Bahri & Lannick - [2022] FedCFamC2F 1753

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bahri & Lannick [2022] FedCFamC2F 1753

File number(s): PAC 5379 of 2020

Judgment of: JUDGE NEWBRUN

Date of judgment: 16 December 2022

Catchwords: FAMILY LAW – PARENTING – Final hearing – Best interests of children – Final Orders made.

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

Cases cited: Saif & Saif [2020] FamCA 119

Division: Division 2 Family Law

Number of paragraphs: 245

Date of hearing: 4–5 October 2022, 25 November 2022

Place: Parramatta

Counsel for the Applicant: Mr Pickering

Solicitor for the Applicant: Ark Law Lawyers

Counsel for the Respondent: Ms Bateman

Solicitor for the Respondent: Inner West Solicitors Pty Ltd

Counsel for the Independent Children's Lawyer: Mr Blank

Solicitor for the Independent Children's Lawyer: Claremont Legal
ORDERS

PAC 5379 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BAHRI

Applicant

AND:
MS LANNICK

Respondent

Order made by:

JUDGE NEWBRUN

DATE OF ORDER:

16 DECEMBER 2022

THE COURT ORDERS THAT:
1.The children X born in 2014 and Y born in 2016 (“the children”) live with the mother.
2.The mother have sole parental responsibility for the children.
3.The children spend no time with the father.
4.The father and/or his agents are restrained by injunction from communicating with, contacting or attempting to contact the children and/or the mother.
5.The father, and/or his agents, are restrained by injunction from attending any school which the children attend.
6.The mother is to ensure that X continues to attend upon all appointments as scheduled by all of X’s mental health care practitioners, until such time as those practitioners recommend otherwise and comply with all recommendations given by those practitioners.
7.Pending further Order, the mother and the father, and his/her servants and/or agents, be and are hereby restrained by injunction from removing or attempting to remove the children X born in 2014 and Y born in 2016 from the Commonwealth of Australia.
8.The Marshall and all officers of the Australian Federal Police and of the police forces of the various states and territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the said children, X born 2014 and Y born in 2016 on the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the children’s name on the Watchlist until further Order of the Court.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bahri & Lannick has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION

This final parenting hearing relates to the children X born in 2014 and Y born in 2016 (“the children”).
PROPOSALS
The Independent Children’s Lawyer (“ICL”) seeks orders in accordance with her proposed Minute of Order, as follows:
1.That the children [X] born [in] 2014 and [Y] born in 2016 (“the children”) live with the mother.
2. That the mother have sole parental responsibility for the children.
3. That the children spend no time with the father.
4.That the father and/or his agents are restrained by injunction from communicating with, contacting or attempting to contact the children and/or the mother.
5.That the father, and/or his agents, are restrained by injunction from attending any school which the children attend.
6.The mother is to ensure that [X] continues to attend upon all appointments as scheduled by all of [X]’s mental health care practitioners, until such time as those practitioners recommend otherwise and comply with al recommendations given by those practitioners.
7. Pending further order, the mother and the father, and his/her servants and/or agents, be and are hereby restrained by injunction from removing or attempting to remove the children [X] born [in] 2014 and [Y] born [in] 2016 from the Commonwealth of Australia.
8.The Marshall and all officers of the Australian Federal Police and of the police forces of the various states and territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the said children, [X] born [in] 2014 and [Y] born [in] 2016 on the airport watchlist in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the children’s name on the watchlist until further order of the Court.
The mother sought orders that:
(a)The mother have sole parental responsibility for the children;
(b)The children live with the mother;
(c)The children spend no time with the father;
And she sought proposed final orders 4, 5, 6 as set out in her Response filed 27 November 2020: certain restraints against the father and an Airport Watchlist Order.
The father sought orders as set out in his Initiating Application filed 9 October 2020 as follows:
1.That both parents have equal shared parental responsibility for [X] born [in] 2014 and [Y] born [in] 2016 (collectively, “the children”).
2. That the children live with the mother and the father on a week about basis, with changeover to occur at the conclusion of school, or if a non-school day at 3:00pm each Friday.
3. That notwithstanding any other Order herein, the children spend time with the parents on special days as agreed between them in writing, or failing agreement, as follows:
3.1.     With the father:
3.1.1.   On Father’s Day from 10:00am to 6:00pm,
3.1.2. On the Father’s birthday from 10:00am to 6:00pm,
3.1.3. On each of the children’s birthdays, in odd numbered years if it falls on a school day, from the conclusion of school to 8:00pm, or if it falls on a non-school day from 12:00pm to 8:00pm, and
3.1.4. From 3.00pm on the day of Eid-ul-Fitr until 3.00pm three days later,
3.1.5.From 3.00pm on the day of Eid-ul-Adha, until 3.00pm three days later, and
3.1.6. From 3.00pm on Christmas Eve until 3.00pm on Christmas Day in odd numbered years and from 3.00pm on Christmas Day until 3.00pm Boxing Day in even numbered years.
3.2.     With the mother on:
3.2.1. On Mother’s Day from 10:00am to 6:00pm,
3.2.2. On the mother’s birthday if it falls on a school day from 3:00pm to 7:30pm, or if it falls on a non-school day from 10:00am to 6:00pm,
3.2.3. On each of the children’s birthdays, in even numbered years if it falls on a school day, from the conclusion of school to 8:00pm, or if it falls on a non-school day from 12:00pm to 8:00pm, and
3.2.4. From 3pm on Christmas Eve until 3pm on Christmas Day in even numbered years and from 3pm on Christmas Day until 3pm Boxing Day in odd numbered years.
4. That for the purposes of the Father’s time with the children in accordance with Orders 2 and 3, changeover occur on non-school days at [Suburb C] McDonalds, on [B Street, Suburb C].
5. That both parties be at liberty to contact the children by telephone or other electronic means on the Mondays, Wednesdays and Sundays between 5:00pm and 6:00pm, that the children are not in their care, and the other parent is to provide the children with privacy during such communication with their parents.
6. That both parties are to inform the other party as soon as possible in the event that a medical emergency involving the children occurs whilst the children are in their care.
7. That both parties are to keep the other party informed of their mobile phone number and current residential address and to notify the other within 48 hours of a change to their mobile telephone number or residential address.
8. That the parties are injuncted and restrained from denigrating the other parent or any member of the other parent’s family or associates in the presence or hearing of the children, and will use their best endeavours to prevent any third party from doing so.
9. That the parties will both be entitled to attend all events involving the children that parents are ordinarily invited to attend, including but not limited to:
9.1.      Sporting fixtures
9.2.      Extra curricular activities
9.3. School functions and events including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
10. That the parties both be entitled to contact the school to inform themselves in relation to the children’s schooling and to receive all documents that are parents ordinarily receive, including school reports, newsletters and school information.
11. That both parties do all things necessary to ensure that the children attend Islamic Religious classes at their primary school.
12. That each parent be permitted to travel with the children out of the Commonwealth of Australia, provided such period of proposed travel takes place during the time the child/ren are living with that parent pursuant to these Orders unless otherwise agreed between the parties in writing via email and also provided that:
12.1. So far as practical the occasions on which the parent takes the children out of Australia are to coincide with the school holidays of public schools in New South Wales
12.2. The parent proposing such holiday shall notify the other parent no less than 30 days prior to the departure date of such proposed trip, and shall provide to the other parent at this time:
12.2.1.Particulars including the proposed itinerary and proposed period of such trip;
12.2.2.At least 10 days before departure, a final itinerary including contact telephone numbers and full street addresses of where the child/ren will be staying;
12.2.3.copies of return airline tickets and details of flights once booked and irrespectively at least 10 days before departure.
In final submissions, the father’s counsel submitted that the children would need to be re-introduced to the father and that time between the children and the father might begin gradually and initially be supervised.
MATERIAL RELIED UPON
The father relied upon his:
(a)Case outline filed 30 September 2022;
(b)Initiating Application filed 9 October 2020;
(c)Affidavit filed 9 October 2020;
(d)Family Report dated 24 September 2021.
The mother relied upon her:
(a)Response filed 27 November 2020;
(b)Notice of Child Abuse, Family Violence or Risk filed 27 November 2020;
(c)Affidavit filed 11 November 2021;
(d)Family Report dated 24 September 2021.
The ICL relied upon the following documents:
(a)Case outline filed 21 June 2022;
(b)Family Report dated 24 September 2021;
(c)Tender Bundle of the ICL.
The following documents became Exhibits:
(a)Exhibit A: Family Report dated 24 September 2021 and Child Dispute Conference Memorandum dated 2 December 2020;
(b)Exhibit B: ICL Tender Bundle;
(c)Exhibit C: Valentine’s Day Card from the mother to the father dated 2015;
(d)Exhibit D: Photograph of the mother and father on a roller-coaster;
(e)Exhibit E: Photographs of the mother and children;
(f)Exhibit F: COPS entries;
(g)Exhibit G: Photos of the parties;
(h)Exhibit H: Suburb C Local Court file.
EVIDENCE
In determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. Evidence relevant to the Court’s determination will be considered either in this section or whilst addressing the section 60CC considerations (ie section 60CC of the Family Law Act 1975 (Cth) (“the Act”)) (see below). Evidence referred to under the section 60CC considerations shall, in the event of any conflict with the evidence referred to in this section, take precedence.
Affidavit of the father
The Court does not propose to set out the entirety of the father’s affidavit filed 9 October 2020.
The father was born in Country D in 1970. He moved to Australia in 1989.
The father lives at Suburb E, NSW.
The parties commenced a relationship in 2013. The father asserts that the parties separated in July 2018.
The father has not spent time with the children since October 2019.
The mother has a child from a previous relationship, F, born in 2013.
The father has a child from a previous relationship, G, born in 2010. The father usually spent time with G for two nights per week from Friday to Sunday from 2015 to 2017. The mother of this child is named Ms H.
At the start of the parties’ relationship the father worked in the technology sector and sales at Employer J. In 2018 he worked as a tradesman. The mother worked throughout the parties’ relationship as a tradesman on a part-time basis about two days per week.
The father asserts that in late 2014 or early 2015 the mother had a break from living with the father for about two days. About six months later, in 2015, the father asserts that the mother told him that she wanted to live with her mother and that she was going to move out. He asserts that the mother told him that the reason for wanting to move out was because there was more space living with the maternal grandmother. The mother stayed with the maternal grandmother for about a week and during this time the father spent time with the children. Soon after arriving back home, the mother moved out again with the mother telling the father that she was living above a shop in Suburb K and that was better for her. The father asserts that from this point onwards the parties continued their relationship; he asserts that he often stayed at the mother’s home or the mother, F and X stayed at his home.
The father asserts that after Y was born in 2016 he spent time with the children every day at either the mother’s home or at his home.
The father asserts that F told him that the mother was sleeping with a man at her residence which upset the father. He asserts that he confronted the mother on a few occasions and they argued. He asserts that on one occasion he was frustrated and told the mother that if she needed to see someone else that she shouldn’t bring them home in front of the children.
The father asserts that when the parties’ argued he frequently left the house and returned to his residence to de-escalate the situation.
The father, again, asserts that the parties separated in July 2018.
The father asserts that following separation the parties reached an agreement about the parenting arrangements for the children and the father was to continue spending time with the children, including F. He asserts that he spent time with the children on Thursday night to Sunday night each week, and on some other weekdays. The father asserts that this arrangement remained in place until October 2019.
The father asserts that in about October 2019 having returned from a business trip to Melbourne the mother failed to facilitate the father spending time with the children. He asserts he spoke with the maternal grandmother who told him that she did not know where the children were. He asserts he contacted the maternal grandmother by telephone on multiple occasions between October 2019 and August 2020 but she did not return his calls. He asserts he also attempted to contact other family members of the mother without success.
The father attended the children’s school at Suburb K in about late May 2020.
During the parties’ relationship the mother was the primary carer for the children. The father asserts that he contributed significantly to their care, as well as the care of F.
The father asserts that in about 2013 Ms H reported to the police that he had hit her while in the car following a trip with G to get lunch. The father denies that this occurred. A final ADVO was made against the father for the protection of Ms H with the father consenting to this order on a without admissions basis. The father asserts that after this ADVO was made, he and Ms H reached an agreement that he spend time with G about two nights per week.
The father asserts that an ADVO was made for Ms H’s protection in 2017 and he believes it was in relation to an earlier attendance at her home when he and Ms H argued and Ms H told the father not to come to her residence. The father asserts that he did not find out about the ADVO until he attended the police in 2018 in relation to an incident with the mother’s brother. (The Court observes that the father, later in his affidavit, asserts that he did not find out about the ADVO until he attended the police after 23 July 2018 in relation to an ADVO against him in respect to the mother; see below). He asserts that since 2017 he has not spent any time with G.
In 2018 an ADVO was made against the father for the protection of the mother’s brother Mr M. This was in relation to an incident that occurred at the mother’s home. The father was not charged with any specific offences in relation to this incident.
The father admits that in about June 2018 he was at the mother’s home, and he raised his voice at the mother after she had arrived home at about 1.30am having been dropped off by a male driver. The mother had not answered the father’s question as to the identity of the male driver. The father believes that the mother contacted the police. The next day the father was requested to come to the police station and he gave a video statement to police about the incident. The father understands that the mother told the police that he had hit her but the father denied this allegation and pled not guilty.
The father asserts the ADVO matter was listed for final hearing on 23 July 2018. He asserts that on this day he was very sick and he did not attend Court. He asserts that the next day he went to the Local Court and explained this to the Court staff. He asserts that he was told that he could fill in a form but that it was unlikely that it would go through because the matter was finalised. The father asserts that for this reason he did not complete the form. The father asserts that he received a fine of about $1,700 “for not attending Court” and a final ADVO was made against him for the protection of the mother. This ADVO was in place until 17 May 2020. The Court finds that in fact the father was convicted on 23 July 2018 of common assault upon the mother committed in about March 2018 and was fined $1,000.

The father asserts that when he attended the police station in relation to the ADVO for the mother’s protection to collect a copy of the document, he was also given a copy of an ADVO for Ms H’s protection made in 2017. The father asserts he did not receive notice of this ADVO prior to receiving the document. He asserts he filed an appeal against the decision of the Magistrate, however the appeal was unsuccessful.
The father attended the children’s school on 5 June 2020. The father saw X and F and briefly spoke with them before being asked to leave the school by the deputy principal.
The father asserts that on 10 June 2020 he attended the mother’s workplace and gave a letter to the mother’s employer, which letter was directed to the mother to attend mediation.
The father asserts that he is not concerned about the children being left in the mother’s care however he is concerned that the children may be left in the care of her boyfriend.
The father asserts that he acknowledges that because he and the children have not spent time together since October 2019, they would need to be reintroduced and that the time would need to build gradually to assist them to build a relationship with the father. He asserts that for this reason he believes it is appropriate for the children to spend time with him on a weekly basis and for this to increase gradually.
Affidavit of the mother
The mother is aged 30 years. The father is aged 52 years.
The parties commenced a relationship in 2013 and married in 2013 in an Islamic ceremony. The ceremony was conducted in Arabic. The mother does not speak Arabic and she is not aware of what words were spoken at the ceremony however the father required the mother to go through the process so she could be with the father.
The mother asserts that the parties’ separated on a final basis in December 2014.
The child F has a close relationship with the children.
About two years ago the mother re-partnered with Mr L, and they commenced cohabitation in 2021. The children have a close relationship with him and refer to him as “dad” and “daddy”.
The mother asserts that after the first child was born, the father refused to allow her to keep sleeping in the bedroom and made her sleep on the couch downstairs with the baby. She asserts that the father refused to allow her to put the heater on.
In about November 2014, the father began verbally abusing the mother and threw a large tub of Sudocrem at her. The father missed the mother and hit X in the face. The mother immediately picked up this child and left the house and stayed at her friend’s house for about two nights. The father apologised to the mother saying he would never do that again and the mother returned home.
Following the above incident the father became increasingly volatile and easily angered. If the mother did not do exactly what he wanted he would become angry at the mother and swear at her and accused her of being a terrible mother. He would also swear at her in Arabic. The mother felt like she was walking on eggshells during the relationship. The mother asserts that she was forced to do anything the father required to avoid him abusing her.
In about June 2014 mother found out that the father had lied to her about his age. At the time the relationship began, the father told the mother that he was 28 years of age. The mother confronted him about his true age, and the father also disclosed that he had four children from a previous relationship.
At separation in December 2014, the mother was tired of the parties’ arguments, and the father’s violence and lies so she asked the maternal grandmother to pick up herself and the children from the house. The mother stayed at the home of the maternal grandmother with the children for about one week whilst the mother looked for alternative accommodation.
In December 2014 the mother and children moved into an apartment in Suburb K above her workplace. About three weeks after moving into the apartment the father called the mother and told her that he knew where she lived.
The mother recalls telling the father on multiple occasions to leave the children and herself alone, however the father kept unilaterally showing up at her residence. The father would say to her that she was his wife in Islam and she could not leave the father. The mother asserts that she felt that she was still under the control of the father and that she had to do what he wanted to avoid him abusing her.
When the father would contact the mother on multiple occasions he would bring up that they had an Islamic marriage. Whenever the father would want to have sex with the mother he would threaten her with words to the effect of, “the angels are cursing you as you’re my wife you need to sexually please me” and “if you do not sexually please me you are going to get punished in your grave.” Under threats from the father, the mother was forced to have sex with him on numerous occasions. The mother would just lie down and put a pillow over her face during sex. The mother remembers counting numbers in her head waiting until it was over. It was a coping mechanism and a way for her to try to numb out what was happening to her body.
The father would frequently come over to the mother’s home uninvited and demand that the mother cook for him. He would play computer games and not assist with the care of the children. Once the children were in bed he would force the mother to have sex with him and then he would leave. The father did not stay overnight at the mother’s home.
For a few months following Y’s birth, the mother tried to offer time for the father to spend with the children, however, he would avoid this as often as possible. The mother remembers on a number of occasions when she dropped the children off at his house, as she either had work or other engagements, the father would demand that she give him oral sex otherwise the children would not be allowed to stay.
The father would call the mother multiple times at night. In the event that she was not at home, and he was caring for the children, he would call the mother and threaten to take the children to the police station if she did not return home. There were times when she would pick up the children and they would be screaming in the car and appear distressed. The children would come back to the mother crying and say to her words to the effect of, “mum, are you going to burn in hell?” The mother would ask them, “why do you say that?” The children would reply with words to the effect of, “dad says that you will burn in hell.” It would take at least an hour for the mother to calm the children down.
The mother asserts that in about mid-2015 the mother’s younger brother, Mr M (“Mr M”) was over visiting the children and herself. Mr M was only fifteen years of age at the time. Mr M offered to buy them all kebabs as it was too hot to cook that day. The father did not agree and insisted that the mother had to cook and left to go and purchase meat. When the father returned home he saw Mr M and herself eating kebabs. The father appeared enraged and began yelling and screaming at the mother and her brother. The father then headed downstairs to put things away in his car and left the front door wide open. The mother heard X, who was only two years old at the time, making her way down the stairs. As such, Mr M quickly ran to grab X before she walked out on to the street. Mr M then yelled at the father with words to the effect of, “next time close the fucking door.” The father then ran after Mr M who was holding X and began to throw punches. The father then picked up a metal window winder and swung it towards Mr M. This hit X on the lip and it split her lip open. The mother called the police, and they issued an AVO naming the father as the defendant and Mr M as the person in need of protection.
In or about early 2018 the mother went out for dinner with her friends. The children were spending time with the maternal grandmother at the mother’s residence. The mother received a text message from the maternal grandmother that the father had shown up and that she had gone home. As such, the mother made her way home by an Uber. As the mother exited the Uber she noticed a male figure running very fast towards her. As he got closer, the mother realised that it was the father. The father then punched the mother to her head and began to yell and scream at her for being out. The punch caused the mother to lose her glasses in the bushes. The mother ran away from the father and immediately called the police. When the father realised that the mother was calling the police, he immediately left. The police attended shortly after and took a statement from the mother. The father was subsequently arrested and charged with assault and there was an AVO naming him as the defendant and the mother as the person in need of protection. The mother asserts that on the day the AVO was listed in Court, the father did not show up and as such the Court fined him the sum of $1,700 and granted the AVO on a final basis for the mother’s protection. Again, the Court finds that in fact the father was convicted on 23 July 2018 of common assault upon the mother committed in about March 2018 and was fined $1,000.
In October 2019, the mother stopped answering the father’s phone calls and stopped allowing him access to the children. A dispute occurred when the father found out that the mother was going to her friend’s house after she had dropped the children off with him. The father threatened to take the children to the police station and the mother could hear the children in the background crying. As such, the mother immediately returned to pick up the children. As the mother was getting the children out of the car, the father grabbed F and threw her aggressively back into the car which resulted in her arm striking the frame of the car. This was very traumatic for F and she still remembers the incident and recounts it to the mother. On this day, the mother said to the father words to the effect of, “I promise you that you will no longer see the children. I have had enough of the violence.”
The mother wanted the children to have a relationship with the father up until October 2019, as she thought it was important that the children have a father. She was hoping that the father would change and became a good dad. However, the mother slowly came to the realisation that it was not healthy for the children to spend time with the father.
On 5 June 2020, the father showed up at the children’s school, Suburb K Public School. The school telephoned the mother to notify her that the father was attempting to see the children. The mother immediately called the police and headed to the school to pick them up. On arrival, the mother saw the girls crying. F was distraught that the father had shown up and refused to go to school for a few days afterwards. F said to the mother words to the effect of, “I’m scared he is going to take us away.” On one night after this incident, F was very shaken and couldn’t sleep and said to the mother words to the effect of, “Mummy, I can’t close my eyes. All I see is his face and I don’t want him to show up again like that.” This was a very distressing time for the mother and the children and it took weeks to get over. The police attended the mother’s work that night and took a statement from her. Nothing eventuated after the mother’s statement was taken.
When the parties were together, the children were forced to learn the Koran and once a week the father would arrange for a Sheik to attend the house to give the mother a lecture about Islam. The father was a strict Muslim, to the extent that he refused to allow a Christmas tree to be put up. The father has told the mother on numerous occasions words to the effect of, “If I was responsible for the children, I would kill them before they hit puberty. They are not Muslim, and I want them dead before they reach puberty so that I can ensure they go straight to heaven.”
Since separation, the children have not attended Islamic courses, and the children are now being raised Christian. The mother and children pray before dinner most nights and attend church when they can.
The mother has a genuine belief that the father will harm the children during his violent rages. The father has said words to the effect of, “if I cannot have you, the kids are dead to me.”
The father refused to pay child support to assist with the children’s care. The father has stated to the mother on multiple occasions words to the effect of, “I will never work full time so that the money does not go to the children.”
The eldest child is in good health. The youngest child suffers from chronic asthma and requires Ventolin to treat his asthma. He requires regular medication of steroid nose spray for his allergies; he is anaphylactic to peanuts, tree nuts, dust and mould. He must carry medication, an Epipen and Ventolin everywhere he goes.
The mother and her partner presently rent a three bedroom house in Suburb N with the children. The eldest child and F share a bedroom. The youngest child has his own bedroom.
The children have a close relationship with the maternal grandmother. They spend time with her about three times per week.
The mother believes that the children would be at risk of physical violence and emotional and psychological harm if they were to spend time with the father.
Oral evidence of the father
The mother’s counsel cross-examined the father.
The father stated that he has practised the Muslim faith for his entire life and it is important to him. He stated that he required the mother to be Islamically married otherwise it would have been a sin. In this context, he stated that it was better for both himself and the mother, and the mother agreed.
The father confirmed that the parties have not been legally married under Australian law.
The father stated that the parties’ relationship spanned the period from 2013 to 2018, although sometimes there had been a break or separation in the relationship during that period.
The father stated that he did stay at the mother’s place after December 2014. He stated that the parties stayed at each other’s place after December 2014.
The father stated that to be able to have sex with the mother he needed the mother to marry him Islamically and he told the mother that was the case.
The father confirmed that he has four children from previous relationships. The Christian name of the mother of his adult children Mr O and Ms P is Ms Q, his adult child Ms R’s mother’s Christian name is Ms S, and the Christian name of the mother of his child G, born in 2010, is Ms H.
The father stated that he has previously attended the Casino with friends but he did not attend regularly. He had attended that casino in 2014.
The father denied the mother’s assertion that in about November 2014 the father threw a large tub of Sudocrem at the mother which had struck the child X. He agreed that the mother had taken this child from the parties’ home in November 2014 and had been away one night but had returned the next day.
It was put to the father that he has the capacity to become angry. In response, the father stated that everyone can get angry however it is a sin to get angry.
It was put to the father that he has been angry towards his previous partners. In response, the father stated that he has become angry to a certain stage.
The father agreed that in 2020 he had re-partnered with a woman that he had met through the Tinder website, and her Christian name was Ms T. He agreed that he had been served with an AVO protecting this woman in about late December 2020, however this order was ultimately not made (by the Court). The father had been charged with breach of this order on about 9 January 2021. He stated that the matter had gone to Court and the allegation of breach was not upheld by the Court.
The father agreed that Ms T had said in an affidavit that he had sexually assaulted her but none of this had occurred. He stated that he and Ms T had had a sexual relationship. He confirmed that Ms T had alleged to the police that she and the father had been married Islamically. He confirmed that Ms T had alleged to the police that after one month of knowing the father he had changed and had become quick to anger. He confirmed that Ms T had alleged to the police that the father had begun to exert controlling behaviours towards her. He confirmed that Ms T had alleged to the police that he had called her a slut. The father stated that these allegations to the police were not true.
The father agreed that he was assessed to pay child support for the children through the Child Support Agency (“CSA”). The father stated that he always provided the mother with cash but he did not pay it through the CSA.
The father agreed that after the mother left the family home in December 2014 he had phoned her multiple times.
It was put to the father that he knew, in about late December 2014/early 2015, that the mother and the child X were residing in an apartment at Suburb K. In response, the father stated that he knew of that fact after a week from when the mother had moved from his place. The father confirmed that the parties (then) had separate residences.
It was put to the father that the mother and Ms T were not known to each other. The father responded that he did not know.
The father was asked to accept that the allegations made by Ms T were strikingly similar to the allegations that the mother made against him, to which he replied in the affirmative.
The father was cross-examined in relation to an alleged incident in about mid 2015 involving himself and the mother’s younger brother Mr M. The father agreed that a provisional AVO had been made for Mr M’s protection which had later gone to Court and a final AVO was made.
The father agreed that the mother had facilitated the children spending time with him between 2016 (the youngest child’s birth date) and 2019.
The father was cross-examined in relation to an alleged incident in about early 2018 when the father had allegedly punched the mother outside her residence. The father stated that prior to the mother returning home to her residence on this evening he had been present with the maternal grandmother at the mother’s residence. The maternal grandmother had been caring for the children. He stated that the maternal grandmother had then left the mother’s residence and he had waited for the mother to return home. He stated the mother had returned at 2.00am but he denied punching her. He stated that he had probably raised his voice at the mother because of who she was with that evening. The father later ascertained that the mother had called the police. He stated that he had been arrested by the police and charged with assault upon the mother. He had been provided with a Court Attendance Notice. He had been served with an AVO protecting the mother from him before being released from custody. He had paid a fine in relation to the charge of assault upon the mother. He agreed that the AVO had later been made a final order.
The father agreed that in October 2019 there had been a complete fracturing of his relationship with the mother.
The father accepted that from about the end of 2014 the mother had moved into a separate apartment. The father had kept his own place to live in.
The father agreed that occasionally he had gone to the mother’s place and occasionally they were intimate. The father stated that on the basis of those matters he believed they were still in a relationship.
The father agreed that one of the reasons he gave for staying in a relationship with the mother was that his son was born. The father stated that the fact that his son was born after 2014 was proof of being in a relationship with the mother.
The father stated he still wished for the children to be raised in the Islamic religion.
The father stated that Ms T came to his place and they were intimate on some occasions. There had been no Islamic wedding ceremony with her. The father agreed that according to his religion you should not engage in sexual relations unless you are married. He agreed that he was breaking his Islamic tradition in having sexual relations with this woman.

The father stated that the mother of his daughter G, Ms H, stopped him seeing G.
It was put to the father that when X was born, he stopped the mother sleeping in the same bed as him. In response the father stated that it was not every day (that the mother did not sleep in his same bed). He stated the mother sometimes slept downstairs.
It was put to the father that on about 20 March 2013 a report to police had been made in relation to him telephoning a woman asking to see their child. The father in response stated that the woman was maybe the mother of G, Ms H. He agreed that he had wanted to see this child and Ms H was not allowing him to do so. The father stated that he had gone to see the child in Suburb U and that he used to argue with Ms H asking her why she had left him.
The father was cross-examined in relation to an alleged incident involving Ms H on about 1 August 2013. He agreed that Ms H had spat in his face when he was driving Ms H and the child G home from the casino. The father denied then punching Ms H. He stated he was very angry and upset. He agreed that he had attended a police station and related his version of the incident with Ms H. He agreed that he had told police that he had held Ms H to calm her down.
The father was cross-examined in relation to an alleged incident on 2 December 2017. The father agreed that he was outside Ms H’s residence. He stated he had gone there to see the child G. He stated that Ms H was shouting and screaming at him because he had requested to see G. The father confirmed that he had not previously arranged with Ms H to see G although he stated that there had been a prior agreement that he could see the child. The father stated that every fortnight, unannounced, he would attend Ms H’s house to spend time with G yet Ms H would tell him to go away. The father stated that he ceased attending “for a bit” and then he came again. The father stated that he had ceased attending her residence after finding out of the existence of an AVO.
It was put to the father that he had attended upon Ms H’s residence on 24 February 2020. In response the father stated that that could have been the case. The father was asked whether he had heard Ms H say to the father that she would call the police, to which the father responded, “maybe”. It was put to the father that Ms H didn’t want the father attending her residence and he had kept turning up, to which the father agreed. It was put to the father that he did not respect Ms H’s right not to see him, to which the father responded that it was because he loved the child. It was put to the father that he was showing disrespect for the mother of the child, to which the father responded that it “could be”.
It was put to the father that he had attended upon Ms H’s residence on 4 June 2020 and that she had told the father to go away because he was not wanted there. In response the father stated that he wanted to see his daughter. The father agreed that this was another occasion where he had attended upon Ms H’s home unannounced.
The father was cross-examined in relation to an alleged incident on about 7 January 2021 to which a report was made to the police. It was put to the father that the victim had received a phone call, to which the father replied that it was Ms T. The father stated that the police checked the complaint and it was found not to be the father who had telephoned Ms T.
The father was cross-examined in relation to attending the children’s school on 5 June 2020. The father stated he had not contacted the mother previously about attending the school although he did not know how to contact her. It was put to the father that he had turned up to the children’s school to see them without the children knowing. In response, the father stated that the children were his children, that he hadn’t seen them, and he was only feeling for them. He stated that it was not correct what the mother had done to him which was kidnapping.
The father was cross-examined in relation to the orders that he sought. Initially he stated that he wants “half custody”. He was asked whether there should be equal time now to which he stated, “not straightaway”.
The father confirmed that he had had no communication with the mother over the last three years.
The father stated that he could raise long-term issues relating to the children with the mother through a counsellor. He stated that, for himself, he did not want to get involved with the mother and that he was only concerned with the children.
The father stated that he was last employed in late 2019. He presently obtains JobSeeker benefits. He was seeking to get employment soon as a tradesman.
The father stated that he was on a waiting list for the V Program through W Family Centre. He stated that the program organisers had told him that they would telephone him when the course became available.
The father stated that he had turned up at the mother’s workplace to pick up the children.
The father was asked whether he was aware that the school counsellor’s report dated 6 April 2022 had referred to the child X as suffering anxiety. The father stated that he was not so aware. It was suggested to the father that should that child now spend time with the father she may experience anxiety caused by a change to her routine, to which the father disagreed stating that all the children love him.
In re-examination, in relation to Ms T and an AVO relating to her, the father stated that he was not found guilty of any offence relating to that AVO.
The father stated that he had consented without admissions to an AVO for the protection of the mother’s brother Mr M.
In relation to the incident in early 2018 outside the mother’s residence, the father confirmed that he had been charged with assaulting the mother and an AVO had been made for the mother’s protection. He asserted that he had been sick and could not go to Court (in relation to, inter alia, the assault charge). He asserted that he had attended the Court a short time later but was told by court staff that he couldn’t do anything about the assault conviction.
The father stated that he had been married Islamically to the mother, Ms H and Ms S.
Oral evidence of the mother
The mother gave oral evidence.
The mother was cross-examined by the father’s counsel.
The mother stated that about halfway through the Islamic marriage ceremony with the father she realised that it was a marriage ceremony. The mother stated she was aware that it was important to the father that if he and his partner were to be intimate they had to be married Islamically. The mother stated that she had willingly got married in the Islamic marriage ceremony.
The mother confirmed that she had sent a Valentine’s Day card to the father in February 2015 (Exhibit C) which had stated, inter alia, “love you heaps…from your sexy wife”. In this context, the mother maintained that she and the father were not in a relationship in February 2015 and that she did whatever it was to make the father happy. As to the reference in the card to “wife”, the mother stated that she continually said things (to the father) that were better for her.
The mother confirmed that the father looked after the eldest child and F whilst the mother was in hospital giving birth to Y and who was born in 2016. In this context, the mother stated that she had no other choice but for the father to care for these children when she was in hospital. The mother stated that the maternal grandmother works in employment.
It was put to the mother that in reality she and the father were in a relationship after December 2014, to which the mother replied that the father insisted that she be his wife and that she just went along with it. She stated that at other times she got fed up. She stated that at the time she was forced to do a lot of things. It was then put to the mother that she was previously able to call the police, to which the mother agreed. The mother stated she was (previously) incapable of not describing herself as the father’s wife.
The mother’s attention was drawn to the Community Health clinical report for the eldest child dated 6 July 2016 (starting at page 51 of Exhibit B). It was put to the mother that the parties were effectively together and a relationship was ongoing (at the time of that report). The mother responded by stating that the father just showed up at her house every day. She stated that on many occasions she told the father not to attend her residence but the father just entered.
The mother agreed that the incident involving her brother and the father occurred on about 30 January 2017 and not in about mid-2015.
It was put to the mother that she continued to do activities with the father and the children (such as attending parks) all the way up to 2019. The mother responded by stating that she was forced to do these things. She stated that the father would come over and resume family life. She told the father that she was in a relationship. She stated the father was delusional but the father would come back the next day as if nothing had happened.
The mother was then asked why she did activities with the father such as going out for dinner with him. The mother responded by stating that she did these things to please the father and to make life more comfortable. The mother stated that when you had been in violence and control for five years, for example she had to call the father when she wanted to go out or wear certain clothes, she felt she had to (leave the children in his care).
The mother agreed that she had attended dinner with the father on New Year’s Eve, 31 December 2017. The mother stated that she felt that she was forced to go, with the father having arranged the babysitter.
The mother was shown a photo of herself asleep at the father’s house with the children around her, with the father’s counsel suggesting the photo was dated 9 March 2019. The mother responded by stating that it could have been 9 March 2019 but she was not sure. The mother stated that she would take the children to the father’s house by force. She stated that she did everything to make the father happy, and that she was very controlled all the time.
The mother agreed that she was in regular telephone contact with the father through 2019. The mother agreed that she had sent text messages to the father on 22 March 2019, including a text message where she stated, “love you, kids okay?” In relation to that message, and a similar message at about the same time, the mother stated that she would put in, or say anything, in the text message to the father, to shut him up. In relation to a similar message to the father at about the same time, expressing love, the mother stated that she did that to keep the peace. The mother went on to state that “the second she stood out of line that was it.” The mother stated that the five years from December 2014 to October 2019 were the worst five years of her life.
The mother agreed that she had sent other text messages to the father in March 2019, relating to the children. The mother stated that if she didn’t message the father and keep sweet talking, he would show up and ask her who she was with.
In relation to the ADVO made on 23 July 2018 (a two year final order dating from 17 May 2018), the mother stated that she was aware of the terms of the ADVO “from the start” but that the father kept on breaking it. She stated she did not report the father to the police. In this context, she stated that she had to keep the father happy otherwise the violence would happen.
It was put to the mother that she had no need to meet with the father if she legitimately feared him. In response, the mother stated that the ADVO did not do anything and that it was just a piece of paper. She stated that the father was still the violent person.
It was put to the mother that she had no concern regarding the father caring for the children for years after December 2014. In response, the mother stated that unfortunately she had no other choice. In this context, the mother stated that she had previously engaged the maternal grandmother to care for the children, including at night time. She stated that she used the father to care for the children at night time when the maternal grandmother was not available. She stated the father was a last resort in this regard.
The mother was asked why, if the father was violent, she would allow the father to care for the children. The mother responded by stating that the father was violent towards herself.
The mother was cross-examined in relation to paragraph 21 of her affidavit filed 11 November 2021. As to the mother’s assertion in paragraph 21 that she was forced to do anything the father required to avoid him abusing her, she stated that this was the position up to October 2019.
The mother agreed that she had sent a text message to the father on 4 May 2019 at 2.17pm asking the father to care for the children again tonight, and promising that the mother would sleep over. The mother referred to an appointment with a client at 7.00pm that night. She also stated she was not feeling well. She stated that she would come over and cook dinner. In relation to this message, the mother stated that she was bribing the father to care for the children. Further in this context, the mother stated that the maternal grandmother was a shift worker, and that the mother was tight for money.
The mother stated that if she was exceptionally nice to the father, the father was nice. She stated that if she did everything that the father wanted her to do, the father was nice. In this context, the mother stated that it was a very controlled situation.
The mother stated that F is petrified of the father and she cannot bear to hear the father’s name.
The mother confirmed that on about 5 October 2019 she made a request to the children’s school that the children no longer participate in Islamic scripture lessons.
The mother stated that the children do not want to see the father. She stated that the child X has severe anxiety and attends a psychologist each week.
The mother stated that prior to October 2019, there were times when the father was a good father but when the father was violent to the child F (in October 2019) “that was it”. The mother stated that normally prior to October 2019 the father’s anger was directed towards herself, but in October 2019 it was directed towards F.
It was put to the mother that she had told the police on about 10 March 2018 that she and the father were in an “off/on” relationship. In response, the mother stated that she had told the police that the father was in and out of her house. A short time later, the mother stated that the father had been in and out of her life.
It was put to the mother that in 2019 she was in daily communication with the father. In response the mother stated that there was a time where she counted a period of nine months when the father refused to see the children. She stated that during this period, every single day, she would tell the father that the children missed him and asked him to care for the children.
The ICL’s counsel cross-examined the mother.
The mother was questioned as to the school counsellor’s report in relation to X dated 6 April 2022. The mother stated that a possible diagnosis of Autism Spectrum Disorder (“ASD”) for this child was under question and that a further ASD test was due to be conducted today but which could not be facilitated (because of the court hearing). The mother stated that anything out of the ordinary causes this child anxiety. She stated that if there was an order that the children spend time with the father that would probably be devastating for X.
In relation to the Islamic marriage ceremony between herself and the father, the mother stated that about halfway through the ceremony she understood it was a marriage ceremony; she stated that she thought (to herself) that she was not a Muslim so “we’ll just do that.”
The mother confirmed she was still in a relationship with Mr L. She stated that the children call him “dad” or “daddy”; she stated that she has not yet taken professional advice as to this occurrence.
The mother was questioned as to paragraph 29 of her affidavit filed 11 November 2021 in relation to the asserted threat made by the father to her. The mother was asked whether she actually believed the content of this asserted threat, including that she would get punished in her grave for not sexually pleasing the father, to which the mother responded that she “was very worried thinking ‘what if I was’, so I just went along with it”.
The mother was questioned as paragraph 29 regarding her assertion that, “under threats from Mr Bahri I was forced to have sex with him on numerous occasions”; she was asked what were the nature of those asserted threats, including whether they were verbal. The mother responded by stating that “everything was verbal with the sexual things”. She was asked what sort of things the father had said to her in this regard. The mother responded by stating, “Usually it’s all about the religion. ‘You’re gonna burn’, ‘you’re gonna go to hell’, ‘the angels are cursing you’ and things like that.”
In relation to paragraph 34 of the mother’s above affidavit the mother confirmed that the reference to not returning home was a reference to her own home.
The mother was questioned as to paragraph 38 of her above affidavit in relation to the mother’s assertion that she had slowly come to the realisation that it was “not healthy” for the children to spend time with the father. In response, the mother referred to that part of paragraph 41 of her above affidavit in which she had asserted that the father had told her on numerous occasions words to the effect, “if I was responsible for the children, I would kill them before they hit puberty. They are not Muslim, and I want them dead before they reach puberty so that I can ensure they go straight to heaven.”
The mother was questioned as to paragraph 39 of her above affidavit in relation to her assertions that she had noticed a dramatic change in the children’s behaviour since stopping the father from spending time with them. The mother confirmed the contents of paragraph 39 and added that whilst the child X was less anxious since ceasing to spend time with the father, she was still experiencing anxiety.
The mother stated that she had not told the father about the children’s enrolment at school.
The mother stated that she could not (now) engage in conversation with the father about long-term decisions to be made for the children. For example, she stated that for religious issues, she could not see how she could discuss this issue with the father. The mother was asked whether she could discuss with the father high school decisions to be made for the children to which she responded in the negative, stating that she has been frightened of the father since she stopped talking to him in October 2019.
The mother was questioned as to whether she had obtained any advices as to the possible consequences for the children in spending no time with the father. The mother stated that she had spoken to X’s psychologist who had told her that it would not be in the best interests of X to spend time with the father because of changes in routine for this child that would result. The mother stated that this child knows who the father is but will not let the mother state his name. The mother stated that the child Y has no idea of the father.
In re-examination, the mother stated that her earlier reference to a period of nine months when the children did not spend time with the father was in 2018.
Exhibits
The Court does not propose to set out the entirety of the exhibits.
Exhibit B, the ICL’s tender bundle, at page 51, is a Community Health clinical report for the eldest child dated 6 July 2016. The mother attended this community health assessment for that child. Under the heading “Family History”, it is stated, inter alia:
…although [Ms Lannick] and [Mr Bahri] are separated, [Mr Bahri] does visit the children daily…[Y] has been hospitalized for a total of 1 month over the previous few weeks due to failure to thrive. [Ms Lannick] was required to be away from [X] during this time and was cared for primarily by her father.

Exhibit E are photos relating, inter alia, to the children. One photo is a photo dated 31 December 2017 of the mother at the Location Z restaurant. Another photo dated 3 February 2018, is a photo of the children and the mother having a picnic with the photo taken by the father. Another photo dated 16 February 2019 shows the children together at the father’s place when the father was looking after them.
Exhibit F is a copy of a series of police COPS entries, including one for 30 March 2018, relating to the parties. The entry for 30 March 2018 indicates that on this date the police spoke to the mother and confirmed that all relevant parties were aware of and compliant with their ADVO conditions. This entry also states the police made further enquiries, regarding any unreported breaches of the ADVO and ensured that no current breaches were detected. It states also that the mother is aware of the next court date. A COPS entry for 10 October 2018 was in similar terms.
Child Dispute Conference
A Child Dispute Conference was held on 2 December 2020 by Ms AB, family consultant.
The mother’s allegations made to the family consultant of family violence by the father, including controlling behaviour, were significantly consistent with her evidence.
The father stated that he wants the children to attend Islamic scripture class at school. He said that the mother converted to Islam and the children were supposed to be raised Muslim.
Under the heading “Future directions”, the family consultant stated, inter alia:
25.Very serious allegations of family violence have been made against [Mr Bahri]. It appears that he has been subject to four ADVOs in the past, protecting three different people, one who was a child at the time. It is unclear if he has been charged and/or convicted of violent offences. If [Ms Lennick’s] allegations have veracity, then there may be serious concerns for her and the children’s safety if [Mr Bahri] is aware of their location or is spending time with the children, particularly as she alleged that a family violence dynamic continued for up to five years after the separation. In addition, according to [Ms Lannick], [Mr Bahri] has made direct threats of harm towards the children, and the children have reportedly been injured during family violence incidents. These issues may be a matter for the Court’s determination.
Family Report
Ms AC, family consultant, was the Family Report writer; her Family Report is dated 24 September 2021. She held interviews in August and September 2021. The children were not interviewed and nor were observations taken between the parties and the children. The Family Report writer stated that her assessment took place during the period that COVID-19 stay at home orders were impacting the Greater Sydney community.
The Family Report writer noted that the mother did not wish to disclose her current address due to expressed fears for her safety. She also requested that no identifying information about her partner be included in the report, because of concerns for his safety.
The Family Report writer noted that the father was a practising Muslim.
The Family Report writer noted that an interim order was made on 11 March 2021, providing for the children to live with Ms Lannick and spend no time with Mr Bahri. The children were also put on the Family Law Watchlist, and Mr Bahri was to attend the V program at W Family Centre.
Mr Bahri presented as a respectful and well-spoken man, who expressed disappointment and sadness that he has not been able to spend time with his children since October 2019.
Mr Bahri stated that he believes that it is appropriate for the children to spend equal time with each parent because “I am the father, and they should be equally shared between their mother and father. I can protect them and teach them respect what is good and what is bad.”
Mr Bahri stated that he has not completed the V program because it has been cancelled due to the recent COVID-19 outbreak, and he does not know when the program will be available. He said that he is currently on their waiting list. He further stated that he has completed a two day anger management program facilitated by W Family Centre.
Ms Lannick presented child focussed and protective of the children from potential future harm that may be perpetrated by Mr Bahri. She expressed significant concerns for the children’s psychological wellbeing and safety if they were ordered to spend time with Mr Bahri. She stated, “If [the children] have to spend time with him, it will wreck them. I have worked so hard for X to be ok…I don’t think I would cope either.”
Ms Lannick stated that Mr Bahri arranged an Islamic marriage ceremony in 2013. She said that she was given no prior notice, and it was conducted in Arabic, while she was in her pyjamas. She stated that Mr Bahri told her “we are getting married, it doesn’t mean anything to you, but for me, then I can have sex with you.”
Mr Bahri stated that there is no current ADVO between him and Ms Lannick. He said there were three prior ADVOs, one of which protected the maternal uncle, and the others protecting Ms Lannick from Mr Bahri. He further said there is a current provisional ADVO to protect his former partner, subsequent to his relationship with Ms Lannick, from him. He said the matter has been adjourned until June or July 2022.
When Mr Bahri was asked if he has ever behaved in a manner to cause Ms Lannick or the children to feel afraid of him, he stated, “everyone gets angry, but it’s all normal. I might have screamed at [Ms Lannick] when the kids are not with her, but it was never over the top.” He denied behaving in an abusive manner toward the children, “even when I found her on Tinder and found condoms in her place. I control my anger.” He went on to say that on numerous occasions, Ms Lannick thanked him for not hurting or abusing her for her actions.
Ms Lannick alleged that Mr Bahri was sexually abusive toward her during their relationship and since separation. She said, “He always said I had to do it. I felt obligated to shut him up [and] make him happy.” She said that Mr Bahri often agreed to care for the children so that she could attend work, and then demand she provide him with oral sex when she brought the children to his home, and if she did not comply, he would inform the children they were leaving. She said this made the children upset, and therefore she complied, by going upstairs with Mr Bahri. She did not indicate whether or not the children were exposed to this behaviour. She further alleged that Mr Bahri often attended her home unannounced and stayed for dinner.
Ms Lannick said he did not spend time with the children, and demanded that she have sex with him after the children went to bed. She stated that Mr Bahri informed her that if she does not comply, “the angels will curse me.” She said that she often placed a pillow over her face and would count until it was over. She said, “He didn’t care [that] I thought he was disgusting.”
Ms Lannick alleged that Mr Bahri consistently behaved in a controlling manner toward her. She said that she was “not allowed” to wear make-up, and on one occasion he forced her to cover her arms with a men’s shirt over her maxi dress on a hot summer day. She said he controlled who attended the home, and said that she had to call him prior to her leaving the house. She further said that Mr Bahri monitored the content in her phone and had, on many occasions, taken her phone without permission. She said that whilst she had social media, she deleted the apps from her phone when he attended her home. She further said that, Mr Bahri demanded that she send him photos of her location or video call him when he cared for the children “so he knew where I was.”
Ms Lannick said that she continued to feel intimidated and controlled by Mr Bahri after their separation, because, according to Mr Bahri, they were still married under Islamic law. She said that, in 2018, Mr Bahri searched through the rubbish bins to find used condoms. She said he interrogated her for days, at times, forcefully waking her from her sleep. She went on to say that “I said yes, there [were condoms], maybe he will realise I have moved on, but it made it worse.” She further said she experienced financial hardship after their separation because he did not provide any child support for the children. She said at one point, she begged him to buy nappies, however, “he told me it’s my problem.”
Ms Lannick alleged that Mr Bahri was verbally abusive toward her during their relationship and since separation. She said that he yelled at her in front of the paternal uncle, has called her a “slut”, “whore”, “dog”, and a “shot mother.” She said that he accused her of having sex with “hundreds of men.” She said that she “didn’t care” what he said to her, however, his comments to the children caused her the most upset.
Ms Lannick alleged that Mr Bahri made threats to harm and kill her. She said the children witnessed his threats, and became scared and distressed. She said that he “always” threatened to take the children, and to harm them. She said that he made religious threats against her if she did not have sex with him, such as she will “burn in her grave” and be “punished.” She further said that he behaved in a threatening manner by attending her workplace. She said that, while she attended a lunch date in 2019, he attended and paced around the premises where she was employed. She said her manager contacted her to inform her that he was scaring everyone. Ms Lannick stated that he arranged for the Sheik to attend her home on a weekly basis without her permission to explain her duties as a wife. She said that, despite informing the Sheik that they were separated, he insisted this was not the case because a wife cannot separate from her husband. She can only leave if he divorces her.
Ms Lannick alleged that the children were exposed to family violence perpetrated by Mr Bahri toward her. She said that he told the children “mum will burn in hell, you will never see dad again, you’re all going to die.” She said that Mr Bahri told her that the children were “better off dead now before they hit puberty.” She said that such comments caused the children to become extremely distressed, and therefore, she did not allow any further contact from October 2019 onwards. She said she became more fearful for the children’s safety at this point because “he knew I would raise them as Christians.” Ms Lannick stated that Mr Bahri became more adamant to see the children, however, because of his strong religious views; she said she is too fearful to allow the children to spend time with him, “he does not care about this life; this life is nothing to him as long as he gets to paradise.”
Ms Lannick alleged that Mr Bahri physically abused the children, stating that he smacked them, on one occasion, and threw F into the car when Ms Lannick attempted to collect them from his car. She further alleged that the children have been harmed by Mr Bahri when he has attempted to harm her, causing the children to become fearful of him, especially when he has “been in a rage.”
Ms Lannick alleged that Mr Bahri was verbally abusive toward the children. She said that he told F that “you’re not my real child, I’m not your dad,” and “it’s your fault your mum won’t be with me” and has called her dumb, and caused her to feel distressed and rejected.
Ms Lannick stated that the children became very distressed when Mr Bahri attended their school playground in March 2020, without first attending the school office. She said, “F walked up to him and said ‘you’re not allowed to be here’.” She said that whilst X initially sat on his lap, she became confused and started crying. Subsequent to this event, she said that F experienced difficulty sleeping for four to five nights and requested to change schools. She said X then developed symptoms for school refusal, which have eased over time.
Mr Bahri denied all allegations made by Ms Lannick that he physically abused the children, or made threats to harm or kill them. He stated, “I am a very calm person. I don’t hurt my kids. I believe she has taken advantage of me.” He alleged that Mr M attempted to hit him and subsequently harmed X, and further said that, after the suicide of Ms Lannick’s cousin, he explained to Ms Lannick that children who die prior to adolescence “go straight to heaven.” He further said that the children appeared happy to see him when he attended their school to visit them.
Ms Lannick’s partner indicated that he does not know Mr Bahri, and has not observed any interactions between him, Ms Lannick nor the children. He stated that both X and F were anxious and upset after Mr Bahri attended their school. He said that X experienced heightened separation anxiety each weekday morning; she would cry and hold on to her teddy bear during class. He further reported that F experienced difficulty sleeping, yet, after he and Ms Lannick reassured her that she was safe, she settled. He said that both children remained at home for a few days after Mr Bahri attended their school.
Mr Bahri said “I maybe I will [suffer from a mental illness] in the future if I don’t see my kids” He further said that, “I can get very upset because I am not seeing the children.”
Mr Bahri reported that, prior to October 2019, his communication with Ms Lannick was “good,” respectful and child focussed. He attributed the deterioration in his relationship with Ms Lannick to the negative influence of her friends. He stated, “I believe her friends, they are bad. They drink and don’t behave appropriately, she wants to be like them, drinking, smoking and going on dates…I think this is what ended it.”
Ms Lannick stated that F does not like Mr Bahri, because of his treatment of her, and became distressed after he visited her and X at school. She said that F refers to Mr Bahri as “the old dad” and F ensures that X does not overhear any conversations she has with Ms Lannick about Mr Bahri.
Ms Lannick described X as a child who has experienced severe anxiety. She reported that X “checks we have petrol before we drive anywhere. [X] shakes and cried uncontrollably when it storms” and often requires Ms Lannick to walk her to her classroom each day. She said, “All the emotional problems are due to what she has seen and been involved in.” She said that X’s mental health has greatly improved when she was no longer exposed to Mr Bahri, and has established a close and positive relationship with her partner. Ms Lannick expressed concern for X’s wellbeing if she were to be informed of the current court matter. She said, “X won’t even let me say his name.”
Ms Lannick described Y as “carefree [and] nothing bothers him.” She said that he was very young when she and Mr Bahri were in a relationship, and therefore, does not remember him.
Under the heading “Evaluation”, the Family Report writer stated that if Ms Lannick’s account of Mr Bahri has substance, it is likely that the children have experienced ruptures in their relationship with Mr Bahri. She stated that since Mr Bahri has not spent time with or spoken to the children for approximately 21 months, with the exception of his brief visit with F and X at school, it is also likely that the children’s relationship with him is limited. She stated that if Ms Lannick’s account of family violence and treatment of the children has substance, then it is also likely that the children are fearful of him.
The Family Report writer stated that Mr Bahri described X as a healthy child, and indicated that she may also be sensitive in nature. Ms Lannick described X as a generally anxious child, and the most affected by Mr Bahri’s behaviour towards the children and Ms Lannick. Whilst X may naturally have an anxious temperament, it is known that children who have been exposed to traumatic incidences are more susceptible to mental health issues such as anxiety and depression.
The Family Report writer stated that Sleeve 1 of NSW Police records, while yet to be tested in Court, are suggestive of a dynamic of family violence perpetrated by Mr Bahri towards Ms Lannick.
The Family Report writer stated that Ms Lannick alleged that Mr Bahri was controlling, as well as, physically, sexually and psychologically abusive toward her during their relationship, with an escalation of such behaviours post separation. Ms Lannick further alleged that the children were exposed to physical and verbal abuse, and other intimidating behaviours perpetrated by Mr Bahri, which has adversely effected them, and caused them anxiety and distress. Ms Lannick described family violence across multiple domains, which is most consistent with coercive and controlling violence. This type of family violence is generally characterised by a pattern of power and control by one partner over another, for the purposes of creating fear of, and submission to the perpetrator through the use of threats, continued verbal and emotional abuse, monitoring behaviours and actual harm. The subsequent effects on the victim can also vary depending on the longevity and types of abuse, in addition to the intensity of the abuse utilised by the perpetrator.
As indicated above, being subjected to coercive-controlling family violence is known to have detrimental impacts on children, including their psychological wellbeing and physical safety. Family violence of this type is also associated with parenting deficits in the perpetrating parent, including inappropriate use of authority and/or coercive discipline methods that escalate to physical abuse, a limited capacity to separate the children’s needs from the perpetrator’s own needs, and a low tolerance for age appropriate behaviours. Additionally, family violence of this type can also be associated with parenting deficits for the victim parent, including a decreased ability to meet the children’s need due to stress relating to family violence, increased financial pressures and hypervigilance to further family violence that have a detrimental impact on parenting capacity, which usually ceases upon the victim feeling safe. If Ms Lannick’s allegations regarding family violence are found to have veracity, it raises concerns that Mr Bahri will continue to exercise power and control over Ms Lannick in parenting arrangements, placing the children at risk of being exposed to further violence and subsequent psychological and/or physical harm. If the aforementioned concerns are found to have veracity, then a referral to a registered Men’s Behaviour Change Program for Mr Bahri is recommended. It is noted that Orders dated 11 March 2021, Mr Bahri is to complete the V program, however, according to the parents, due to the recent COVID-19 outbreak, the program has not yet begun, and no future date has yet been provided.
The Family Report writer stated that Ms Lannick alleged that the children were exposed to family violence perpetrated by Mr Bahri, and that X was physically harmed as a consequence of this dynamic. She further alleged that the children experienced verbal abuse, threats to harm, and harsh parenting by him. If there is veracity to the allegations that Mr Bahri has engaged with the children in a way that has left them physically or emotionally harmed by Mr Bahri, then this likely contributed to a situation of the children rejecting Mr Bahri, and becoming realistically estranged. An arrangement that exposes the children to further contact with Mr Bahri may place the children at unacceptable risk of harm.
The Family Report writer stated that Ms Lannick indicated that Mr Bahri did not accept their separation on religious grounds, and maintained contact with her, albeit in a coercive manner, for the purposes of meeting his own needs. They each reported that communication ceased in October 2019, whilst Mr Bahri expressed shock and disbelief that Ms Lannick stopped answering his calls and subsequently changed her phone number. In light of Ms Lannick’s allegations, this could be viewed as a protective measure to ensure the ongoing safety and wellbeing of the children. Ms Lannick proposed to have sole parental responsibility for the children. In light of the dynamic of power and control alleged by Ms Lannick, the likelihood of re-establishing and maintaining an effective co-parenting relationship essential in exercising shared parental responsibility is limited, and increases the likelihood that the children will be exposed to parental conflict. If this were to occur, the children would likely experience poorer long-term outcomes in relation to their well-being and development.

The Family Report writer stated that Mr Bahri proposed that the children spend every Saturday with him, and that the children’s time with him progress to a week-about basis. In contrast, Ms Lannick proposed that the children spend no time with Mr Bahri. There may be some benefits to the children having an ongoing relationship with Mr Bahri, if it is considered safe for the children to do so. The Family Report writer stated that an arrangement that provides for the children to spend time with Mr Bahri may affect the established sibling relationship between F, X and Y, and based on Ms Lannick’s account of F’s alleged experience and views of Mr Bahri may cause F’s anxiety and concern for her siblings to intensify.
The Family Report writer stated that in the instance that Ms Lannick’s account has substance, then spending time with Mr Bahri would likely be to their detriment, and potentially result in the children being exposed to further family violence and/or parental conflict, psychological abuse and physical abuse. If this were to occur, it is likely to adversely affect their mental and physical health. Further to this, if Ms Lannick’s allegations regarding Mr Bahri threatening to harm and/or kill the children has substance, an order providing for the children to spend time with Mr Bahri may result in injury and/or death.
The Family Report writer made these recommendations:
·Unless the evidence before the Court suggests otherwise, it is recommended that an order be made for the children to live with Ms Lannick;
·Unless the evidence before the Court suggests otherwise, it is recommended that an order be made for the children to spend no time with Mr Bahri;
·Unless the evidence before the Court suggests otherwise, it is recommended that an order is made for Ms Lannick to have sole parental responsibility for the children.
The Family Report writer gave oral evidence aspects of which are discussed under the section 60CC considerations below.
The Court accepts the evidence of the Family Report writer subject to any view of the Court to the contrary, whether express or implied, as discussed below under section 60CC of the Family Law Act 1975 (Cth) (the Act).
RELEVANT LEGAL PRINCIPLES
Section 60B of 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).
Under section 60CC(2A) of the Act, the Court, in applying the meaningful relationship primary consideration and the need to protect primary consideration under section 60CC(2) of the Act, is to give greater weight to the need to protect primary consideration.
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
(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
In Saif & Saif [2020] FamCA 119 Foster J stated:
95.The reality is, in the context of this interim hearing, that the Court is obliged to have regard to the maintenance and promotion of the children’s relationships with both parents. A relationship may be less than optimal but nonetheless meaningful: (Godfrey & Sanders [2007] FamCA 102 at [33]-[36]; Sigley & Evor (2011) 44 Fam LR 439 at [182]).
96.In Mazorski v Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
97.In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The Court finds that the parties separated in December 2014 following which the mother, F and X, lived in separate premises to the father; the Court accepts the evidence of the mother in this regard. In this context, the Court takes into account, inter alia, the parties living in separate premises after December 2014, and the mother informing health professionals on 28 June 2016 (see the Community Health report of 6 July 2016 at page 51 of Exhibit B) that the parties were separated.
The children have a meaningful relationship with the mother and will benefit from a continuance of that relationship. The children’s primary attachment is to the mother; the mother has been their primary carer from birth to date.
The father has not spent time with the children since October 2019. He saw them briefly at their school on 5 June 2020. The children have no meaningful relationship with him.
Prospectively, it is possible that the children may benefit from having a meaningful relationship with the father but only if it is safe for them to do so. As discussed below under the need to protect primary consideration, presently it will not be safe for the children to develop a relationship with the father. In this context, the Court notes that under section 60CC(2A) of the Act the Court, when applying the primary considerations, is to give greater weight to the need to protect primary consideration and in these proceedings the Court does so.
(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother contends that the father was the perpetrator of family violence, including coercive and controlling family violence, which the father denies.
On the balance of probabilities, the Court finds that the father perpetrated family violence, including both alleged physical and coercive and controlling family violence, against the mother, as alleged by her in her affidavit filed 11 November 2021 and confirmed in her oral evidence, and as stated by her to the family consultant Ms AB and to the Family Report writer. Such family violence, as asserted by the mother, included the father physically assaulting her, coercing her to have sex with him through threatening verbal behaviour, physically aggressive behaviour towards F, and threats to kill the children before they reached puberty.
In relation to the above findings relating to family violence, in addition to the mother’s evidence relating to family violence, the Court takes into account the following matters (including making related findings):
(a)On about 20 March 2013 (being a few months prior to the beginning of the parties’ relationship), Ms H, the mother of the father’s child G, had reported to police the father’s telephoning her to see this child;
(b)On about 1 August 2013 an incident occurred between the father and Ms H in a car (and in which car the child G was present) involving Ms H spitting at the father and the father becoming very angry and upset and holding Ms H to calm her down, with the father attending upon police to give his version of the incident;
(c)The mother leaving the family home with F and X in December 2014 and thereafter living with the children and F in separate premises from the father;
(d)The father’s statements to the mother, after separation in December 2014, that the mother was still his wife Islamically having participated in an Islamic marriage ceremony;
(e)The father admits to sexual activity with the mother after December 2014; the father gave evidence that on the basis of that activity he believed the parties were still in a relationship;
(f)The father assaulted the mother’s brother Mr M in January 2017 (which had resulted in the child X being inadvertently hit on her lip and injured). The mother had then contacted the police who had issued an ADVO against the father for the protection of Mr M;
(g)On about 2 December 2017 an incident occurred outside Ms H’s residence with the father having attended her residence unannounced to see the child G. Ms H was shouting and screaming at the father because the father had requested to see this child. The father admitted that every fortnight, unannounced, he would attend Ms H’s residence to spend time with this child yet Ms H would tell him to go away. The police had issued an AVO against the father for the protection of Ms H;
(h)In about March 2018 the father assaulted the mother. The father admitted having raised his voice at the mother because of who she was with on the evening of the assault. The police were contacted by the mother and the father was arrested and charged with assault and later convicted of assault against the mother. A two year final ADVO was made against the father for the protection of the mother which expired on 16 May 2020;
(i)In October 2019, the father had grabbed F and threw her aggressively back into a car as a result of which this child’s arm struck the frame of the car, after which incident the mother ceased facilitating the children spending time with the father;
(j)On about 24 February 2020 and 4 June 2020 the father had attended, unannounced, upon Ms H’s residence to see the child G, despite the opposition of Ms H, and Ms H had reported the father to the police;
(k)On 5 June 2020, the father had gone to the children’s school unannounced and had seen the children briefly;
(l)The father admitted to having become angry towards his previous partners “to a certain stage”;
(m)The father’s former partner Ms T, in 2020, had contacted the police in relation to the father, following which an ADVO was made against the father for the protection of this woman; this woman had complained to the police that the father had become quick to anger, had begun to exert controlling behaviours towards her, and had also verbally abused her.
The Court has not overlooked the content of communications from the mother to the father (and from the father to the mother) after December 2014 and up to October 2019, including ostensible affectionate and positive communications, and has not overlooked certain activities participated in by the parties, such as family picnics and dining at restaurants, and the parties being present at the other’s residence. The Court accepts the mother’s evidence that she so communicated with the father and participated in certain activities with him and with the children, including the parties being present at the other’s residence, to keep the peace and placate him and to avert the father perpetrating family violence. Similarly, the Court accepts the mother’s evidence as to engaging in certain sexual activity with the father after December 2014 and up to October 2019 for the same reasons.
The Court has also not overlooked the mother permitting the children to spend time with the father after December 2014 and up to October 2019. The Court accepts the mother’s evidence that in part she permitted such time to be spent to keep the peace and placate the father and to avoid him perpetrating family violence, and that she in part engaged the father to care for the children on occasion when the maternal grandmother was unable to care for them. Further in this context, the Court accepts the mother’s evidence that she did not regard the ADVO against the father in 2018 as providing her with protection.
In this present context (see the above two paragraphs in particular), the Family Report writer gave this oral evidence:
MR PICKERING:       That’s okay. Because you had referred to a potential hypothesis in terms of taking the father to the airport or picking the father up from the airport – you said one hypothesis was that it may have enabled her to – the mother to present as continuing in the relationship, but it provided her an opportunity to depart from the relationship…
[MS AC]:…if the court finds that there is coercive, controlling violence, as I mentioned in my report, it’s not uncommon for the victims in that dynamic to do what they can to keep themselves and their children safe. And if there was a continuing dynamic of monitoring behaviours as is reported by [Ms Lannick], then certainly it wouldn’t be – it wouldn’t be farfetched in my mind that – that she may continue to act as though things are okay in order to then have an opportunity to – to be safer.
Okay?----So just in terms of understanding that dynamic, that would not be unusual because we know that victims do what they can to keep themselves safe.
…
MR PICKERING:       You would have heard reference to a thesis in the mother’s evidence that she kept up this image in order to placate the father. Would you say that she would have been unlikely to do that for five years?
[MS AC]:                   It’s difficult to say how long someone who may – may have been a victim of coercive and controlling violence might keep up a façade of – of things being okay for the sake of – of the children. My understanding is that coercive, controlling violence is something that can continue on after separation. It’s something the mother has – has indicated to me in interview. So in terms of her motivations, it may be that for the purposes of keeping herself and the children safe, she has had family gatherings of some kind in a context where she might have had some assessment of, “Well, this is okay for the moment.” Our understanding of this type of violence is that victims of violence often are quite hypervigilant and aware of any changes in maybe the perpetrator’s behaviour and might make decisions about safety in the moment based on a perpetrator’s behaviour. So if in one moment she felt it was potentially okay to meet for the children to see their father, then that might have been an assessment that she in and of herself had to make. In terms of your other question with regards to there not being an understanding – any – the finding – if there hadn’t been any finding of violence, then that would have been something families would – would likely have done was to – to meet. But I’m – I’m coming from this from the perspective of there’s some concerns that have been raised. My awareness is that victims still might maintain some contact until they’re – they’re able to leave safely, and that might have been the context here. And I’m aware that the court might obviously need to – to look at those allegations to find whether that has or has not occurred.
The father denies perpetrating family violence against the mother. The Court finds that the father lacks significant insight into the nature and harmful effects upon the mother and children of the above referred coercive and controlling family violence. At no time has the father accepted any significant personal responsibility in relation to such violence perpetrated upon the mother. The Court should also state in this context that it finds that the father has difficulty regulating his emotions, in particular anger, so as to be able to act in a manner that is not abusive to others.
By reason of the father’s perpetration of coercive and controlling family violence against the mother and his related lack of insight into the effects of that violence, there is an unacceptable risk of physical and psychological harm posed to the children in spending supervised or unsupervised time with the father. The evidence of the Family Report writer is consistent with this view.
The Court recognizes that a no time order is a drastic order, and it recognizes, inter alia, the possible grief that the children may suffer relating to the loss of their relationship with the father as they mature. However the Court refers to its findings above in relation to family violence including coercive and controlling family violence perpetrated by the father, including its related risk findings in respect to the children spending time with the father. The father has no insight into the harmful effects of this violence upon the mother and children. The Court refers to the evidence of the Family Report writer relating to family violence, including coercive and controlling family violence, relating to the parenting deficits associated in the parent perpetrating family violence, the vulnerability of children to mental health issues exposed to family violence (with the Court observing, again, the anxiety issues experienced by the child X including her anxiety related treatment), the detrimental impacts on children in being exposed to coercive and controlling family violence, and the adverse impact on the victim parent’s parenting capacity in being exposed to such violence.
The father, prospectively, if seeking to commence fresh proceedings and needing to satisfy the threshold requirements under so-called rule in Rice & Asplund (1979) FLC 90-725 (that is, establishing, in particular, that there has been a material change in circumstances since the Court’s final parenting orders), with a view to obtaining orders relating to spending time with the children, would probably at least need to adduce evidence whereby he assumed responsibility for his previously perpetrated family violence, acknowledged the harm experienced by the mother and children in relation to such violence, and present as motivated to change (he may have engaged, for example, with a specific therapeutic behaviour change program). He may also possibly need to demonstrate by appropriate evidence that his relationships with other women have been free of any pattern of significant family violence. In this context the Court refers to the evidence of the Family Report writer.
The nature of such above evidence potentially to be adduced by the father is probably presently incapable of being the subject of a discrete review mechanism contained within an order of the Court.

The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) Additional considerations
(3)(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 children are probably fearful of the Father by reason of their lived experience of being exposed to family violence perpetrated by the Father towards the Mother. The Court attaches some weight to this issue. Such exposure probably contributed to a rupture of the children’s previous relationships with the Father. These views of the Court are consistent with the evidence of the Family Report writer.
(3) (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 discussions above under the meaningful relationship primary consideration.
The children have positive relationships with the maternal grandmother and the mother’s partner.
(3)(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
Post separation and up to October 2019 the father sought to take up opportunities to spend time with the children except for a period of about nine months in 2018 when he refused to spend time with them. The mother has been making the major decisions for the children, at least since separation to date. Subject to the above, both parents would appear to have taken, or sought to have taken, such opportunities.
(3)(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 parents would appear to have maintained the children when the children were in their respective care, however the preponderance of the children’s care, time wise, has been provided by the mother. The father has not paid regular child support for a significant time as asserted by the mother.
(3)(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 discussions above under the primary considerations, in particular under the need to protect primary consideration.
(3)(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.
(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
The mother has such capacities.
As to the father, the Court refers to its discussions above under the need to protect primary consideration in relation to the issue of family violence perpetrated by the father and his lack of insight in relation to this issue, and which indicates the father probably lacks some significant capacity to provide for the emotional needs of the children.
(3)(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 suffers anxiety and receives treatment. Again the Court refers to its discussions above under the need to protect primary consideration in relation to the father.
(3)(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.
(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother has demonstrated appropriate attitudes towards the children. In relation to the father, the Court refers to its discussions above under the need to protect primary consideration.
(3)(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.
(3)(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.
As to this additional consideration, the Court refers to its discussions above in these Reasons as to the evidence in relation to ADVOs, and under the need to protect primary consideration.
(3)(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.
The Court refers to its discussions above under the need to protect primary consideration as to ensuing risks in making the father’s proposed orders.
Orders relating to the children spending no time with the father as discussed above under the meaningful relationship primary consideration would be least likely to lead to the institution of further proceedings in relation to the children.
(3)(m) Any other fact or circumstance that the Court thinks is relevant.
The mother and ICL’s proposed orders relating to proposed restraints upon the father (communicating with the children and/or the mother, restraint from attending the children’s school, and restraint upon the parties removing the children from Australia and related Airport Watchlist Order) will provide appropriate protection to the children and/or the mother having regard to the Court’s discussions and findings above under the need to protect primary consideration. The evidence of the Family Report writer is consistent with these views.
Parental responsibility
The ICL and mother seek an order for sole parental responsibility for the children which is opposed by the father. He in turn seeks an order that the parties have equal shared parental responsibility for the children. It will be in the best interests of the children that the mother have sole parental responsibility for them. In this regard, the Court takes into account the mother’s lack of trust with the father in relation to the children, the parties’ lack of any significant co-parenting relationship, the mother’s satisfactory primary care of the children from birth to date and her satisfactory major decision-making in relation to the children, the father’s perpetration of family violence and related lack of insight into such violence (as discussed above under the need to protect primary consideration), and the parties’ different views relating to the children’s religious upbringing. Such an order will minimise the risk of conflict occurring between the parties if they otherwise had to reach agreement in relation to major decisions for the children. The Court is not satisfied that these parties could reach agreement in a timely fashion in relation to major decisions affecting the children without conflict. The evidence of the Family Report writer is consistent with the above views relating to parental responsibility.
SUMMARY
Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view that it will be in the best interests of the child to make the following parenting orders:
1.The children X born in 2014 and Y born in 2016 (“the children”) live with the mother.
2.The mother have sole parental responsibility for the children.
3.The children spend no time with the father.
4.The father and/or his agents are restrained by injunction from communicating with, contacting or attempting to contact the children and/or the mother.
5.The father, and/or his agents, are restrained by injunction from attending any school which the children attend.
6.The mother is to ensure that X continues to attend upon all appointments as scheduled by all of X’s mental health care practitioners, until such time as those practitioners recommend otherwise and comply with all recommendations given by those practitioners.
7.Pending further Order, the mother and the father, and his/her servants and/or agents, be and are hereby restrained by injunction from removing or attempting to remove the children X born in 2014 and Y born in 2016 from the Commonwealth of Australia.
8.The Marshall and all officers of the Australian Federal Police and of the police forces of the various states and territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the said children, X born in 2014 and Y born in 2016 on the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the children’s name on the Watchlist until further Order of the Court.

I certify that the preceding two hundred and forty-five (245) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.
Associate:
Dated: 16 December 2022

File number(s):	PAC 5379 of 2020
Judgment of:	JUDGE NEWBRUN
Date of judgment:	16 December 2022
Catchwords:	FAMILY LAW – PARENTING – Final hearing – Best interests of children – Final Orders made.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DAA
Cases cited:	Saif & Saif [2020] FamCA 119
Division:	Division 2 Family Law
Number of paragraphs:	245
Date of hearing:	4–5 October 2022, 25 November 2022
Place:	Parramatta
Counsel for the Applicant:	Mr Pickering
Solicitor for the Applicant:	Ark Law Lawyers
Counsel for the Respondent:	Ms Bateman
Solicitor for the Respondent:	Inner West Solicitors Pty Ltd
Counsel for the Independent Children's Lawyer:	Mr Blank
Solicitor for the Independent Children's Lawyer:	Claremont Legal

PAC 5379 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR BAHRI Applicant
AND:	MS LANNICK Respondent

Order made by:	JUDGE NEWBRUN
DATE OF ORDER:	16 DECEMBER 2022