shorter periods of time if it wasn’t supervised?---I have reservations.
You’ve got reservations if it was to be unsupervised, even…
HIS HONOUR: That is, you’ve got reservations that even with short periods of time unsupervised, the Father couldn’t control himself?---Yes. Yes, exactly, your Honour.
And he might say inappropriate things to the children?---From what I’ve observed and what I’ve been told. Yes, your Honour.”
….
HIS HONOUR: If going forward, Mr M, the Father was to spend daytime time with the children, perhaps weekly, is there a reasonable prospect that if that was to occur the children’s positive relationship with the Father can be maintained? Yes. Yes, your Honour.
….
But perhaps if I can – if I ask you this: the Mother’s proposal is that the Father spend daytime with the Father every Sunday from one to seven. Do you think that that would allow the Father to maintain a meaningful relationship with the children?---Yes, but other times in addition to that might be appropriate as well.
Okay. What if there was to be some midweek time between the Father and the children; would that also----? ---Yes, that would be appropriate.
… be consistent?---Again, I would prefer it supervised.
Okay. And, of course, with some Facetime in between as well?---Yes, appropriate. That all kind of really depends on the behaviour of the Father really.
Yes?---And a leap of faith here.
…..
MS POPOVSKI: So potentially he’s organising assistance because his children need this kind of assistance as well and clearly he does. Would you be averse to, if the sisters were not available, then a professional person be available with the Father when he’s spending time with the children?---No, I wouldn’t be averse to that and, look, depending on the aunties, it may even be preferable to have a professional person.
The Court accepts the evidence of the family report writer.

Relevant Legal Principles

Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The best interests of the children

Section 60CC considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration

The children have meaningful relationships with the Mother and would benefit from a continuance of those relationships. The children’s primary parental relationship is with the Mother.
Subject to the Court’s comments below, the children have meaningful relationships with the Father. The children would benefit from a continuance of those relationships provided it is emotionally and physically safe for them to do so. In this context, the Court should state, however, that the Father’s denigration of the Mother to the female children has at times caused a strain in those children’s relationship with the Father.
Should the children spend supervised time with the Father each Sunday from 1 PM to 7 PM (including during school holidays), on Wednesdays 1 PM to 7 PM during school holidays, on special occasions as proposed by the Mother, together with FaceTime as proposed by the ICL, then there is a real prospect that the children’s present relationships with the Father can be maintained. The evidence of the family report writer is consistent with this view.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The Father is verbally inappropriate with the children, and he is manipulative of them; there is an unacceptable risk of psychological harm posed to the children if they spend unsupervised time with the Father. For example, the Father denigrates the Mother in front of the children, both in the presence of the Mother and when she is not present; a significant example of the Father denigrating the Mother in the presence of the children was the Father’s behaviour at School P on 17 September 2017. The Father lacks insight into the potential emotional harm caused to the children by such above behaviour.
The above unacceptable risk can be addressed and minimised by the children spending limited weekly daytime time with the Father, as discussed above under the meaningful relationship primary consideration, and supervised by one of the Father’s siblings (namely, either of Ms S, Ms B Azimi or Ms R).
The Father has significant physical disabilities preventing him from adequately caring for the children on his own, in particular the male children. Inter alia, the Court accepts the health professional material contained in Exhibits A and B in relation to the Father’s health and treatment. The Father has, inter alia, significant difficulties with his mobility; there is an unacceptable risk of physical harm posed to the children through neglect if spending unsupervised time with the Father. This risk can also be addressed and minimised by the children spending limited weekly daytime time with the Father, as proposed by the Mother, and supervised by one of the Father’s siblings referred to above.
The Court has considered whether, with supervision of the children’s time with the Father by one of his siblings, the Father’s time could be more extensive and potentially embrace overnight time. The Court is of the view that such increased time would significantly increase the above unacceptable risks coming to pass even with such supervision, taking into account in particular the Father’s lack of control in relation to being verbally inappropriate with and manipulative of the children, as observed by the family report writer. The Court also observes, in this context, that the Father’s sisters who previously provided supervision, pursuant to the Court’s interim parenting Orders, provided such supervision in the context of daytime only time between the children and the Father. Further, there was no significant evidence before the Court to suggest that the Father’s siblings would be prepared to provide extensive supervision in the overnight context as opposed to daytime supervision.

Further, in relation to the Court’s proposed orders for supervision of the children’s time with the Father, as referred to above, the Mother’s proposed orders would permit the children’s daytime time with the Father to be spent outside the Father’s home whereas the ICL’s proposed orders would limit the children’s time to occur in the Father’s home. Such proposed restriction by the ICL, in the view of the Court, taking into account the proposed supervision, would impose an unnecessary restraint on the children’s time with the Father.
The Father seeks orders enabling him to spend in the aggregate 5 nights each fortnight with the children, equal time with the children during school holidays, and time with them on special occasions. He seeks that such time be unsupervised. Having regard to the Court’s discussions above, again, the children would be exposed to an unacceptable risk of harm if spending such time with the Father.
The Court refers to the evidence of the family report writer which is consistent with the above findings of the Court.
The Court refers to the evidence relating to the Father intentionally causing his car to move forward when the Mother was trying to take one of the female children out of his car in April 2018. This conduct by the Father was unacceptable, however, the Court is not persuaded that such conduct is likely to be repeated by the Father.
The Mother’s care of and attention to the needs of the children has been quite satisfactory, both during the relationship and post separation. She has taken significant steps to address the physical and psychological needs of the children. She has been studying for a tertiary qualification, and with insight, she has obtained the significant assistance of very helpful and dedicated carers to help her care for the children on a day-to-day basis.
The Court gives significant weight to this need to protect primary consideration.

Section 60CC(3) - Additional Considerations

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

The Court would not give significant weight to the adverse views of the Father expressed by the female children at the family report interviews, and in this regard the Court refers to the evidence of the family report writer. The Court refers, in particular, to the positive experience of the children spending time with the Father at the family report interviews.
However, having said that, the Court finds that the female children, with justification, have related to the Mother and other persons in authority their displeasure with the Father denigrating the Mother when spending time with the Father.

(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)

The Court refers to its discussion above under the meaningful relationship primary consideration.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

Both parents would appear to have taken such opportunities, whilst acknowledging that there were significant periods when the Mother did not facilitate the children spending time with the Father by reason of her concerns for the children’s safety.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

The parties have maintained the children when the children were in their respective care.

(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

The Court refers to its discussion above under the meaningful relationship primary consideration. Should the children spend time with the father, as discussed above under the meaningful relationship primary consideration, there should be no adverse affect upon the children’s meaningful relationship with the mother.

(e) The practical difficulty and expense of a child spending time with and communicating with the 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

Not applicable.

(f) The capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

The Court refers to its discussions above under the need to protect primary consideration.

(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

The child X has ADHD. The child Z has autism level 2, and needs significant care with his behaviour. The child Y has some behavioural difficulties. The male children are hyperactive. The Court refers to the evidence of the Mother and Ms J in relation to the characteristics of the children.
The Father does not believe in the efficacy of mental health treatment for the children.

(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

Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

The Court refers to its discussions above, including under the primary considerations.

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

The Court refers to its discussions above under the need to protect primary consideration.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter

An interim ADVO was made following the parties’ separation, against the Father for the protection of the Mother. Following a contested hearing, in 2017, a final ADVO was not made.

(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

In the view of the Court, the Court’s proposed time-with Orders, as discussed above under the meaningful relationship primary consideration, as compared to the Father’s proposals, would be least likely to lead to the institution of further proceedings in relation to the children. In this regard, the Court refers to its discussions above under the need to protect primary consideration.

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

The Mother seeks Orders that the present airport watch list order be removed so as to enable the Mother to travel overseas with the children, in particular to visit the Mother’s extended family in Country C. The ICL seeks an Order that the children’s names remain on the airport watch list.
The Mother has not lived permanently in Country C since 2001. She had previously stayed there with her family on a fairly regular basis. The Mother does not own a company or any property in Country C. The Mother has a close relationship with her family in Country C. She has no extended family in Australia. The Mother states that she does not wish to return to Country C (to live). The Mother states that she would like to have the option to spend time with her family in Country C, being her only extended family, on occasion. The Mother states that the opportunities for herself and the children are greater living in Australia compared to Country C.
The Mother is studying here in Sydney doing a degree at University R; she has not yet finished that course. She states she wants to work here after she completes her university course. The children have spent the majority of their lives living and attending schools in Sydney. The Mother is presently doing a 600 hour work placement for a non-government organisation as part of her tertiary studies. The Mother receives significant Centrelink benefits. She has significant community support.
The Mother does not own property in Australia.
In final submissions, the Court was informed that Country C was not a party to the Hague Convention. Counsel for the Mother then informed the Court that although Country C ratified the Convention 10 July 2017 and it entered into force on 1 October 2017, as of 6 July 2020 it was not in force between Australia and Country C.
The children have regular contact with the Mother’s extended family in Country C over the internet.
Whilst the Court would assess the chances of the Mother and children travelling to Country C to live and not returning to Australia as low, nevertheless the Court has a significant concern that if it was to remove the airport watch list order there is a real possibility that the Mother may travel to Country C with the children and remain there for a not insignificant period, such as a period of at least 2 months, perhaps longer. In this context, the Court observes that the Mother is very keen to be reunited with her extended family in Country C with whom she has not spent time for a considerable period, and further, the children have had little contact with them also for a considerable period. In such circumstances, taking into account the Court’s proposed time to be spent between the children and the Father, there would be a real risk that the children’s relationship with the Father could be detrimentally affected. It will not be in the best interests of the children to remove the airport watch list order at this time. It may be, in the future, particularly following the Covid19 travel restrictions being removed, and the Mother’s financial circumstances permitting, that the Mother could institute an application to travel with the children to Country C for a discrete holiday period which the Court could consider.
In final submissions, the Father proposed, through his solicitor, that if the Court was minded to order that the children spend time with him on a Sunday afternoon (which he formally opposed in terms of the final orders that he sought) he would prefer that the children spend time with him on a Saturday afternoon. The Mother’s counsel informed the Court that the child Z does his therapies on a Saturday (which the Court would regard as important for this child), the child Y does swimming on Saturday, and the child W has tutoring in the afternoon on the Saturday. The Father’s solicitor did not challenge these assertions as to the child’s present commitments on the Saturday. The Court’s previous interim Orders of 1 May 2019 provided for daytime time between the children and the Father on a Sunday. It will not be in the best interests of the children to spend time with the Father on Saturdays by reason of these apparent commitments.

Parental Responsibility

The Father sought an order that the parties have equal shared parental responsibility for the children. The Mother sought an order that she have sole parental responsibility for the children. The ICL sought an order that the Mother have sole parental responsibility in relation to the health of the children, subject to notifications to the Father by the Mother of her proposed health decisions and the Father responding to such proposals for the Mother’s consideration.
It will be in the best interests of the children that the Mother have sole parental responsibility in relation to the health of the children, with the Mother to notify the Father of her proposals in this regard and affording the Father the opportunity of responding to the Mother’s proposal for her consideration.
The Court is otherwise satisfied that there is a reasonable prospect that the parties can reach agreement in a timely fashion on other major decisions, apart from health, for example choice of schooling, to be made in relation to the children.
The three youngest children in particular have significant needs in relation to their mental health and behavioural difficulties. The Father has not significantly supported the Mother in relation to mental health and behavioural treatment for the children; he does not believe in the utility of significant mental health and behavioural treatment for them. It is unlikely that the parties could reach agreement in a timely fashion in relation to major decisions to be made for the children in relation to health and behavioural related treatment. There is a significant risk that the parties would experience conflict in resolving such issues between them, which may well impact upon their parenting capacities for the children and impact the children.
In relation to s 65DAA of the Act, it will not be in the best interests of the children to be subject to an equal time arrangement and in this regard the Court refers to its discussions above under the primary considerations, in particular the need to protect primary consideration. An equal time arrangement would probably be reasonably practicable.
As to substantial and significant time, it will not be in the best interests of the children to spend time with the Father such as would constitute substantial and significant time under the Act and in this regard the Court again refers to its discussions above under the primary considerations, in particular the need to protect primary consideration. Substantial and significant time would probably be reasonably practicable.

Summary

Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:
(1)    That all previous parenting Orders in relation to the children W born 2011, X born 2012, Y born 2014, and Z born 2015 (“the children”) be discharged.
(2)    That the Mother shall have sole parental responsibility in relation to the health of the children and subject to the following:-
(a)     That when making health decisions for the children the Mother is to email the Father the nature of the decision to be made and her proposal for making such decision; and
(b)    Within three days of receiving such email, the Father is to respond to the Mother outlining any proposal for the Mother’s consideration prior to her making such decision; and
(c)     The Mother within a further three days of receiving the Father’s email, shall advise the Father of her decision;
(3)    That subject to Order 2 above, the parents shall otherwise have equal shared parental responsibility for the children.
(4)    That the children live with the Mother.
(5)    That the children shall spend time with the Father as follows:
(a)     During school terms:
(i) On each Sunday from 1.00pm to 7.00pm.
(b)    During school holidays:
(i)      On each Sunday from 1.00pm to 7.00pm; and
(ii)    On each Wednesday from 1.00pm to 7.00pm.
(c)     On special occasions:
(i) In year’s ending with an even number, on the first day of Eid from 1.00pm to 7.00pm;
(ii)    In years ending with an odd number, on the second day of Eid from 1.00pm to 7.00pm;
(iii)   On each of the children’s birthday, if a school day from the conclusion of school (or otherwise 3.30pm) to 5.30pm if the children are not in the Father’s care and if a non-school day, for a period of three hours as agreed between the parties in writing or otherwise from 10.00am to 1.00pm;
(iv)   On the Father’s birthday if a school day from the conclusion of school (or otherwise 3.30pm) to 7.00pm if the children are not in the Father’s care and if a non-school day for a period of three hours as agreed between the parties in writing or otherwise from 10.00am to 1.00pm;
(v)    On Father’s Day from 1.00pm to 7.00pm;
(vi)   On other occasions as agreed in writing between the parties.
(6)    That the Father’s time with the children pursuant these Orders be supervised by either of the following paternal relatives:
(a)     Ms B Azimi,
(b)     Ms R,
(c)     Ms S.
(7)    That the Father’s time with the children pursuant to these Orders above is subject to the paternal relative who is to supervise the Father’s time with the children providing the Mother with a signed undertaking prior to the time occurring in which they are to declare that they have been given a copy of and have read and understand these Orders and that they undertake to be present at all times during the time the children spend with the Father pursuant to these Orders.
(8)    That the Father’s time with the children shall be suspended to allow the Mother to spend time with the children as follows:
(a)     On Mothers’ Day from 1.00pm to 7.00pm.
(b)    On other occasions as agreed in writing by the parties.
(9)    To facilitate the Father spending time with the children, the Father shall collect the children from School P at whichever location the children attend, and otherwise from the Mother’s residence at the commencement of his time with the children, and shall return the children to the Mother’s residence at the conclusion of his time with the children. If applicable, the parent taking care of the children is not to enter onto the other parent’s property during changeover and the parents are not to engage in verbal conflict during changeover.
(10) That the children have FaceTime with the Father on Wednesdays between 5.30pm and 6.30pm with the Father to contact the children via FaceTime on a mobile telephone number provided by the Mother to the Father within 48 hours of the date of these Orders.
(11) That for the purposes of Order 10 above, the parents are restrained from speaking directly with each other, or about each other, or sending messages to each other via the children or be visible on the screen during the FaceTime communication between the Father and the children.
(12) That the parents shall do all things necessary to encourage the children to participate in the FaceTime communication pursuant to Order 10 above and the Court notes that there may be some difficulties at times given that Z had been diagnosed with Autism and X has been diagnosed with ADHD.
(13) That the children’s names remain on the Airport Watchlist until further Order of this Court.
(14) That both parents are restrained from physically disciplining the children.
(15) That both parents are restrained from speaking to the children about any aspect of these proceedings or discussing with the children any conflict between the parents.
(16) That the Father is restrained from smoking cigarettes in the presence of the children.
(17) That both parents be restrained from speaking to the children about the other parent in derogatory terms or in an interrogatory manner or allowing any third party to do so.
(18) The Father is permitted to attend the children’s pre-schools, schools and extra-curricular activities for activities and events to which all parents are invited.
(19) That the parents shall communicate by SMS messages in respect of parenting decisions concerning the children.
(20) That each parent shall refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and each party will use their best endeavours to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.
(21) The Mother shall inform the Father by e-mail as soon as practicable of any specialist medical appointment arranged for the children that is not part of their routine care.
(a)     The Mother will provide authority to any such specialist to provide the Father with a copy of any report provided.
(22) That in the event that either of the children suffers a medical emergency requiring medical attention while in the care of either parent:
(a)     The other parent is to be notified as soon as practicable;
(b)    The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable;
(23) That the Mother authorises the children’s school to provide the Father, at his expense if any, with:
(a)     a copy of all school reports for the children;
(b)    notification of school activities for the children;
(c)     parent/teacher nights for the children;
(24) That each parent shall keep the other parent advised of their contact telephone numbers and address and advise the other party of any changes to these details within seven days of such change occurring.

I certify that the preceding two hundred and twelve (212) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate:

Date: 23 November 2020

[2020] FCCA 3185

23 November 2020

Key Legal Topics

Areas of Law

Family Law