Belloumi & Belloumi
[2023] FedCFamC2F 1144
•4 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Belloumi & Belloumi [2023] FedCFamC2F 1144
File number(s): MLC 8168 of 2021 Judgment of: JUDGE J YOUNG Date of judgment: 4 September 2023 Catchwords: FAMILY LAW – PARENTING – children aged nine and six – where children have not spent significant time with the father in over 10 months – consideration of allegations of family violence – consideration of capacity of mother to facilitate relationship between children and father – consideration of risk to children remaining in mother’s care – permanent change of children’s residence to father’s care – father to have sole parental responsibility – moratorium on children’s time with mother followed by supervised time – graduating to unsupervised time. Legislation: Evidence Act 1995 (Cth) s 40
Family Law Act 1975 (Cth), Pt VII, ss 4AB, 60B, 60CA, 60CC, 61DA, 65D(1), 65DAA, 65DAB.
Cases cited: AMS v AIF; AIF v AMS (1999) FLC 92-852
Goode & Goode (2006) FLC 93-286
MRR & GR [2010] HCA 4
Stevenson & Hughes [1993] FamCA 14, (1993) FLC92-363
Division: Division 2 Family Law Number of paragraphs: 206 Date of last submission/s: 28 April 2023 Date of hearing: 19-21 April 2023 Place: Melbourne Counsel for the Applicant: Ms Harris Solicitor for the Applicant: Southern Legal Group Counsel for the Respondent: Mr Horsfall Solicitor for the Respondent: Elliott Stafford & Associates Counsel for the Independent Children's Lawyer: Mr Myles Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 8168 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BELLOUMI
Applicant
AND: MS BELLOUMI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
4 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The mother, her servants and agents, forthwith leave the Court and environment of the Federal Circuit and Family Court of Australia and the vicinity of 305 William Street, Melbourne, VIC 3000 and do not now enter further within 500 metres of 305 William Street, Melbourne, VIC 3000.
THE COURT DIRECTS THAT:
2.The father attend upon Court Child Services this day and collect X born in 2013 (“X”) and Y born in 2017 (“Y”), (collectively, “the children”).
THE COURT ORDERS FURTHER THAT:
3.All previous parenting Orders are discharged.
4.The father have sole parental responsibility for the children, subject to the following:
(a)the father will contact the mother in writing and provide her notification about any proposed long term issue that is to be determine and his proposed decision; and
(b)the father shall consult with the mother with regard to any such long term issue or decision including having regard for any suggestions she might make in writing with respect to the same; and
(c)the mother and father will make a genuine effort to come to a joint decision about any such issue; and
(d)if no agreement is reached between the parties by the date that is 14 days from the date on which the father first sent his proposal to the mother in accordance with 4(b) herein, then the father shall make the final decision and advise the mother in writing of the decision about any such issue/decision.
5.The father arrange for the psychologist referred to in Order 16 to engage with the children as soon as possible after these Orders are made.
6.The children live with the father.
7.Not later than six (6) weeks after coming into the father’s care per Order 6 the children spend time and communicate with the mother as follows:
(a)by video call each Sunday from 5.30pm until 6.00pm with the mother to initiate the call and the father to facilitate it; and
(b)such other times as may be agreed between the parties.
8.Six (6) weeks after the commencement of Order 7 the mother spend time as follows:
(a)each week for 2 hours as recommended by the supervision service, or in the absence of agreement each Sunday from 3.00pm until 5.00pm, for no less than 10 supervised visits;
(b)such time to supervised by an agreed supervision service, in the absence of agreement B Contact Service, the parties to do all things and sign all documents to engage such service;
(c)the father will meet the cost of such supervision, with the mother to fund a report at the end of the period specified in Order 8(a) and arrange for it to be provided to the father and/or his solicitors; and
(d)such other times as may be agreed between the parties.
9.At the conclusion of time pursuant to Order 8(a) the mother spend time as follows:
(a)each week for 4 hours as agreed between the parties in the absence of agreement each Sunday from 1.00pm until 5.00pm for 10 visits;
(b)changeovers to occur as agreed between the parties, in the absence of agreement at the father’s residence ; and
(c)such other times as may be agreed between the parties.
10.At the conclusion of time pursuant to Order 9(a) the mother spend time as follows:
(a)each week for 8 hours as agreed between the parties in the absence of agreement each Sunday from 9.00am until 5.00pm for 10 visits;
(b)changeovers to occur as agreed between the parties, in the absence of agreement at the father’s residence; and
(c)such other times as may be agreed between the parties.
11.At the conclusion of time pursuant to Order 10(a) the mother spend time as follows:
(a)each week from Saturday 4.00pm until Sunday 4.00pm for 10 visits;
(b)changeovers to occur as agreed between the parties, in the absence of agreement at the father’s residence; and
(c)such other times as may be agreed between the parties.
12.At the conclusion of time pursuant to Order 11(a) the mother spend time as follows:
(a)each alternate weekend from 4.00pm Friday until Sunday 4.00pm for 10 visits;
(b)changeovers to occur as agreed between the parties, in the absence of agreement at the father’s residence; and
(c)such other times as may be agreed between the parties.
13.At the conclusion of time pursuant to Order 12(a) the mother spend time as follows:
(a)each alternate weekend from conclusion of school Thursday (or 3.30pm on a non-school day) until commencement of school Monday (9.00am on a non-school day);
(b)changeovers that do not occur at the children’s school to occur as agreed between the parties, in the absence of agreement at the father’s residence; and
(c)such other times as may be agreed between the parties.
14.At the commencement of Order 12, the mother spend special days and holidays as follows:
(a)the children spend time with each party for half of the short and long summer school period by agreement, in the absence of agreement as follows;
(i)in the short-term holidays for one week, from the conclusion of school on the last day of term until 9:00am the following Saturday; and
(ii)for the long summer holidays commencing December 28th for a period not more than 7 nights and from 17th of January for a period not more than 7 nights.
(b)The children will spend Mother’s Day with the mother and Father’s Day with the father, from 5.00pm on the Saturday evening immediately prior to Mother’s/Father’s Day until 5.00pm on Mothers/Father’s day.
(c)Birthdays:
(i)On each of the children’s birthdays the children will spend time with the father:
A.from 2.00pm or conclusion of school on the day of the birthday until 10.00am or commencement of school the following day in 2024, then each alternate year; then
B.from the conclusion of school or 4.00pm the day before the birthday until 2.00pm or commencement of school on the child’s birthday in 2025, then each alternate year.
(ii)On each of the children’s birthdays the children will spend time with the mother:
A.from the conclusion of school or 4.00pm the day before the birthday until 2.00pm or commencement of school on the child’s birthday in 2024, then each alternate year; then
B.from 2.00pm or conclusion of school on the day of the birthday until 10.00am or commencement of school the following day in 2025, then each alternate year.
15.The mother is to attend all changeovers pursuant to these Orders by herself.
16.The father do all things necessary to forthwith obtain a paediatric assessment in relation to the children and a referral to a psychologist as agreed between the parties, in the absence of agreement the psychologist, to be Ms C.
17.The father provide the psychologist a copy of the Dr D Family Reports and a copy of these Orders.
18.Each parent keep the other informed of their residential address and contact details and in this regard each shall inform the other in writing of any changes to their residential address and or contact details within 24 hours of any changes being made to them
19.Each parent shall notify the other of any significant illness or injury requiring the attention of a healthcare professional occurring while the children are in their care, the nature of the illness or injury, and the details of any healthcare professional attending to the children or any of them.
20.Within 7 days of these Orders being made, the mother provide to the father the children’s birth certificates, passports and any other relevant documentation with the father to hold such documentation.
21.Both parties, their servants and/or agents be and are hereby restrained by injunction from taking or sending or attempting to take or send the children X born in 2013 and Y born in 2017 from the Commonwealth of Australia. This Order ceases to have effect 2 years after the date on which it is made.
22.The Marshal 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.
23.The Court requests that the Australian Federal Police place the names of the children on the Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the children from Australia in breach of these Orders. This Order ceases to have effect 2 years after the date on which it is made.
24.The parties be and are hereby restrained by injunction from:
(a)denigrating, insulting, abusing, intimidating, belittling or rebuking the other parent, or doing so in the children's presence or hearing or permitting any other person to do so;
(b)discussing these proceedings with the children, or in the children's presence or hearing;
(c)allowing the children access to any documents filed in these proceedings /other court proceedings or used as evidence for the purposes of these proceedings;
(d)requesting that the children pass messages on to the other parent or party;
25.The Order appointing the Independent Children’s Lawyer be discharged.
26.Pursuant to s 65DA(2) and s 62B, 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 the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE J YOUNG:
INTRODUCTION
These are parenting proceedings within the meaning of Part VII of the Family Law Act 1975 (Cth) (Act) with respect to X, born in 2013 and Y, born in 2017.
The children’s interests are separately represented by Mr Eric Myles, Independent Children’s Lawyer (ICL).
Pursuant to Orders made on 29 November 2022, the children live with the mother and are to spend time with the father from after school Friday to 6.00 pm on Sunday each alternate weekend and every Wednesday from after school until 7.00 pm.
The issues in dispute are:
(a)whether the children should live primarily with the mother or father, the father and the ICL seeking a change in the children’s primary residence;
(b)if a change of residence is made, how spend time with the mother is to occur, including whether there ought be a moratorium on the mother’s time with the children and subsequent supervision of time, prior to the introduction of unsupervised time;
(c)if a change of residence is made, what supports are required in the best interests of the children;
(d)what Orders should be made for parental responsibility, the mother and the ICL seeking shared responsibility and the father seeking sole parental responsibility.
Annexed to these reasons are the Orders sought in final written submissions by the applicant father (Annexure A), the respondent mother (Annexure B) and the ICL (Annexure C).
PRIMARY CONTENTIONS
Father’s primary contentions
The father’s primary contention is that mother is not supportive of the children having a relationship with him and seeks to remove him from the children’s lives. The father contends that the mother’s frustration of, and refusal to, encourage and facilitate spend time with the children, attitude towards a relationship with him, and her conduct to date is proving harmful to the children and presents a risk to the children’s long term welfare. The father contends that in these circumstances a permanent change of residence is required, with there being a temporary pause in spend time with the mother, followed by a period of supervision before progressing to a resumption of time with the mother.
Mother’s primary contentions
The mother’s primary contention is she and the children have been exposed to family violence in the form of physical, emotional and financial abuse from the father and that the father poses a risk of ongoing harm to the children of family violence. The mother contends that the children should continue to live with her and her position at the hearing was that the children ought determine what time, if any, they spend with the father. Post-hearing, the Orders sought by the mother included specified spend time with the father.
FACTS
The father is a 46 year old Australian professional.
The mother is 38 years old. She was born in Country E.
The parties met in Country E in 2010 and married in Country E in 2012.
As set out above, there are two children of the marriage X, born in 2013, aged nine and Y, born in 2017, aged six.
The mother communicates with the children largely in Language E. The father does not speak Language E.
The mother has an older child from her first marriage, Ms F, now aged 19 years. The mother changed Ms F’s surname to Belloumi shortly after her marriage to the father. Ms F was eight years old at the time of the marriage. Ms F has no relationship with his biological father.
The father’s work required him to work internationally. As a consequence, during the marriage between 2012-2018 the family lived in Country G, Australia, Country H, Country E and the United Kingdom (UK).
The father’s assignment to the UK was from early 2015 – mid-2019. In late 2018, whilst the father was still undertaking the assignment to the UK the mother and the children relocated to Australia. The father purchased a property in J Street, Suburb L (Suburb L Property) for the mother and children to live in after their return to Australia. Settlement took place on the Suburb L Property on or about late 2018. The mother selected the Suburb L Property and has lived there with the children since settlement.
The father returned to Melbourne between late 2018 and early 2019. The parties attended one session of marriage counselling during this time. The father spent a further period of time working in the UK before returning to Melbourne in mid-2019 at the conclusion of his assignment. The father was unable to secure work in Melbourne and commenced work in Country N in late 2019. The mother and the children remained in Melbourne.
In 2020 the father resigned from his position in Country N and after COVID-19 quarantine arrived in Melbourne and returned to the family home on in late 2020.
In November 2020 the mother told the father she wanted to separate.
The parties finally separated on 1 February 2021 following the father being removed from the family home after being served with an interim Intervention Order (IVO) applied for by Victoria Police for the protection of the mother, Ms F and the children.
Victoria Police withdrew the application for the IVO in late 2021.
Following removal from the family home, the father did not physically spend time with the children until 17 October 2021. Videocalls via Skype/FaceTime occurred with the children from 1 April 2021.
The mother has repartnered. Her new partner has a son who is of a similar age to the children.
THE LAW
The law is well known and does not require detailed repeating (see MRR & GR [2010] HCA 4 at [6] - [15] and Goode & Goode (2006) FLC 93-286 at [5] - [13]).
Section 60B of the Act details the objects of the Part VII of the Act which relate to children together with the principles underlying those objects.
Section 60CA requires the Court to regard the best interests of the child as the paramount consideration when deciding to make a particular parenting Order in relation to a child. The considerations necessary to be taken into account in determining what is in a child's best interests are listed in s 60CC.
Section 65D(1) provides that the Court may make such parenting Orders as it thinks proper, subject to the provisions of ss 61DA and 65DAB, the latter not relevant to the circumstances of this case.
Section 61DA(1) requires the Court to 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. The presumption does not apply in the particular circumstances as outlined in subsections (2) and (4).
The making of an Order for equal shared parental responsibility requires the Court to follow the pathway in s 65DAA of the Act and consider whether the making of an Order for equal time is in the best interests of a child and reasonably practicable and if not, consider whether an Order for substantial and significant time is in the best interests of a child and reasonably practicable.
PRELIMINARY OBSERVATIONS
This matter involves factual disputes on matters of relevance such that it is necessary to make some assessment of credit to enable findings to be made with respect to the considerations that will inform what Orders to make in the best interests of the children.
The father generally presented as a credible witness. He answered questions put to him directly and without evasion and made concessions where warranted. His demeanour was appropriate throughout cross examination and his evidence remained consistent. He demonstrated sound insight into the children and the impact on them of the Orders he seeks. He demonstrated respect for the relationship between the mother and the children and its importance. He did not denigrate the mother, his evidence being that the mother’s relationship with the children was close.
The mother gave evidence and was cross examined in English, which is not her first language. However, the mother demonstrated a sound understanding of, and ability to communicate in, English. She asked for questions to be rephrased when she did not understand them. Under cross examination, the mother was often unresponsive, evasive and combative. Her evidence was at times inconsistent and on more than one occasion she changed her responses shortly after having given her evidence to the Court. On more than one occasion, when pressed on an inconsistency in her evidence, the mother sought to explain this by reference to English not being her first language. Having observed the mother give evidence over the course of two days, the Court does not accept that any inconsistencies in the mother’s evidence arose from a lack of English language ability.
The mother’s view of the father was almost wholly negative. When asked what positive things she could say about the father she said “sometimes he can try to be cheerful”. Although the mother made assertions to the contrary, she conceded under cross examination that there was no benefit to the children in them maintaining a relationship with the father. The mother’s evidence as to the “abuse” she says she was exposed to by the father was particularly problematic. I address this further below. Generally, the mother was an unimpressive witness.
I have carefully considered the evidence over the course of the trial, together with the submissions made. I do not propose to respond to each submission made, nor refer to every piece of evidence. However, I have carefully considered all of the evidence before the Court and all of the submissions in determining what Orders will meet the best interests of X and Y.
FAMILY VIOLENCE
Family violence is defined in s 4AB(1) of the Act as follows:
For the purposes of this act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Section 4AB(2) sets out examples of behaviour that may constitute family violence, including an assault, repeated derogatory taunts, unreasonably denying the family member the financial autonomy that he or she would otherwise have had, and unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support.
Pursuant to s 4AB(3) a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
The mother’s evidence is that from the beginning of the marriage she experienced family violence. Her evidence is that the father “is a very angry person who is easily triggered in the family setting”.
The mother’s evidence is that she and the children experienced physical, emotional and financial abuse from the father. Her evidence is that the children have been impacted by the exposure to family violence and she asserts that the relationship between the children and the father has been damaged beyond repair.
Her evidence is that the father was abusive towards her and engaged in abusive behaviour throughout the relationship. Under cross examination the mother said that the abuse comprised mistreating her and domestic violence. She said that the father “screamed” at her and abused her on multiple occasions throughout the marriage. Her evidence in cross-examination was that the most significant incidents of abuse were included in her affidavit.
Alleged physical and psychological abuse
In her affidavit, the mother alleges the following incidents of family violence occurred in the period between 2012 - 2014:
·in 2012 the mother had a miscarriage. She says the father took her home from hospital and immediately returned to work. She says the father did not support her;
·in 2012 in Country G the father would not pay for Ms F to attend an international school and told the mother that the public schools did not have a place for him. As a consequence, Ms F did not attend school for 4 months;
·she did not have a doctor in Country G for her first pregnancy in 2012;
·the father was using his salary to service mortgages on properties he owned in Melbourne and the family lived off the allowances paid to the father by his employer. The mother had to beg the father for money at this time;
·the father would shout loudly at her and pull her hands away from her face when she covered her face to hide her distress;
·the father often punched holes in the walls very close to the mother’s face and on two or three occasions the father became so enraged he tore the T-shirt he was wearing apart;
·the mother would run from the father into the bathroom, the father would chase her, break through the door, shout at her and aggressively move her hands from her face (2014 Incident);
·the father did not support the mother after X’s delivery by caesarean section;
·in early 2014 the father was screaming at the mother. To get away from the father the mother went to the park, the father followed her and continuing to scream abuse at her saying “you will be done”;
·at an event in Country H, after the mother said she would like money of her own, the father become “enraged” and left the mother and children to walk for two hours (Country H Incident). The mother’s evidence is that as a result of the Country H Incident the mother and the children moved to Country E for two months.
I interpose to note that a number of these matters, even if established, including the mother’s allegations of absence of support, absence of a doctor and the allegation regarding Ms F not attending school, do not constitute family violence as defined by the Act.
The mother’s further affidavit evidence is that after Y was born in 2017, the father again became abusive towards her. Her evidence is that:
·the father would scream so loudly at her that the children would cry;
·the father continued to be abusive towards the mother, always in front of the children;
·by mid-2018 she could no longer live the life she was experiencing and she and the children travelled to Country E for two months;
·the father “hurt” X saying it was corporal punishment (Corporal Punishment Allegation)
·the father was “aggressive” upon his return to Australia in late 2020, saying “this is my house”, and “these are my children”;
·between late 2020 and early 2021 the father’s abuse escalated;
·the father tried to forcibly remove Y from the mother’s arms;
·the father would bang on Ms F’s bedroom door, shouting at him and demanding he come out of his room;
·an incident which occurred in January 2021 (January 2021 Incident), which is addressed below; and
·in July 2022 on an unsuccessful, non-supervised changeover the father slapped X’s foot “very hard” (Slapping Incident).
In support of her assertions of family violence the mother exhibited a text exchange with a woman called “Ms O”, whom she says was a friend of the father’s family. These texts are undated and in her affidavit the mother does not depose to when, even approximately, they occurred. Further, she does not depose to when the events referred to in the texts are alleged to have occurred. Under cross examination the mother said she disclosed what was “going on in her family” to Ms O in September 2014 and that Ms O informed her that it was family violence. The father denies that the events articulated in the texts occurred, including most specifically the 2014 Incident. As these texts are undated, and Ms O did not file an affidavit nor was she called as a witness, I place little weight on this evidence.
The mother’s evidence is that she suffers trauma as a result of the family violence she has experienced. The mother relies upon a letter from M Centre written in support of the mother’s IVO application in November 2021 (M Centre Letter). The M Centre Letter does not provide a diagnosis of trauma and relies upon the mother’s assertions of family violence, which are said to comprise psychological and emotional abuse, verbal and physical abuse, and financial control. The signatory to the letter identifies herself as a “clinician” but provides no qualifications or details of her profession. Accordingly, there is no probative evidence before the Court that the mother experiences trauma from the alleged family violence or has been treated for such trauma.
Under cross examination the mother was evasive and unresponsive as to the alleged family violence suffered by her and the children. She could not particularise her allegations with any specificity. She could not articulate the incidents of “abuse” and violence said to have occurred, instead referring the Court back to the matters set out in her affidavit. She could not particularise the verbal abuse alleged or the words allegedly used when the father is said to have screamed at her. Her evidence as to these matters was entirely unpersuasive. The mother’s attitude to the father is almost wholly negative. As a consequence, I consider this led to the mother’s evidence as to the father’s alleged conduct being significantly exaggerated and unrelated events being conflated. For example, the mother’s affidavit evidence is that as a result of the Country H Incident the mother and the children moved to Country E for two months and that by mid-2018 she could no longer live the life she was experiencing and she and the children travelled to Country E for two months. However, under cross examination the mother conceded that it had been planned that she and the children would leave Country H at that time and go to Country E to await visas for travel to the UK, that she and the children travelled to Country E to spend time with her family each summer holiday, and that the father paid for the air fares for the mother, the children and Ms F to do so.
Further, the mother’s evidence as to the alleged family violence was often inconsistent. For example:
·in relation to time off after the miscarriage, (noting however that this does not constitute family violence as defined in the Act) the mother’s affidavit evidence is that the father took her home from hospital and immediately returned to work. However, under cross examination the mother said that the father took one day off (noting the father denies this and says he took three days off work, being the maximum period available to him);
·the mother’s evidence as to the Slapping Incident was inconsistent and changed during cross examination and I reject it;
·at paragraph [19] of her affidavit the mother says that she and the children were subjected to “constant abuse” while the family were living in the UK, however under cross examination she said the abuse happened “every now and again”.
Of the incidents of family violence asserted by the mother, only the following were put to the father in cross examination:
·the Corporal Punishment Incident;
·the 2014 Incident;
·the incident in January 2020;
The father denies those incidents as alleged by the mother.
January 2021 incident
It is uncontested that in January 2021 there was an altercation between the mother and the father.
Mother’s evidence
The mother’s evidence as to the January Incident is that the father came into the upstairs bedroom while she was putting the children to bed and accused her of hiding the television remote control. She says that the father came back into the bedroom and told her she was a liar and he had found the remote control in her bag. She says X became upset and she had to soothe him. She says that she then went downstairs and asked the father why he had upset X. They began arguing. The mother took the father’s phone from the couch and the father became very angry. The father stood up and pinned the mother against the television unit. He held the mother’s arms behind her back and pushed her towards the shelves, resulting in her being bruised. The mother freed herself. She says the father had been drinking and the mother told the father that she was going to remove all the beer from the house. She removed the beer from the fridge and took the bottles into the backyard. The father approached her, kneeled and asked her to break a beer bottle over his head and to stab him with a knife. The father started to film the mother. The mother tried to take the father’s phone from him and this resulted in a physical altercation.
Under cross examination the mother’s evidence was that she took the beer from the fridge and “placed” it on the chair outside. Her evidence was that she was frightened of the father. When pressed on the specific detail of the January Incident under cross examination, the mother was evasive. She denied under cross examination that she was angry; rather she said she was distressed. Her further evidence was that during the Incident she was not physically hurting the father as there was no distress on his face. Further, she refused to concede that she was wrestling or tackling the father; saying that she was trying to get the father’s phone. She refused to concede that she had not told the father that she was going to remove the beer from the fridge but instead simply started doing so.
Father’s evidence
The father’s evidence as to the January Incident is that the mother accused him of looking through her handbag and that during the argument that followed the mother started taking beer out of the fridge and throwing it into the backyard. The father says the argument escalated and he began to record it on his phone. He was assaulted by the mother as she attempted to remove the phone from him. The mother then leapt on top of the father, put him in a headlock and attempted to snatch the phone. His evidence is that the mother’s hands were gouging into the his head and eyes. The mother continued to wrestle with the father. Ms F came over, tapped the father on the arm and asked the parties to stop. The father says he ended up on the floor with the mother pinning him down while she remained on top of him wrestling to get the phone. The father says he begged the mother to stop. The mother had her full weight on top of him when he felt and heard a cracking sound coming from his lower rib cage. His evidence is that the pain was significant. The father asked the mother repeatedly to let him go and pleaded with Ms F to get his mother to stop. His evidence is that Ms F spoke to the mother in Language E which calmed her down and she finally released the father. The father attended the emergency department of P Hospital and took two days off work to recover. The discharge summary from the father’s attendance at P Hospital discloses that the father had trauma to the right side of the chest and tenderness on his ribs. It further indicates there was no fracture, pneumothorax or haemothorax and the father was prescribed medication for his pain.
Under cross examination the father said that he had drunk one half of a bottle of beer, denied pinning the mother against the television unit and said he did not recall asking the mother to break a beer bottle over his head.
Video recording of January Incident
The father tendered a video recording made by him on his phone of the January Incident. That video recording is approximately 30 seconds long and it was uncontested that the recording does not comprise a recording of the entire Incident. However, that which is recorded demonstrates the mother and the father in the kitchen and commences with the mother gesticulating and shouting at the father “you touched my bag, you just looked through my bag”. Contrary to the mother’s evidence she appears angry. Ms F is standing in the doorway to the kitchen observing the mother and father. He does not intervene and does not appear distressed or concerned. The father does not appear to be obviously affected by alcohol. The mother then moves to the kitchen sink, gesticulating towards the father. She aggressively picks up bottles, of what is agreed were beer, from the kitchen sink and goes to a door in the kitchen which she opens, dropping some bottles on the kitchen floor along the way. It appears that the mother intends to put the bottles out of the door. The mother appears heightened, agitated and aggressive. The father tells the mother “that’s not good”, that what she is doing “is really wrong” and asks the mother to “please just put those back in the fridge”, “they belong in the fridge”. The father’s voice is calm and not raised. In response, the mother says forcefully in a raised voice “no they are not, because no one is drinking in this house - no one”. At this point the mother has returned to the sink area in the kitchen and is standing in front of the open refrigerator. The mother appears angry. The visual recording then becomes distorted and disoriented, consistent with the phone being moved uncontrollably and the mother wrestling with the father. The video demonstrates the mother on the father’s back with her left arm around his neck. The video demonstrates the mother continuing to wrestle with the father whilst on his back, during which the father repeatedly says “leave me alone” and “you are hurting me”. The father’s voice is distressed. The video remains distorted and disoriented. The mother remains on the father’s back and he appears to be wrestled to the ground. The mother is still on the father’s back and it appears that she is hitting him. The mother’s right hand is then seen coming over the father’s forehead and her fingers moving into the father’s eyes. The father says “my eyes”, at which point the recording ends.
I find that the video recording is inconsistent with the mother’s evidence as to the January Incident, most particularly in relation to the allegation that the father asked the mother to break a beer bottle over his head and stab him after she took the beer outside and her assertions that she told the father she was going to remove the beer from the fridge and “placed” the beer on the chair outside. I accept that the recording does not capture the entire Incident, however that which is captured demonstrates the mother behaving provocatively and aggressively and shouting at the father. The mother appears angry and in a heightened state. It depicts the mother physically assaulting the father in the presence of Ms F. The mother’s demeanour, actions and words are entirely inconsistent with her assertion that she is frightened of the father.
Interim intervention Order
The mother’s evidence is that following the January Incident she was frightened for the safety of the children and soon after sought assistance from the police.
In early 2021 Victoria Police applied for an IVO against the father on behalf of the mother, the children and Ms F. A family violence interim IVO was made in the father’s absence in early 2021. The father was required to vacate the Suburb L Property immediately.
The Application and Summons for an Intervention Order in support of the IVO made asserts:
·“a history of undisclosed family violence”;
·“resp controls all the finances within the family and only provides the AFM with a certain amount of money with no access to further money”;
·“Resp is very controlling over the AFM”;
·“Resp, ‘blames the AFM for not being close with their children’”;
·“Resp has a history of getting quite aggressive when not being able to handle other people’s emotions…becoming quite angry and emotional”;
·01-2021 verbal argument about the whereabouts of the TV remote ; “Resp becoming aggressive towards the AFM after finding the remote & the AFM attempted to take the Resp phone when the grabbed the AFM to get her to give the phone back , Resp grabbed AFM’s arms and pushed the AFM into the wall near the TV...held the AFM there for a minute or two until the AFM’s son asked the resp to let AFM go. A verbal argument occurred in front of the AFM’s eldest son. The AFM attempted to pour the Resp’s beer down the sink but was unable to open the bottles. The Resp started to record the AFM calling her pathetic and embarrassing. Afterwards the Resp falsely alleged that that the AFM was hitting the Resp. The Resp left the house and did not return for the night”;
·“AFM is living in fear of the Resp” “does not have money to leave the address”;
·“AFM is not scared the Resp will be physically violent towards her but is fearful of ramifications after speaking to police and the AFM is fearful of how the Resp will react to IVO and request the Resp be removed from the address”.
Victoria Police withdrew their application in late 2021. The matter was listed before the Magistrates’ Court of Victoria in mid-2023 as no new application has been made by the mother following Victoria Police withdrawing their application.
The information contained in the Application and Summons is inconsistent with the video evidence which is before the Court of the January Incident. In particular, the video recording does not support the mother’s version of events as recorded in the IVO Application and Summons that:
·the father called her pathetic and embarrassing after commencing to video the mother;
·she attempted to pour the beer down the sink but could not open the bottles;
·the father falsely alleged that the mother was hitting him; and
·the mother is living in fear of the father at that time.
I find that the Application and Summons do not support the mother’s contention that she has been subjected to family violence.
I accept that the relationship was one of high conflict, that the parties argued and that voices were at times raised by both parties. I also accept that often, if not mostly, allegations of family violence are not corroborated. However, in light of all of the above matters, on the evidence currently before the Court, I am unable to conclude according to the requisite civil standard (s 40 of the Evidence Act 1995 (Cth)) that the father has engaged in the conduct as asserted by the mother, namely that he was the perpetrator of physical and psychological abuse of her and the children, such that it would meet the definition of family violence under s 4AB of the Act. Indeed, the evidence before the Court supports a conclusion that the mother was the perpetrator of physical abuse of the father such that it would meet the definition of family violence under s 4AB of the Act.
Financial abuse
The mother’s evidence is that the father subjects her to financial abuse. In support of this, she says that the Suburb L Property is held in the father’s name solely, the father failed to provide her with her own money and the parties did not have a joint bank account. As set out above, the mother’s evidence is that whilst living in Country H in 2014 she had to “beg for money” from the father and that the father’s salary was directed to paying the mortgages on his Melbourne properties. Under cross examination she said that at that time the father gave her cash for groceries and she wasn’t allowed to spend money on anything other than groceries. Accordingly, it appears that the mother’s complaint is that she was required to provide for the family within a specified budget.
The father’s evidence is that he transferred $4,000.00 into the mother’s bank account each month and further funds as requested from time to time. In relation to the alleged events of 2014, the mother’s evidence was that this occurred when “things were different” and that these things had “changed over time”. Accordingly, even if, as contended for by the mother, the father did unreasonably withhold financial support needed to meet the reasonable living expenses of her and the children (which I do not consider can be established on the evidence currently before the Court) and thereby subjected her to family violence, on her own evidence that is no longer the case and related specifically to matters in 2014.
It is uncontested that the mother has remained in the Suburb L Property since separation in February 2021 and that the father has continued to pay the mortgage on the Suburb L Property, the outgoings, and child support of $2,168, totalling payments of approximately $6,000 per month. I do not consider this conduct to be conduct consistent with financial abuse and reject the submission that because the Suburb L Property is in the father’s name he has subjected the mother to financial abuse.
Under cross examination regarding the father’s alleged financial abuse, the mother was evasive and unresponsive and gave inconsistent evidence; most particularly in relation to matters to do with the Suburb L Property and its purchase and the purchase of her Motor Vehicle 1. Further, under cross examination the mother conceded that upon the family returning to Australia in 2013 they lived in a house owned by the father in Suburb Q, the father paid for the family’s accommodation, Ms F’s school fees and all other living expenses. She agreed that she, the children and Ms F regularly travelled to Country E for the summer school holidays and that the father paid for the air fares. In relation to the purchase of a property in Melbourne upon the family’s return from the UK, the mother’s evidence was that the parties first selected a property in Suburb R and that she assumed, because they bid on that property (unsuccessfully) at auction, the father could pay for it. She agreed that she chose the Suburb L Property and the father purchased it. She agreed that it was her expectation that the father would financially support her. She agreed that the father purchased a demonstration Motor Vehicle 1 in her name at the cost of $59,000.00, that she rejected less expensive vehicles and that she has retained that vehicle post separation. When asked whether in light of these matters and her own evidence that “things were different” in 2014 and that these things had “changed over time”, she maintained that the father had been financially abusive throughout the entirety of the parties’ relationship, the mother confirmed that was her evidence.
In light of all of the above matters, on the evidence currently before the Court, I am unable to conclude according to the requisite civil standard (s 40 of the Evidence Act 1995 (Cth)) that the father has engaged in the conduct as asserted by the mother, namely that he was the perpetrator of financial abuse of her and the children such that it would meet the definition of family violence under s 4AB of the Act. Further, even if to be the case that the father was the perpetrator of financial abuse of her and the children such that it would meet the definition of family violence under s 4AB of the Act, on the mother’s own evidence this occurred in 2014 and is no longer the case.
Conclusions as to family violence
It follows from the above, that I do not find the mother’s allegations of family violence by the father towards her and the children to be made out.
COMMUNICATION AND SPEND TIME WITH THE FATHER
Communication with the father pre-separation
As set out above, the mother lived with the children in Melbourne from October 2018 whilst the father was working in the UK and latterly, Country N.
The father’s evidence is that whilst working in Country N he maintained daily contact with the children through Skype, WhatsApp and telephone calls. The mother disputes this and says the father had irregular contact with the children in this period.
Communication and spend time with the father post-separation
Between early 2021, being that date on which the interim IVO was issued, and 17 October 2021, the father did not spend any face-to-face time with the children. Under cross examination the mother agreed that it was her decision that the children would not see the father during this period. However, by agreement, the father communicated with the children by Skype or telephone each Tuesday, Thursday and Sunday. The father initiated proceedings in this Court on 21 July 2021 and began spending face-to-face time with the children on 17 October 2021, pursuant to Court Orders made on 14 October 2021.
First short form report dated 8 October 2021
On 22 September 2021 the parties and the children attended Dr D for a child inclusive conference. Dr D also briefly interviewed Ms F. Under cross examination the mother agreed that she was very keen for Dr D to speak with Ms F and that Ms F does not like the father. Dr D provided a short form report dated 8 October 2021 (First Report).
The First Report states that contrary to the narrative the mother gave, the children evidenced a familiarity and bond with the father and although evidencing initial tentativeness, appeared to enjoy interacting with him. Dr D considered this consistent with the level of virtual contact the father had maintained with the children during periods of physical absence. Neither child evidenced indicators of fear or distress in the father’s presence and both chose to sit close to the father.
Dr D reports that the mother said that she wanted the children to have a relationship with the father, however, Dr D considered that information gleaned during the assessment raised concerns about the mother’s willingness and capacity to facilitate the children’s relationship with the father. Further, Dr D considered that the children’s narratives and behaviours, particularly those of X, were suggestive of children who had been exposed to adult issues in the mother’s care and to have been coached about what to say to Dr D. The mother’s affidavit evidence is that she has never exposed X to adult issues. She say that X is aware of the proceedings because he has spoken with the ICL. Under cross examination, the mother maintained that she had not exposed the children to adult issues or coached them. Her evidence was that X’s statements to Dr D that the difficulties with the father “all started in England” and involved “dad having an argument with mum” were his own recollections and that the views he expressed that the father “fights with my mum. He makes money and keeps it all to himself. He’s only given mum money for food and doesn’t let mum have the rest; it’s really unfair. He makes it and doesn’t give it to her. She is not really happy with what he’s doing.” were from his knowledge of the conflicts within the house. I reject that evidence. I consider it implausible. X was six years old when the parties lived in England and at the time of the interviews for the First Report the father had not lived in the Suburb L Property or seen the children for approximately eight months. Further, X’s assertions regarding the father only providing the mother with money for food closely mirror the mother’s narrative and assertions. Finally, the ICL wasn’t appointed until 15 October 2021. I find that the mother did coach the children, particularly X, and exposed them to adult issues. Further, I consider this latter matter is supported by Dr D’s report that, in the presence of the children, the mother queried the toy the father gave each child after the interview, expressing concern that this was an attempt to bribe the children and was unfair given the mother allegedly experienced financial abuse. Whilst initially denying that she said this in the presence of the children, the mother ultimately conceded under cross examination that this occurred saying “I guess so – it was some time ago” and agreed that it was a “bad thing” if that is what occurred.
Dr D recommended initially reintroducing spend time with the father through supervised visits for a short period, with a view to time progressing to short periods of day time on weekends whilst maintaining virtual contact during the week.
Following the First Report and Court Orders made on 14 October 2021, in addition to continuing the tri-weekly virtual contact, the children spent time with the father on Sundays for increasing periods and from 29 December 2021 each Wednesday.
Second short form report dated 21 December 2021
On 16 December 2021 the parties and the children attended upon Dr D for a further child inclusive conference. Dr D provided a further short form report on 21 December 2021 (Second Report).
The Second Report states that the relationship between the children and the father had significantly improved from the previous assessment. Dr D reports that there appeared to be a relaxed interaction and clear bond between the children and the father and the father’s interaction with the children was appropriate. Dr D notes that both parties reported some behavioural and/or emotional dysregulation of the children during the transition period and difficulty with changeover. The report provides that the mother continued to hold concerns about the children’s emotional wellbeing when with the father and the pace of progression, suggesting that the children would cope better with shorter periods of time with the father and that time was progressing too quickly. This is consistent with the parties’ evidence before the Court. The mother’s evidence is that spend time progressed well until Wednesday afternoons were introduced.
Consent Orders were made on 24 January 2022 which provided for, in summary, the children to spend time with the father each Wednesday afternoon and each Sunday from 9.00 am to 4.00 pm and then from 22 March 2022 progressing to each Wednesday afternoon and every second consecutive Saturday and Sunday from 9.00 am until 4.00 pm. It was agreed between the parties that as changeovers had been problematic they would be supervised.
Supervised changeovers – 30 January 2022-27 February 2022
Between 30 January 2022 and 27 February 2022 changeovers were supervised by S Contact Centre. S Contact Centre prepared a report dated 6 March 2022 from the supervisor’s notes (6 March Report). Ms S gave evidence at the hearing.
The 6 March Report covers 9 changeovers, of which only the 1st, 4th and 8th were successful.
Changeovers occurred at Suburb L McDonalds.
The father’s evidence is that the mother did not facilitate changeover or encourage the children to separate from her. Under cross examination the mother denied this, saying, amongst other things, that she “was trying”, that she “smiled” and that she tried to be reassuring and firm with the children. Her evidence was that she encouraged the children to go to the father. She denied her conduct indicated to the children that they ought not go with the father. She says she has always taken the children for changeover at the appointed time and that the children did not want to spend time with the father because he was mistreating them.
I accept that the mother has always taken the children for changeovers as ordered. However, I otherwise reject the mother’s evidence. For the following reasons I find that the mother was passive and did not support or facilitate changeover or encourage the children to separate from her to allow spend time with the father to occur. Firstly, the 6 March Report makes reference to the mother having a blank look on her face, looking serious, having a sad look on her face or alternatively, appearing distressed. The mother conceded under cross examination that her assertions as to her demeanour, for example, smiling and encouraging the children to leave with the father, were not reflected in the comments contained in the 6 March Report. Secondly, the 6 March Report contains repeated references to the mother’s passivity and lack of response when the children were reluctant to separate from her and her failure to verbally reassure the children or encourage the children to separate from her. Thirdly, the 6 March Report records, and Ms S’s evidence is, that the mother was advised that to facilitate a smooth handover she should promptly say goodbye, leave the children with the supervisor and depart McDonalds. It is clear from the 6 March Report, and I find, that the mother did not follow this advice. The mother agreed under cross examination that she had contacted S Contact Centre expressing concerns about this advice, that she did not like this advice and did not want Wednesday spend time to continue. The 6 March Report records variously that on multiple occasions the mother would not physically separate from the children at changeover, remained visible to the children from the glass frontage of McDonalds, continued to observe the children to their knowledge when the father was attempting to leave with children, would not leave promptly and remained sitting in her car in the carpark. Under cross examination she said that she was “listening to the children’s feelings” and “does not believe in hurting the children’s feelings”. Further, Ms S’s evidence, which I accept, was that the mother was informed that this created a risk to the children as they were running through a public car park to her car. Fourthly, under cross examination the mother conceded that her behaviour at changeover influenced the children. Fifthly, the mother spoke to the children in Language E during changeover; neither the father nor the supervisors speak Language E. Sixthly, although denied by the mother, the 6 March Report evidences that the mother did not reprimand or engage with the children when they misbehaved at changeover, for example throwing away toys or hitting or kicking the father and his car. I prefer the evidence of Ms S as to this, noting that when pressed on this point the mother’s evidence was that “maybe” she told the children not to hit the father in Language E. The mother also conceded that the children did as she told them when they were at home. This is inconsistent with the mother’s seeming inability to stop or discourage the children’s dysfunctional behaviour directed to the father at changeover. Finally, under cross examination the mother’s evidence was that she did not consider that there was any benefit to the children in having a relationship with the father.
Orders post first supervised changeovers
Consent Orders were made on 13 April 2022 for, amongst other things, the introduction of overnight weekend time with the father. The introduction of overnight time for Y was delayed and was of a lesser frequency than overnight time for X. The Orders also required referral of the children to a paediatrician and included a notation that the mother would use her best endeavours to speak English during changeovers. Orders requiring the changeovers to be supervised were discharged, with changeovers now to occur at school or childcare, or otherwise at Suburb L McDonalds or by agreement in writing.
On 12 July 2022 Orders were made requiring, amongst other things, the engagement of a psychologist for the children and the attendance by the family on Mr T for reportable family therapy.
Spend time post supervised changeovers
The father’s evidence is that the children’s behaviours at changeover were notably changing and becoming unpredictable both before and after supervision ceased. His evidence is that his relationship with the children significantly regressed in the period 13 April 2022 to 29 November 2022. Seventy per cent of handovers failed in this period. The last time he spent any significant time with both the children together was on 26 June 2022. All weekend changeovers have failed since that time.
His evidence is that X’s behaviour, in particular, became increasingly defiant, with X often remaining in the mother’s car, locking the car doors, smiling and raising his middle finger to the father. He says X’s behaviours escalated with inappropriate and obscene language. His evidence is that on a few occasions he remained with the children and the mother for part of the spend time as handover could not be facilitated. On the occasions when changeover was successful, time at changeover ranged from 5 to 30 minutes on a good day and up to 2 ½ hours on days which presented further challenges. The father’s evidence is that the mother would typically remain at the changeover location. His further evidence is that the mother would leave her car doors unlocked and if the children had come out of the mother’s car they made a habit of returning to her vehicle during the handover process and locking themselves in the car. The father says that the mother continued to communicate with the children largely in Language E. His evidence is that for the most part she did not encourage time and largely played a passive observational role, ranging from standing close by on her phone, going into McDonalds and telling the father to sort it out himself or encouraging the children when they behaved in dysfunctional ways such as hitting, spitting and swearing. The mother also arranged to meet Ms F at some changeovers. The father was not cross-examined as to any of these matters. I accept his unchallenged evidence about the changeovers.
18.That the Father and the Mother notify each other of any changes to their telephone numbers, email addresses or residential addresses within 48 hours of said change.
Watchlist
19.Until further order, both parties, their servants and/or agents be and are hereby restrained by injunction from taking or sending or attempting to take or send the children X born in 2013 and Y born in 2017 from the Commonwealth of Australia. This order ceases to have effect 2 years after the date on which it is made.
20.The Marshal 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.
21.The Court requests that the Australian Federal Police place the names of the children on the Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the children from Australia in breach of these orders. This order ceases to have effect 2 years after the date on which it is made.
Restraints
22.That the father and the mother, their agents and/or servants be and are hereby restrained from:
(a)Abusing, denigrating, or insulting the other parent to or in the presence of and/or within the hearing of the children or permitting anyone else to do so;
(b)Making any derogatory comments about the other parent and/or his or her relatives to or in the presence of and/or within the hearing of the children or permitting anyone else to do so;
(c)Discussing these proceedings or any associated proceedings to and/or within the hearing of the children other than to explain the live with arrangements contained herein or permitting anyone else to do so;
(d)Knowingly permitting the children to have access to and/or reading any document filed or prepared in relation to these proceedings and associated proceedings;
(e)Publishing anything on public social media about these proceedings, the other parent, or any matter in dispute between the parents;
(f)Passing on messages or seeking to provide information to each other through the children and
(g)Imposing any form of physical or inappropriate discipline upon the children.
23.The appointment of the Independent Children’s Lawyer be discharged upon the nomination of the family consultant as provided in order 15 hereof or within 30 days of the date of these orders whichever is the sooner to occur.
24.That all extant Applications be otherwise dismissed.
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