Barrakat and Barrakat - [2016] FamCA 953

FAMILY COURT OF AUSTRALIA

BARRAKAT & BARRAKAT

[2016] FamCA 953

FAMILY LAW – PARENTING – Where presumption of equal shared parental responsibility rebutted – Where there are findings of family violence – Where the father’s time with the children is to be supervised – Where a final order for supervised time appropriate in the circumstances.

Family Law Act 1975 (Cth) ss 61DA and 65DAC

Gorman & Huffman and Independent Children’s Lawyer [2016] FamCAFC 174
H v K [2001] FamCA 687
Moose & Moose (2008) FLC 93-375
Slater v Light (2013) 48 Fam LR 573

APPLICANT:

Mr Barrakat

RESPONDENT:

Ms Barrakat

INDEPENDENT CHILDREN’S LAWYER:

Lyrene Wiid

FILE NUMBER:

BRC

858

2013

DATE DELIVERED:

11 November 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

15, 16 & 17 April 2015 and 27 & 28 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McGregor of Counsel
(on 15, 16 & 17 April 2015)

SOLICITOR FOR THE APPLICANT:

John Davies & Co

(on 15, 16 & 17 April 2015)

THE APPLICANT:

In Person

(on 27 & 28 January 2016)

COUNSEL FOR THE RESPONDENT:

Ms Frizelle of Counsel

SOLICITOR FOR THE RESPONDENT:

Sempre Vero Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Slade-Jones of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Lyrene Wiid Lawyer & Migration Agent

Orders

That all previous parenting orders are discharged.
That the children, B born … 2003 (male), C born … 2005 (male) and D born … 2008 (male), (“the children”) shall live with the mother.
That the mother shall have sole parental responsibility for all “major long-term issues” (as that term is defined in the Family Law Act 1975 (Cth)) in relation to the children, except on the issue of the children’s names.
That when the mother exercises sole parental responsibility and makes a decision about any major long-term issues pursuant to paragraph (3) hereof in respect of any of the children, she shall inform the father of that decision in writing in a timely manner.
That the mother is restrained from making any change, at law, to any of the children’s names as they are stated in the children’s Australian citizenship papers without the written agreement of the father, but notwithstanding this restraint she may refer to any of the children on a day to day basis by such name as she and that child may agree upon.
That commencing this month, the children shall spend supervised time with the father as agreed between the mother and the father in writing, but failing agreement, for two (2) hours on one Saturday each calendar month at the Uniting Care, Suburb F Children’s Contact Service with the father to pay the costs of the supervision service provided by that Contact Service.
The father, the mother and the Independent Children’s Lawyer shall forthwith do all things necessary to facilitate a regular two (2) hour supervised session on one Saturday per month being put in place at the said Suburb F Children’s Contact Service and once that is done the Independent Children’s Lawyer is discharged.
That by no later than 2:00 pm on the day before the scheduled two (2) hour supervised session with the children, the father shall telephone and notify the Suburb F Children’s Contact Service of his intention to attend the session the next day or otherwise, and between 3:00 pm and 5:00 pm on that same day the mother shall contact the Suburb F Children’s Contact Service by telephone to find out if the father has notified the Service of his intention to attend the next day. If the Service informs the mother that the father will not be attending the session the next day or has made no contact with the Service to inform it of his intentions, the mother is excused from taking the children to the Service for the scheduled visit the next day, such that she is only required to take the children to attend the scheduled visit if the Service has informed her that it has received a message from the father that he will be attending.
That subject to paragraph (8) hereof, should the mother fail to present the children, or any of them, to a scheduled monthly supervised session with the father where the Service has informed her the day before of the father’s intention to attend, the mother shall make the children, or that child who missed the session, available for an alternative, make up session, to be arranged by the mother, the father and the Children’s Contact Service at the mother’s expense.
That should the Suburb F Children’s Contact Service no longer be able to provide the necessary monthly supervised service for any reason other than the father’s repeated failure to attend scheduled sessions, the mother and the father shall take all necessary steps to agree upon and make arrangements for such service to be provided by another comparable government funded children’s contact service, but should the Suburb F Children’s Contact Service (or any children’s contact service used in its place) terminate the service because of the father’s repeated failure to attend the monthly scheduled sessions, the children’s time with the father pursuant to this parenting order shall cease.
That the father shall not speak with the children when he is with them at the Children’s Contact Service other than in the English language.
That the father shall not attend at, or knowingly go within 200 metres of any school that the children or any of them attend or the mother’s home, place of work or place of religious worship.
That the father shall provide the mother with the details of his residential address, postal address, contact telephone number and any email address he has and he shall advise her of any changes to any of those details as such changes happen.
That the mother shall provide the father with a postal address to which he can post letters to her that she will receive and she shall advise him of any changes to that as such change happens.
That the children, or any of them, shall communicate with the father by telephone or email, as each of them desire from time to time, with the Independent Children’s Lawyer to inform them of this right, and the other relevant provisions of this parenting order as she determines appropriate, and the mother shall use her best endeavours to assist the children or any of them so as to facilitate the communication with the father that each such child desires.
The father shall not initiate contact with the children or any of them and shall only respond by email or text message to any email or text message he receives from the children or any of them.
That the father, Mr Barrakat born … 1962, and his servants and agents are hereby restrained from removing or attempting to remove or causing the removal of the children, B born … 2003 (male), C born … 2005 (male) and D born … 2008 (male), from the Commonwealth of Australia.
That it is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for a period of six (6) years from the date hereof.
That upon expiration of the period referred to in paragraph (18) hereof and subject to any further order of a court of competent jurisdiction, the Australian Federal Police shall cause the removal of the child or children’s names from the Watchlist.
That the mother, Ms Barrakat, shall be permitted to take the children or any of them from the Commonwealth of Australia for temporary overseas travel and any previous orders restraining her from doing so are discharged.
That the Independent Children’s Lawyer shall also provide a copy of these Orders to the Suburb F Children’s Contact Service when confirming the arrangements for the children’s time with the father.
That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Barrakat & Barrakat has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 858 of 2013

Mr Barrakat

Applicant

And

Ms Barrakat

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

Three boys, B, C and D, were born to the former married couple who are the parties to these contested parenting orders proceedings. The boys were born in North Africa whilst their parents were living there as refugees, displaced from their homeland by years of political and civil unrest, war and violence.
The family were able to secure immigration to Australia through this country’s humanitarian intake of refugees. They arrived in Australia in April 2012 and settled in G Town. Approximately one month after their arrival here, the mother and the children were living in a refuge for victims of family violence, after the mother left the home she shared with the father, taking the boys with her.
The mother and the father have remained separated ever since. The mother and the boys now live in Region J and the father now lives in K Town. The boys have spent very little time with their father since May 2012 and virtually all of such time they have spent with him has been supervised. This case is principally about the father wanting more time than that with the boys and his wanting it to be unsupervised.
I heard the competing applications over four days in April last year and then at the end of January this year. When the matter was adjourned part-heard in April last year, orders providing for the boys to spend regular supervised time with the father at a children’s contact centre were put in place. Evidence at the resumed hearing in January indicated that the father and the boys were seeing each other with a little more consistency than previously, but that there were still some real issues surrounding their spending regular time with him.
The father was legally represented during the first part of the trial last April but he was not represented in January this year. The mother was legally represented for the whole trial. There was an Independent Children’s Lawyer involved in the proceedings and she was also represented by counsel at the trial. After some initial difficulties with the organisation, interpreters proficient in the Eastern Swahili language spoken by the mother and the father were also utilised throughout the trial.
Whilst the father’s counsel told the Court in April last year that the father conceded sole parental responsibility for the boys to the mother, when the trial was re-convened in January, the father resiled from that concession and told the Court that he wanted shared parental responsibility for the boys. Nevertheless, on the evidence, that issue was relatively easy to decide in favour of the mother, just as I expect the father’s legal representatives clearly thought it was in April last year.
The real issue for determination in the matter became the question of whether the father should have any unsupervised time with the boys and, if not, then what amount of supervised time should he have with them. Relevantly, the ICL submitted that the boys should spend two hours of supervised time with the father once per month. The mother’s counsel submitted that it should only be two hours of supervised time on two to three occasions per year. The father made it clear to the Court he wanted whatever time the Court would give the boys with him, but that he preferred it to be unsupervised. Ultimately, I have determined to accept the submissions made on behalf of the ICL and to order that the three boys spend two hours of supervised time with their father once per month.

Some undisputed background

The father was born in a country in Africa. He is now 54 years of age. The mother was also born in that country and is currently 44 years of age. They apparently met in Africa in 1996 and then again in 2002 where they commenced a relationship and quickly agreed to marry. Both had independently fled from their homeland to get away from war and indiscriminate killing. The father’s parents are said to have been killed and all of his siblings displaced, such that he now says he does not know where any of them are. Some of the mother’s family were also killed and many of her large number of siblings also displaced by the violence.
The father was 40 years old when the couple met up again. He had been practicing as a preacher and was still doing that in 2002. They married in central Africa and then, in 2003, found their way north. The three boys were born and the father continued to preach whilst the mother worked in a professional occupation. The parties separated in April 2009 when the father left the household and took the two older boys with him. Those two children were quickly returned to the mother’s care by the police. The parties subsequently resumed their relationship in August 2010 when the father returned to the house in which the mother and the boys were living. In April 2012, the family arrived in Australia, after the mother had worked hard to ensure that they were able to come to live in Australia as refugees.
As I have already observed, the mother separated from the father soon after their arrival in Australia and they have lived separately and apart since.

The level of conflict and disagreement between the mother and the father

There is enormous conflict and disagreement between the mother and father about most everything that they say has happened since they met again in 2002. It begins with the circumstances of their marriage and events that transpired around that and it continues through to matters said to have happened in recent times in Australia. The matters they disagree upon are not matters that could simply be described as differences of interpretation or perception of events that happened as between them. Their disagreements are such that the only possible explanation for them can be, in my judgment, that one of them is being dishonest and not telling the truth about the matter upon which they have given evidence. After watching them both give their evidence in the trial before me, I was satisfied, on the balance of probabilities, that the one not telling the truth about these matters was the father.
The mother says that the father pressed her to marry him quickly and that they married according to religious marriage rites but that their marriage was never registered formally according to law in Africa. The father denies that, says they married lawfully, had their marriage registered, and obtained a Marriage Certificate which the mother subsequently stole from his possession and either disposed of or refuses to produce. However, despite saying early in the proceedings that he would produce evidence of it by getting friends in Africa to obtain a copy and send it to Australia, he never did produce any such evidence.
The mother said that she regretted marrying the father as early as their wedding night. She said that the day before the wedding, she told him that she was menstruating and that she would like to postpone the wedding for a few days because of that. She said that he promised her he would not expect sexual intercourse with her on their wedding night or until she was ready, even if they went ahead with the wedding on the planned day. She said she accepted that promise and agreed to go ahead with the wedding, but that on the wedding night he forced her to have sexual intercourse with him against her will, in any event. She told the Court that cultural norms prevented her from simply ending the relationship then and there, although she truly felt like doing so.
The father denied the mother’s allegations about that and says he honoured his promise. He said that he would never treat the mother other than lovingly. I did not believe him.
The mother said that merely was the beginning of a pattern of control and physical and sexual violence that she endured from the father throughout the rest of their time together.
The mother’s evidence is that once they were living in Country H, she began working. She said that she worked full-time and employed a full-time maid to provide care for the boys and also a cleaner. She said that she did not want the father caring for the boys as he was also violent towards them on a frequent basis.
The father denies that and says that although a maid was employed, he did not trust her to care for the children and so he “nursed and cared for them” himself.
The father said that the separation that occurred in April 2009 “was due to [the mother] committing a serious violation of [African] cultural law by bringing her father into [their] home in [Country H] unannounced and uninvited”. He made it clear that the person who was required to invite his father-in-law into the home was the father himself. The father said that matters were made worse by his father-in-law attempting to assault him whilst there and fostering “segregation” between him and the mother. The father said that his father-in-law pronounced a divorce between the mother and the father and took her to find another place to live. The father said that “a wife leaving the marital home to live in another residence is also a serious breach of … customary law”. The father said that he and the two older boys then moved to another unit in the city but he let the youngest remain in the mother’s care because he was still being breast-fed by the mother.
The mother said that during the first month or so of their separation, the father failed to take the two older boys to school more than one or two days per week; failed to pack lunch for them when he did take them to school (the mother was approached by the Principal about this she said); denied her contact with them; and left them locked in his residence whilst he went. She said she even went to his home but could not get in as it was locked even though she saw the boys inside the home crying. The mother said that she went to the “refugee committee” of the UNHCR to ask them for help and they did try to help but the father refused to make any changes. The mother said that she then went to the Country H Police and at the end of May 2009 they returned the two older boys to her full-time care. She said that the father then disappeared for some time and his residence was ransacked by unknown persons. She said she was even approached by the father’s landlord to pay the unpaid rent for him, which she did.
The father denied most of these assertions and said that the refugee committee actually said that all three children should be with him. He said that he voluntarily returned the two older boys to the mother’s care as he “was receiving invitations to preach the gospel from different churches all over the surrounding African nations”. I did not believe him.
The mother said that the father was not around again until over one year later, August 2010, and he then reappeared and “forced himself back into [her] unit”. It was a one bedroom unit and the mother and the boys slept in one room whilst the father slept in the lounge room, sharing that room with the maid. The mother said that he continued to demand they move to a bigger unit but would not get a job to help pay for it, so she got a second job and they moved to a two bedroom unit in October 2010. She said as soon as they moved into that one, the father took the three boys and made them sleep in the same bedroom as him whilst she slept in the other bedroom with the maid sleeping in the lounge room.

The father denied these allegations, too. He said that he planned to rent another place for himself and the boys but that the mother begged him to come back to her, and his colleagues advocated for him to take her back. He denied refusing to get a job, and said that he has always been a preacher and although that has not always provided him with an income, it is the only job he knows. He said that the mother chose to sleep by herself in her own bedroom and that she segregated herself from the children.

Family Violence

The mother said that when she and the father were living together in Country H he would be physically violent towards her on “nearly a daily basis”. She said he would “fly into a rage” and beat her with his hand, shoes, the leg of a table, the leg of a chair, a belt and his fists. She said that he would beat her all over her body and that he would never refrain from doing it in front of the boys.
She said that he sexually assaulted her on a weekly basis throughout their marriage. She said sometimes he would even do that in front of the children and she would insist to the boys that they go outside and play whilst that was happening. She said that he would rip her clothes off her, push her to the floor and have intercourse with her without her consent. She said that he would, when finished, “throw a blanket at [her] and spit on [her]”.
She said that he would excessively discipline the children and that he beat them also with the leg of a chair, shoes, and his fists. She said that he twisted their ears, pinched their cheeks hard and has lifted them off the ground by their ears. She said that the father refused permission to let her take one of the boys to the doctor at the hospital once in Country H when he was very sick.
The father denied all of these allegations of violence and physical and sexual abuse. Indeed, the father asserted that the mother attacked him with an iron bar once, hitting him on his forehead, leaving a scar. He did admit that he did not permit the mother to take one of the boys to the hospital as he said the mother “would deliberately make to out (sic) the children were sick in order to get money and sympathy from her friends and the authorities”. Interestingly, the father said that the mother “held the position of Woman Representative for the …, and was trusted by that organisation” and he asserted that the mother just pretended the child was sick so that their chances of getting resettlement in a third country were improved. The father said, as a preacher, he was embarrassed by her actions. I did not believe his denials.
The mother said that soon after they were living in G Town, one of the boys had homework from school that she wanted to help him with, when the father snatched it away from them and told her not to do it, saying that he would do it. The mother said that the father did not understand what had to be done and quickly got angry and “punched [the boy] in the face”. The mother said that the child had blood “pouring down from his nose”. She said she tried to help and the father tried to push her away. She said that she told the father she would start to yell if he did not leave her alone and the two younger boys also started to intervene, telling their father not to push the mother. She said that the father then walked away from her.
The mother said that later that night, the four year child became upset and she went to his bed to try to soothe him. She said the father came to the room and shouted at her, then slapped her hard across the face. She said that he went to hit her again and when she put her arms up and swung them to fend him off, he then said “right that’s what I was waiting for” and he then rang the police.
The mother said the police arrived and whilst at their home told the father that the mother was allowed to be near the children. She said the police gave them details of support services to contact before they left. She said that when she went to work and told the manager what the father had done to the oldest boy, the manager rang the Department of Child Safety and reported the matter. Child Safety officers came to the home later to interview them. The mother said they told her that the father had said the child’s nose had been hurt by accident. She said that she was advised to leave the home with the boys and that is what she did. They have been living separately ever since.
The father denied the mother’s version of those events. He said that he had been sitting with the boy at the table helping him with his homework when a pencil fell on the floor under the table. He said they both bent down to pick it up at the same time when his head “slightly hit on his nose, causing it to start to bleed”. He said he proceeded to wipe his nose and face with a tissue. He said at no point did he quarrel with the mother or any of the children.
The father said that later one of the boys began “screaming and crying” so “[the father] took him to [his] chest and prayed over him and rebuked the evil spirits according to the [religious] recommendation”. He said the mother “violently” entered the room where they were and yanked on the child’s leg and then hit the father on the face. He said he immediately called the police as he knew that “domestic violence is against the law in Australia”. The father said that the mother failed in her attempt to have him arrested. He said that he believed the mother had planned to end the relationship after arriving in Australia for the purpose of “receiving more money from Centrelink”.

Another serious part of the father’s case

In one of his trial affidavits the father said the following:
I am a genuine servant of [my religion] and one of his prominent [preachers]. [The mother] has always opposed me because she has never belonged to [my religion], but was as are many Africans initiated into witchcraft and devil-worship. In other words [the mother] was a follower of tribal beliefs. In Africa she was well-known amount (sic) the … refugees in [Country H] as someone who is in the business of destroying human lives and relationships and provoking chaos among families. In our culture her behaviour makes people believe that she is an evil sorceress. [The mother] said to me on many occasions that if I succeed in getting the children, they will die and it will be the fault of the lawyers and judges. [The mother] had broken apart many families in Africa, and left many people destitute, hopeless and desperate. The … community in Country H considered her to be cursed and full of lies and evil power. Her false claims and physical assaults against me, as well as her efforts to separate me from my children, are evidence of her dark intentions.
The father actually maintained that the mother, through the use of her witchcraft or sorcery, has deliberately made the children sick. He said that it is the mother who has caused one of the boys to be short-sighted and needing eye glasses. He blamed that on the mother intentionally using sorcery to cause it.
Not only did the father maintain this case in his affidavit evidence, but also through positive assertions to the family report writer when he saw her and also in Court during the trial.

The Family Report

The father is reported by the family report writer, Ms I, psychologist, as having told her that the mother “is good at distorting and wreaking havoc in families”. She said that he described the mother as “dangerous to humankind”. He is reported as having said that the mother “is trying to control the mind of Australia” and he asserted that she had a history of mental illness that he had, through prayer, brought under control.
The report writer observed some very interesting interaction between the father and the three boys when she saw them meet up for the first time in a long time for the purposes of the report.
She said that when the boys saw the father they ran to him and excitedly hugged him, but that the father then immediately commenced a prayer with them, during which he denounced witchcraft. She said that the father took the eyeglasses of the boy who was wearing them and commenced a prayer where he touched the child’s head and said “you are not blind, you will be healed”. She observed the boy to put the glasses back on about five minutes later.
The father was heard to say to the boys “the devil is a liar …”. The report writer said the father began checking the boys’ pants and ran his hands around each of their waists. He was heard to say “the Australian Government gives you money, it’s not from your mother, why is she buying such cheap things when the government gives her money”. He then led the boys in a prayer, in the presence of the report writer, requesting they all hold hands and for the boys to repeat the words after him. He said:
I get rid of bad thoughts in name of [God]. I acknowledge that [Mr Barrakat] is my father and did not wrong me, we are friends in the name of [God]. [God] is alive. I confess that [Mr Barrakat] is my dad. I acknowledge he is not our enemy he is our friend, he is our father. I have love towards my father. I don’t refuse my father. I don’t have bad thoughts against my father. Everything I said bad about my father please pardon me. I acknowledge that [Mr Barrakat] is my friend, my companion and friend of every day since childhood, he always has been. You also gave me a mother she is alive I love her bless my mother. Bless my dad because my dad is a [preacher]. Everything I said against my dad I refuse. I love my father. I cover myself with [the power of God], anything against I destroy. Today I confess that [God] is lord and saviour of my life. I’m a blessed child. I belong to God. I am happy whenever I am with my dad and I am not afraid to be with my father.
The report writer spoke with the boys separately. She reported the eldest boy (who was 10 years old at the time) telling her that his father “doesn’t like us to say hello to mum” and he is reported to have said that he remembered that from when they were living together. He said his father would say “don’t speak to her, go near her or touch her” and he said that if he disobeyed his father’s direction he would get into trouble. He also is reported to have said that the father used to hit him when they lived with the father. He is reported to have said that his father used a belt and hit him on the back with it and also hit him in the stomach with a heavy bottle that had oil in it. He is reported to have said that he had seen his father hit his mother on multiple occasions and that he had also seen his father “choke her and hurt her eyes”. He is reported to have said that he had also seen his father hit his brothers.
He is reported to have said that he wanted to continue living with his mother and to see his father for supervised visits. He is reported to have said “I want my family to be safe and to have a great life”.
The second child (who was 8 years old at the time) is reported to have said that his mother is “really good” and “never mean”. In contrast, he is said to have said of his father that he is “not nice even if there is nothing wrong” and that he was often “really angry” when they were living together. He is reported to have said “I was so afraid of him, he was scary”. He is also reported to have said his father “kicked me in the face” when the boy was disobedient and that his father had slapped him in the face. He is reported to have said that his father “hit my mum in the mouth” and “hit mum many times” and “said my mum is a demon”. He is reported to have said that he wants to live with his mother and only see his father for supervised visits.
The third child (who was 5 years old at the time) is reported to have said that his father can be “really nice” but also “really mean”. He is reported to have told the report writer that his father was violent towards his mother when they lived together. He is reported to have said that he wants to live with his mother and his brothers and that he does not want to see his father “as he has been so naughty”.
There was nothing in the family report or Ms I’s evidence at trial that suggested she had any concerns that the boys’ reporting to her was coached or the product of influence from their mother. I accept that the boys reported things they had actually seen and experienced.

The report of the psychiatrist

The two parents were each assessed by a psychiatrist. The doctor did not suggest that the mother had any psychiatric illness or any personality disorder. Indeed, he reported that from a personality perspective she appears to have been an extremely competent well-functioning person who has functioned extremely well in the face of the adversity in Africa. Indeed, he thought she presented as quite calm and relaxed, even in the presence of the father, such that the doctor said that it did not present to him as a “picture of one of being dominated and traumatised”.
As for the father, the doctor did not consider there was any evidence of psychosis or mental illness. When considering the father’s personality, the doctor did say the father presented as immature and childlike but the doctor was a little troubled by how much of that was culturally consistent and how much was personality based. The doctor did acknowledge that the father has relied very much on the “privileges that males have had in their roles in Africa that are not so established perhaps in Australia”.
The doctor, in his written report, ultimately asserted the opinion that he did not consider the father a risk to the boys’ well-being if they were to spend unsupervised time with him. He said he did not consider the father likely to try to undermine the mother with the boys.
However, as I was quite concerned about this aspect of the doctor’s evidence, having heard and read all the evidence that I did during the trial, I asked the doctor when he was giving his oral evidence, if he would consider and comment upon the likely effect on the boys of exposure to their father undermining their mother.
The doctor then expressed the opinion that undermining behaviour, if it occurred, would destabilise the boys and would have “quite a profound effect on them”. The doctor said the boys “would start to unravel and become even more polarised with one parent or the other”. He went on to express the view that it would probably “backfire” on the father and that it would be him that the boys would most likely turn away from if he actively worked to undermine the mother.

Evidence about conduct since separation

Each party again gave extremely conflicting evidence about some events that had occurred since separation. It was the evidence that I heard about these events, in addition to the evidence I heard from the father of his beliefs that the mother was a witch or sorceress, as well as the evidence from the family report writer of the boys’ corroborative reports of the father’s violence towards them and their mother, that most particularly persuaded me to the view that the mother was to be believed as the credible witness and that her evidence where it conflicted with the father’s (and as I have already observed, that was on a lot of matters) was to be preferred.
When considering the evidence I am about to discuss, it is significant to bear in mind that the mother was at all relevant times the beneficiary of protection orders that she had sought and obtained from the State courts, restraining the father from coming anywhere near her.
As I have observed, the mother lives in Region J with the boys now and the father lives in K Town. The mother gave evidence of having travelled with the boys to Suburb L in the south of Brisbane to go to a store that sells African products. She said that they went on the train and were walking from the railway station to the shop when they walked past the Suburb L Post Office. She said the father was inside the Post Office and saw them walking past. She said that he came out and invited the boys to go with him back into the Post Office. The mother said that she remained outside the Post Office waiting, too scared to intervene. She said that about 10 minutes later the boys came out of the shop and they continued on their way. She said that when they later arrived back at home she saw her eldest son was holding a new mobile telephone and she asked him where he had got it. She said he told her that when they were in the Post Office he had showed his father the phone that his mother had purchased him for his birthday and that his father had told him to throw it away and he would buy him a new one. She said that the boy said his father then went and bought him a new one and handed it to him and said “Don’t use what she gives you. Use what I give you”.
The mother also said that her son told her that the father said to him that he should ask his mother for money so that he could buy an Ipad. The mother said the boy quoted his father saying “it is your money, it is your right, keep annoying her until she gives it to you”. The mother said the boy related that he had told his father he receives pocket money of $20 per week in return for doing jobs around the house and his father told him that he did not need to work and that his mother should be just giving him money.
When cross-examined about the Post Office meeting at the trial, the father said that it was only the second child who had a mobile phone with him that day and that he had told his father it was not working. The father said the boy said “buy us a mobile phone, dad” and the father said he responded “ask your mother for the money”. Then he said he gave the boys a new mobile phone a couple of weeks, or even a month after that when he went to their home in Region J. He denied the mother’s version of the events.
The father was then asked about his visit to the mother’s home in Region J that he had referred to and how that came about. He said that the mother had called him up on the phone and told him that the boys were sick and asked him to come and see them. He said that she said to him “they need to see you”. He said he had received that call on the Friday and that he went to visit them at their Region J home on the Saturday, accompanied by a friend. He said that the mother invited him and his friend into the home on their arrival and he gave the oldest boy a mobile phone that day. He said that it was around 7:30 pm at night when he went and it was already dark. He said the mother was “very generous, she welcomed us”, but that the boys were not sick. By his evidence, he suggested that the mother lied about the boys being sick just to get him to visit her home.
When the mother gave her oral evidence at the trial, she said that she had not invited the father to come to her home but that one evening in January 2015 the boys had come to her and told her that the father and another man were there at the house. She said one of the boys had opened the door for them and let them in. She said that they stayed about 30 to 45 minutes talking to the boys before they left. She said she did not invite the father to come to the home; she did not let him in; she did not ask him to stay and she was not sure how he got her address but thinks that one of the boys might have given it to him when they had seen him at the Suburb L Post Office.
The father also had given evidence that he had seen the mother and the boys on another occasion at Suburb L. He said that he had received a phone call from a “respected Mama” in the African community who had told him that the mother had given her his telephone number so that she could call him and invite him to reconcile with the mother and come together to meet. He said he had been invited to the woman’s house to meet up with the mother and the boys and that he had gone as per the invitation and a meeting had happened there.
When the mother gave oral evidence about this event, she said that she used to attend at “Mama M’s” house for prayer meetings each alternate week. She said she would go to church one week and then to Ms M’s house each other week. She said that on one of the occasions in December 2014 that she went there, Ms M invited her to stay longer at her home to celebrate Christmas together. She said that without her prior knowledge, the father just arrived at Ms M’s house and came in. She said that she did not know if Ms M had invited him or not, but that she felt uncomfortable there with the father in the house at the same time. She said that she just remained quiet until it was time to leave to go home and that because of that experience she has never been back to Ms M’s house again.

I was not persuaded by the father that his evidence on these matters was truthful and the mother’s false. Given the mother’s feelings about the father, I do not accept that she would have given him her address in Region J and invited him to the home by falsely pretending the boys were sick. I do not accept that she would have asked Ms M to set up a reconciliation meeting with the father. I accept the mother’s evidence that she has never been back to Ms M’s home since the day that the father came there. I am quite satisfied, on the balance of probabilities, the mother was telling the truth about what happened on each of these occasions, including the time that she ran into the father at the Suburb L Post Office.
As I listened to the father’s evidence about these matters, I simply could not accept it as truthful. I do not accept that the mother invited him to her home. I do not accept that the mother asked Ms M to invite him to her home whilst the mother and the boys were there, for a reconciliation. I am satisfied the father was being completely dishonest when giving that evidence. That helped convince me that the father was not troubled, despite his assertions that he was “a man of God”, to give false evidence at any time during the proceedings.

The parents’ circumstances

At the time of the trial, the mother was living in a three bedroom home in Region J. Two of the boys shared a bedroom. The third had his own room. The mother was working part-time and she was also studying English on three mornings each week. She was in receipt of $1,236 per fortnight being $566 from her paid employment and $670 from Centrelink by way of benefits. She said she used all of her income on family expenses and had no surplus. She said she has no new partner and no motor car.
The mother receives no child support from the father. Since they separated she has never received any.
The father said at the second part of the trial that he was living in a unit in K Town after having lived in a share house in Suburb L at the time of the first few days of the trial in 2015. In his April 2015 affidavit, he said that he was studying for a Diploma of Community Services, a course that would take him one year. He said that he was in receipt of a Newstart Allowance of $520 per fortnight, supplemented by income he earned doing some casual work from time to time. The father said he had an old model Japanese motor car.
At the time of the second part of the trial, in January this year, the father had completed his course but had not found paid work. He said that he was still preaching here in Australia though. Indeed, he revealed in his evidence that he had travelled away from Queensland to Sydney for about a month on an preaching trip in late 2015. He said he had paid for his own flights to Sydney. As that evidence came out, the father even admitted that he had foregone scheduled visits with the three children at the children’s contact centre that had been in place whilst he went on that trip. He showed no remorse or regret for that decision. I am satisfied that he clearly put his preaching ahead of spending that time with the boys during that period and I am quite satisfied that the father would probably do the same thing again in the future if faced with the choice, despite his assertions that he wants to spend more time with his boys.

Allegations of inappropriate behaviour by the father with the boys

There was some evidence that there had been complaints of the father inappropriately touching the boys’ genitals at some time during the time that the family was intact. The father answered the complaints by conceding that he would sometimes “massage” his boys after he had bathed them. He said that when he would do this, their penises would “move”. He asserted that this was quite normal and was a sign that the boys were “strong men”. He denied that there was any intent on his part to gain sexual gratification from his actions. Although I doubted and did not accept much of the father’s evidence in this matter, I did not consider that he was being untruthful on this particular point about intent. Whilst touching the boys in this way cannot be regarded as appropriate, I did not get the impression that the father was abusing his boys to gain sexual gratification. In any event, I have determined that the boys will not spend time with the father that is not supervised, so there will be no opportunity for anything like this to happen in the future.

Parental Responsibility

I am not persuaded that it is in the best interests of these three boys for their parents to share parental responsibility for them. In any event, the statutory presumption contained in s 61DA(1) of the Family Law Act does not apply as I have found that the father did perpetrate family violence on the mother and the boys in the past (see s 61DA(2)). Having regard to the mandatory requirements imposed by s 65DAC upon parents who are given shared parental responsibility for their children, for consultation about decisions to be made about major long-term issues in their children’s lives and for genuine effort to be made to reach agreement, as well as the mandatory requirement for agreement, I am not persuaded that shared parental responsibility in this case is in the boys’ best interests.
I have seen no evidence in this case that causes me to consider that these two parents could reasonably discuss decisions about major long-term issues with the appropriate child focus and actually reach an appropriate agreement on the matter that had to be decided. I consider that the father’s personality and his feelings towards the mother, clearly expressed by him in his affidavit and oral evidence, would make it impossible for them to have a sensible conversation about the boys. It would, in my judgment, be totally unfair on the mother to subject her to further exposure to the father’s abuse of her by making an order that would mandate consultation with him each time an important decision about one of the boys had to be made.
Satisfied that the mother will put the boys’ best interests first when she is making decisions about major long-term issues in their lives, I consider that giving her sole parental responsibility for such decisions is appropriate in this case. I do not even consider it a suitable case in which to require the mother to consult with the father when she is about to make a decision about a major long-term issue in one of the boy’s lives before making the decision herself. I do not consider anything productive could come from such consultation. I will, however, provide by order for her to inform the father in writing of any decision she makes in respect any major long-term issue (as that term is defined in the Act) in relation to the boys or any of them. I consider it appropriate for the father to know of such decisions.
I will make an exception to the conferral of sole parental responsibility on the mother in respect only to the boys’ names. I do not consider that it is in the boys’ best interests to give the mother the legal capacity to change the boys’ names, at law, without the father’s agreement. The father and the mother gave the boys their names when they were born and those are their lawfully registered names, as I understand the evidence. They should remain their names at law, in my judgment, at least until each of them has reached adulthood and is able to legally change his own name if he decides he wants to.
There is, however, evidence before the Court that the boys like being called by what might be described as “Anglo-Australian” first names that each has taken on, instead of by their actual African names. The parenting orders I will make will also permit this practice to continue in the mother’s household by agreement between the mother and the children or any of them.

The boys’ time with their father

Ultimately, what has particularly persuaded me in favour of requiring any time the boys spend with their father to be supervised is my satisfaction that the father would not be able to restrain himself from denigrating and undermining the mother to the boys at any time they were to be in his unsupervised company. All of the evidence that I read and heard satisfied me that the father would actively work to undermine the mother where he could and, as confirmed by the psychiatrist who reported in the matter and gave evidence, that would not be in the best interests of the boys as it would likely have quite an adverse emotional impact upon them, even if that was to turn them completely against their father.
Though it is clear that “final” orders, even for supervised time, “carry inherently the prospect of future alteration”[1], indefinite or long-term, regular supervision of children’s time with one of their parents is not to be ordered lightly.[2] With that firmly in mind, in this case, I am quite satisfied that unless the father’s personality and attitude towards the boys’ mother is to change significantly in the future that any time the boys spend with him should not progress to being unsupervised. There is unlikely to be the necessary change without acceptance by the father of the need for change followed by regular attendance by him upon a psychologist, a psychiatrist or a specialist family therapist. I consider there is very little realistic prospect of that ever happening in this case. The father’s financial circumstances will make it difficult for him, although he may be able to access some Medicare assistance to pay for such therapy through a mental health plan obtained from his doctor. But it is the very entrenched nature of his attitude toward the mother and his belief that he is a servant of God who is doing God’s will, that causes me to have little optimism about any prospect for change on his part. Principally, for these reasons, particularly my acceptance of the unlikelihood of change without acceptance by the father of a need for change, my parenting orders will provide for indefinite supervision without including any mechanism for the orders to be revisited. Any future variation to the orders sought by the father, is best left, in my judgment, to the father pursuing his right to have the orders revisited upon satisfaction of what is generally known as the “rule in Rice v Asplund”.
[1] Gorman & Huffman and Independent Children’s Lawyer [2016] FamCAFC 174 per Murphy J at [291].
[2]See Moose & Moose (2008) FLC 93-375, H v K [2001] FamCA 687, Slater v Light (2013) 48 FamLR 573, and Gorman & Huffman and Independent Children’s Lawyer [2016] FamCAFC 174.
The Court was told that the Suburb F Children’s Contact Service, the place where the children were spending supervised time with the father at the time of the January conclusion of the trial this year, can facilitate supervised contact sessions on a once per month basis into the future. I am quite satisfied that one two hour visit on a Saturday each month is sufficient for the boys and their father to maintain the relationship that they have and to provide the boys with the ongoing opportunity to know their father through a safe environment where their good relationship with their mother is not undermined. I am satisfied that the supervised sessions should continue at that contact service for as long as that service can provide it. I will order that the parents and the ICL forthwith do all things necessary to put that in place.
Given that the mother receives no child support from the father, I consider it appropriate for the father to pay the costs charged by the contact service for the supervised sessions. However, given the evidence of the father’s failure to attend some scheduled sessions in the past in circumstances where he has simply not prioritised such session with his children over other things going on in his life, I will make provision for the father to have to notify the contact service of his intention to attend the scheduled session by 2:00 pm the day before, so that the mother does not have to ensure the boys attend the next day’s session if the service tells her that the father has contacted it and told them of his intention not to attend the next day or that he has not contacted the service at all.
I will make orders that require the mother to provide make up time to the father at her expense should she fail to present the children or any of them to the monthly supervised session with the father after she has been informed by the service of the father’s intention to attend.
The orders I will make will also provide for the unforeseen circumstance of the Suburb F Children’s Contact Service no longer being able to facilitate the monthly supervised service for any reason other than the father’s repeated failure to attend scheduled sessions. If the service cannot provide the supervision in the future then the parents shall agree upon another comparable service providing the supervised sessions and make arrangements to attend there. But if the Contact Service terminates the service because of the father’s repeated failure to attend scheduled visits, then the children’s time with their father pursuant to the orders I will make will be terminated.
I will also order that the father shall not speak with the children when he is with them at the Children’s Contact Service other than in the English language. The evidence is that he speaks French with them and that he wants to be able to speak his own native African language with them. However, the mother gave evidence that the father never spoke that language around her or the boys in any event and that the boys can really only speak English and French. Specifically, to save the costs that would come with ordering the father to pay for a French interpreter to attend supervised sessions with the boys, and acknowledging that the requirement for supervision of the father’s time with the boys is significantly thwarted if he is permitted to speak to them in another language other than English without an interpreter present to interpret to the supervisor what he and the boys are saying, I consider it appropriate to simply make an order restraining the father from speaking any language other than English with the boys at those sessions.
As the father has gone to the mother’s home since separation and gone into it uninvited by the mother, I consider it appropriate, particularly given the history of violence he perpetrated against her, to make an order restraining him from going within 200 metres of the mother’s home, place of work or place of religious worship. I also consider it appropriate to restrain him from attending at or knowingly going within 200 metres of any school attended by the boys.
The orders I will make will permit the boys, or any of them, to communicate as they or he desires, with the father by telephone or email. The mother will be required to facilitate such communication whenever any of the boys desires it. I consider that is the most appropriate way of providing for ongoing communication between the father and the boys without providing for a situation where the father can contact the boys whenever he wishes. Accordingly, the father will only be permitted to respond to electronic contact made with him by the boys or any one of them and will not be permitted to initiate such contact himself.
I will order that the father provides the mother with his residential and postal address, his contact telephone number and any email address that he has and that he keeps her informed of those as any changes happen. I will only order that the mother provide the father with a postal address at which he can send letters that will reach her and that she keep him advised of any changes to that as such changes happen. This way he has a postal address to which he can send the details of any changes to his own contact details.
My orders will maintain the restraint on the father taking the boys or any of them out of Australia and will keep them on the Federal Police’s Family Law Watchlist for another six years. I consider this necessary to protect the boys from being taken from this country back to Africa by the father without the mother’s permission. I consider the risk of that happening without these protective measures to be unacceptable in the circumstances of this case. However, I will lift restraint on the mother taking any of the boys out of the country. I am satisfied that if she travels with any of the boys out of Australia that she will return with them, as she considers this country their new home and that they are fortunate to be living here.
I will make the orders set out at the commencement of these written reasons.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 11 November 2016.

Associate:

Date: 11 November 2016