Burhan & Ebeid
[2021] FedCFamC2F 411
•19 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Burhan & Ebeid [2021] FedCFamC2F 411
File number(s): DGC 2406 of 2020 Judgment of: JUDGE BLAKE Date of judgment: 19 November 2021 Catchwords: FAMILY LAW - parenting – where Father found to severely denigrate Mother – where Father regularly refuses to return child to Mother – where Father regularly over holds child – where Father alleges the Family Consultant was bias – presumption of equal shared parental responsibility rebutted – Mother to have sole parental responsibility – child to spend time with Father three nights per fortnight. Legislation: Family Law Act 1975 ss 60CA, 60CC, 60CC(2), 60CC(3), 61C(1), 61DA, 61DA(1), 61DA(2), 61DA(4), 65DAA(1), 65DAA(1), 65DAA(2), 65DAA(3)
Evidence Act 1995 ss 140(1), 140(2)(a), 140(2)(b), 140(2A)
Cases cited: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Division: Division 2 Family Law Number of paragraphs: 72 Date of hearing: 27 October 2021 Place: Dandenong Counsel for the Applicant: Mr Howe Solicitor for the Applicant: Portelli and Co Counsel for the Respondent: Mr Leeton Solicitor for the Respondent: Autumn Legal Counsel for the Independent Children's Lawyer: Ms Elleray Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
DGC2406 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BURHAN
Applicant
AND: MS EBEID
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
19 November 2021
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The Mother shall have sole parental responsibility for the child, X born in 2011 (‘Child’)
3.The Mother must:
(a)notify the Father of any proposed decision relating to the long term care and welfare of the Child, including but not limited to:
(i)proposed decisions about which schools the child shall attend;
(ii)proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the child; and
(b)ensure that such notification is given not less than 28 days before a final decision is made, except in the case of an emergency; and
(c)take into consideration any views expressed by the Father in respect of such proposed decisions, which views must be expressed by the Father within 14 days of receiving the notice from the Mother.
4.The Child shall live with the Mother.
5.The Child shall spend time with the Father as follows:
(a)commencing 26 November 2021 and each alternate weekend thereafter, from Friday after school (or 3.30pm on a non-school day) until the commencement of school (or 9am on a non-school day) on Monday;
(b)subject to order 6, in the term 1 and term 3 school holidays, for two additional nights each respective school term holiday period, such time to continue immediately following the time the Child would ordinarily spend with the Father on the first or second weekend of the holidays, commencing from 9am on Monday and ending at 9am on Wednesday;
(c)subject to order 6, in the term 2 school holidays, for 4 additional nights, such time to continue immediately following the time the Child would ordinarily spend with the Father on the first or second weekend of the holidays, commencing from 9am Monday and ending 9am on Friday;
(d)subject to order 6, in the long summer holidays, for four additional nights, such time to continue immediately following the time the Child would ordinarily spend with the Father on the Father's first nominated weekend with the Child in January, commencing 9am on Monday and ending at 9am on Friday;
(e)on Father's Day from 10am to 6pm;
(f)on the Father's birthday and the Child's birthday, if the Child is not otherwise in the Father's care, from 3.30pm to 6.30pm;
(g)on Eidulfitr and Eiduladha in 2022 and each alternate year thereafter, from 12 noon on Eid Day until 4pm on the day after Eid;
(h)on Eidulfitr and Eiduladha in 2023 and each alternate year thereafter, from 4pm on Eid Eve until 12 noon on Eid Day; and
(i)at such other times as agreed between the parties in writing.
6.The Father may spend time with the Child in accordance with paragraphs 6(b)-(d) only if the Father takes the child away from his residence on holiday. In the event the Father wishes to take the child on holiday:
(a)interstate within Australia, then the Father shall notify the Mother no less than 14 days prior to the departure date of such proposed trip, and shall provide the Mother at that time particulars including the proposed itinerary, the address of where the Child will be staying and proposed period of such trip;
(b)out of the Commonwealth of Australia, then the Father shall notify the Mother no less than 60 days prior to the departure date of such proposed trip, and shall provide the Mother at that time:
(i)particulars including the proposed itinerary and proposed period of such trip;
(ii)a final itinerary including contact telephone numbers and full street addresses of where the Child will be staying;
(iii)copies of return airline tickets and details of flights once booked.
7.The Child's time with the Father be suspended as follows:
(a)on Mother's Day from 10am to 6pm;
(b)on the Mother's and the Child's birthday, if the child is not otherwise in the Mother's care, from 3.30pm to 6.30pm;
(c)on Eidulfitr and Eiduladha in 2022 and each alternate year thereafter, from 4pm on Eid Eve until 12 noon on Eid Day;
(d)on Eidulfitr and Eiduladha in 2023 and each alternate year thereafter, from 12 noon on Eid Day until 4pm on the day after Eid.
8.Changeover occur as agreed between the parties in writing and in default of agreement, at the Child's school on school days (including any after school hour changeovers) and at McDonalds at C Street, Suburb D on non-school days.
9.For the purposes of paragraphs 5, 6, 7 and 8 above:
(a)'school day' includes any day that the Child's school is open to students in person only;
(b)'non-school day' includes any day that the Child's school is closed to students in person or for online schooling, and includes pupil free days, public holidays and school holidays.
10.Each party shall have reasonable phone contact with the Child when he is in the care of the other parent and as otherwise requested by the Child with each parent doing all acts necessary to facilitate these calls on their respective mobile phones or on the Child's mobile phone and afford the Child appropriate privacy.
11.The parties shall do all acts and things necessary and provide all necessary authorities to the Child's treating medical and allied health professionals to provide the other party with any information they request about the Child's health and wellbeing, at the requesting party's expense.
12.The parties shall follow all reasonable recommendations and directions of any medical practitioner or allied health professional treating the Child from time to time, including the administration of prescribed medication and engaging with other support services.
13.The Mother shall authorise the Child's school to provide the Father with any information he requests of the Child's progress and development, at the Father's expense.
14.The parties are at liberty to provide a copy of these Orders to the Child's school and treating medical and allied health practitioners.
15.The parties ensure that at all times they provide to the other party their current contact telephone number and email address.
16.The parties shall inform each other of any serious illness, hospitalisation or injury sustained by the Child whilst in his or her care as soon as practicable and provide particulars of any treatment required or received by the Child together with the contact details for the treating doctor/s.
17.The parties shall be restrained from:
(a)denigrating the other parent or any member of the other parent's family in the presence or hearing of the Child or allowing any other person to do so;
(b)physically disciplining the Child;
(c)exposing the Child to family violence;
(d)discussing these proceedings or the contents of any documents relating to these proceedings in the presence or hearing of the Child or allowing any other person to do so.
18.Subject to any appeal, the Independent Children's Lawyer be discharged.
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 Burhan & Ebeid has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
This is an application for parenting orders brought by the Father. The proceedings concern arrangements for the child X born in 2011 (‘X’).
ISSUES IN DISPUTE
The principal issues in dispute between the parties are as follows:
(a)whether the Mother should be given sole parental responsibility for X;
(b)whether X should spend three nights per fortnight with his Father (as proposed by the Mother) or four nights per fortnight as proposed by the Father;
(c)whether X should spend no time with the Father during school and summer holidays (other than the usual alternative weekend time) as proposed by the Mother, or whether he should spend half his school and summer holidays with the Father as proposed by the Father.
SUMMARY OF FINDINGS
For the reasons that follow, I have decided that:
(a)The Mother should have sole parental responsibility for X;
(a)X should spend 3 nights per fortnight with the Father; and
(b)X should spend an extra four nights with the Father during each holiday period, that time to commence from the end of a weekend that the Father usually spends with X.
BACKGROUND
The Mother and the Father were both born overseas. The Father has been in Australia for approximately 34 years. The Mother came to Australia in or around 2011. The parties practice the Islamic faith.
The parties married in or around early 2010. X was born in 2011. The parties separated in 2013.
On 1 May 2015, Judge Phipps made final parenting orders by consent ('2015 Orders'). The 2015 Orders relevantly provided as follows. The parties were to share equal parental responsibility for X. X was to live with the Mother and spend time with his Father on each alternative Tuesday night and each alternative weekend from after school Friday until before school on Monday (a total of four nights per fortnight). X was to spend one week in each term holiday with his Father. X was also to spend time with each parent on a week about basis during the long summer holidays. Orders were also made for X to spend birthdays and special occasions with each parent.
It appears that between the making of the 2015 Orders, and the commencement of these proceedings, the Mother and the Father resided together for various periods. It is not necessary to determine the particular periods they resided together, or whether those periods might properly be described as a reconciliation. For various reasons, the arrangement did not last.
The Father ultimately commenced the present proceedings on 17 July 2020.
THE LAW
Parenting provisions in the Family Law Act 1975
The Family Law Act 1975 ('Act') sets out the matters that the Court must have regard to in making a parenting order. Section 60CA of the Act provides that in deciding whether to make a particular parenting order, a Court must regard the best interests of the child as the paramount consideration.
Section 61DA of the Act contains a presumption in parenting matters that parental responsibility is to be equally shared. Where parental responsibility is shared, section 65DAA(1) of the Act requires a Court to consider whether the children are able to spend equal time with each parent. Where parental responsibility is shared and the Court does not make an order for the children to spend equal time with each parent, the Court is required to consider whether the children can spend substantial and significant time with the non-resident parent.
Section 60CC of the Act then sets out those matters that the Court must have regard to in ascertaining what is in the children's best interests.
The primary considerations in relation to what is in the children's best interests are set out in section 60CC(2) of the Act. Subsection (2)(a) provides that a primary consideration is the benefit to the child of having a meaningful relationship with both of the child's parents. Subsection (2)(b) provides that a primary consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. By subsection (2A), the Court is to give greater weight to the consideration set out in subsection (2)(b).
Finally, section 60CC(3) sets out the additional considerations that a Court must have regard to in considering what is in the child's best interests.
Standard of proof
The Mother makes a number of serious allegations against the Father and in that context, it is appropriate to set out briefly the applicable standard of proof. Section 140 of the Evidence Act 1995 ('Evidence Act') deals with the standard of proof in civil matters. Subsection (1) provides, among other things, that the Court must find the case of a party proved, if it is satisfied that the case has been proved on the balance of probabilities. Further, subsection (2) sets out the matters that the Court may take into account in deciding whether it is so satisfied.
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, the High Court discussed how clear evidence is required to prove a serious allegation against a party. The High Court stated at pages 449 - 450:
The ordinary standard of proof required of a party who bares the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (citations omitted)
POSITION OF THE PARTIES
Principal orders sought by the parties
At the time that he commenced the present proceedings, the Father sought orders for a change of residence. He proposed that X live with him and spend time with the Mother each alternative weekend from Friday afternoon to Monday morning. He also proposed that X spend time with the Mother for half of each of the term holidays and summer holidays.
The position above was maintained by the Father until the week before trial when he filed an Amended Initiating Application. The orders he now seeks are that parental responsibility be shared, X live with the Mother, spend time with him for four nights per fortnight (Thursday through to Monday each alternative weekend) and, effectively, that the present arrangements for school term holidays and summer holidays be maintained. In effect, having commenced the proceedings, the Father now comes to court seeking orders that are substantially similar to the 2015 Orders.
The Mother initially sought orders that the Father's application be dismissed and that the 2015 Orders remain in full force and effect save for some identified variations. One of those variations was to remove the Father's time each alternative Tuesday night which would reduce his time under the 2015 Orders to three nights per fortnight.
The Mother also amended her Response before trial. She now seeks orders among other things, in addition to what I have noted above, that she be granted sole parental responsibility, and that the Father not spend any time with X during the term holidays or summer holidays.
In many ways, the matter unfolded before me with the Mother effectively as the applicant in the proceedings agitating for a change to the existing arrangements, and the Father effectively as the respondent seeking no substantive change to the existing arrangements.
The Evidence
The Father relied on his trial affidavit filed 19 October 2021, his outline of case document, his Amended Initiating Application and the Child Inclusive Conference Memorandum dated 4 November 2020. The Mother relied on her trial affidavit filed 22 October 2021, her outline of case document, and her Amended Response. Documents were tendered during the course of the trial. A Family Report dated 14 September 2021 was prepared by Ms E (‘Ms E’), Court Child Expert. Additionally, I was taken to a previous Family Report prepared by Mr F dated 2 July 2014, and to the initial affidavit filed by the Father in these proceedings. I have had regard to all of the above material.
The Father's case was built principally around the following contentions. That Ms E had noted in the Family Report that there was a well-established routine in place for X that is meeting his needs, and a significant disturbance to that routine could impact him significantly. Further, that X liked the current arrangements 'very much'. Finally, that in preparing her report, Ms E was biased toward the Father.
In his evidence, the Father recounted various matters. These included the fact that the Mother had asked him on occasion to spend additional time with X, that she had not informed him about potential surgery for X, that he had taken X on holidays (which the Mother had not done), that he has been involved in X's schooling and attended parent teacher interviews, that he had been involved in bringing up X and the Mother was not the primary carer, and that X told him he wished to live with the Father which had led to the Father commencing these proceedings. He also deposed that X has increasingly become withdrawn when at his home (which he puts down to the Mother no longer being supportive of his relationship with X) and that he has an excellent relationship with X.
The Mother recounted various matters in her evidence. She deposed at some lengths to the Father's constant denigration of her (including in front of X), the names she has been called by the Father, the Father's comments to X to the effect that his mother lives in a 'refuge' and that she will have to leave her house, the Father's continued over holding of X following time spent between the Father and X and the Father's refusal to agree to X attending counselling. She also expressed grave concerns for what X may learn from his father about how to treat women, or people that are different from him.
Each party was cross-examined. The Mother's evidence was cogent. She carefully considered her answers to the questions put before her and I formed the view that she was genuinely focused on X's best interests. She made appropriate concessions. She was reluctant to criticise the Father. Her evidence was credible.
The Father speaks English. His evidence was, however, difficult to understand at times. That is a matter that needs to be weighed when assessing the credibility of his evidence. Unfortunately however, even allowing for the difficulties in language, I formed the view that the Father was not a credible witness. His evidence, which I discuss further below, was on certain important issues, inconsistent. On other issues, he was clearly shown to be wrong. As I note later in these reasons, he offered bare denials to allegations that he denigrated the Mother in circumstances where X has effectively confirmed to Ms E, the evidence given by the Mother that she is subject to the Father's denigration. On that issue, the Father notably struggled to find something positive to say about the Mother when asked. He also displayed a marked lack of insight into parenting a child of X's age, suggesting among other things, that if X wished to stay with him past his allocated time, then that is something the Father would allow. The Father also suggested that X had changed his views about living with the Father after having been 'brainwashed'. In short, even allowing for any language or cultural barriers, the Father was an unimpressive witness who and displayed little insight.
I turn now to deal with some of the key factual matters in dispute.
KEY ISSUES IN DISPUTE
Alleged denigration of the Mother
The Mother made a number of allegations that the Father engaged in behaviours that were coercive and controlling, and that he denigrated her. By way of example, the Mother alleged that when she and the Father briefly lived together during 2018, he said to X words to the effect of 'don't listen to your mum', 'girls are dumb', 'girls are stupid', 'girls are brainless' and 'you can swear at your mum to teach her a lesson'. She also alleged that on or around 3 June 2020 when collecting X, the Father called her a 'bitch', 'prostitute', 'cunt' in front of X and that the Father also said to her 'the child should know everything about you then he will understand how bad a woman you are'. The Mother also alleged that the Father continues to tell X that his mother lives in a refuge, and that she is at risk of losing her house. The Father denied these allegations.
Ms E recorded at paragraph [47] in the Family Report that the Father stated that the Mother 'is of "low moral character" and that subsequently she is likely to instil poor morals and values in X if he continues to live with her'. Ms E confirmed in her evidence, and I accept, that the statements contained within the Family Report accurately reflect statements the Father made to her.
Ms E recorded at paragraph [53] of the Family Report X's views of what occurs at his Father's house. X reported that his Father tells him 'he would no longer live with his mother as she is a liar'. X also indicated to Ms E that 'he often misses his mother when he is with his father, which is often exacerbated by his father "randomly saying bad things" about his mum. X indicated that he would like his father to be more like his mother in that she is respectful and does not denigrate his father'. Further, Ms E recorded at paragraph [54] of the Family Report that 'X described feeling worried and upset that his father was unkind to his mother even in front of him'. Finally, Ms E recorded at paragraph [55] of the Family Report that 'X expressed that his father's house was also safe, except when he denigrated his mother, it made him feel "a little less safe"'.
When these matters are considered I have little difficulty in finding that the Father has denigrated the Mother to her face, and in front of X, in the manner alleged by the Mother. The Father has said the things that the Mother has alleged, including the specific matters to which I have referred to above. I find that the Father is in the habit of continually denigrating the Mother to X in what can only be described as the most obnoxious and demeaning way and that he has done so in recent times. I accept Ms E's observations and evidence that the extent of the denigration in his case is a significant and substantial issue and that it is emotionally impacting X. I am satisfied that the nature and level of denigration rises to the level that falls within the definition of ‘family violence’ in the Act, and that the Father has committed family violence against the Mother. I also consider it likely the Father will continue to denigrate the Mother in the future, given his low level of insight into his behaviours.
Whether the Father refuses to return, or regularly over holds, X
The Mother alleged that the Father has consistently refused to abide by Court Orders to return X to her. In her affidavit, the Mother gives examples of the Father over holding X either in breach of Court orders, or in breach of an agreement she had reached with the Father. The examples given by the Mother occurred at various times including on or around:
(a)18 November 2019;
(b)27 September 2019;
(c)19 June - 6 July 2020;
(d)20 July 2020;
(e)early August 2020;
(f)31 August 2020;
(g)22 January 2021;
(h)25 January 2021;
(i)8 March 2021;
(j)25 March 2021;
(k)14 May 2021;
(l)7 June 2021;
(m)5 July 2021;
(n)21 July 2021; and
(o)30 August 2021.
The Father was cross examined about some of the incidents referred to above, and whether he had ever withheld X. He answered that if he had over held, or been late to changeover, it was only for a few hours. He also indicated that he would be prepared to withhold X if that was what X wanted. He described this as being flexible. He denied that he had ever over held X for any period longer than a few hours and I took him to deny that he consistently over held X as alleged by the Mother.
There are two matters to note about the Father's evidence. First, the evidence that the Father gave under cross examination was inconsistent with other evidence he gave during cross examination. It is not clear to me how on the one hand he can claim that he has never withheld X for more than one to two hours, but at the same time maintain that he will keep X with him if that is what the child wants, because he is 'flexible'. Second, the evidence given by the Father during cross examination not only contradicted the evidence given by the Mother and his own evidence given during cross examination, but contradicted, and was inconsistent with, his earlier affidavit evidence filed in the proceeding. In her trial affidavit, the Mother gives an account of the Father over holding X for a period in excess of 14 days in the period 19 June to 6 July 2020. The Father, in the first affidavit he filed in this proceeding, confirmed that he held X for the period of time that the Mother claims. That earlier affidavit of the Father is inconsistent with the evidence that he gave under cross examination that he did not overhold, or only overheld X for 1 -2 hours, or that he never breached court orders.
When these matters are considered, the following emerges. First, I do not have any confidence that the Father was being truthful with the Court. In my view, the Father has maintained a version of events designed to bolster his case. His evidence cannot be believed. I prefer the evidence of the Mother over the evidence of the Father. Second as to the substance of the issue presently under consideration, in my view, the Father has regularly over held X for significant periods of time, including the periods referred to above. I do not believe his explanation that he has only over held for short periods of time or that he has only over held when requested to do so by X. In my view, the Father regularly and continually overholds X as alleged by the Mother. I find the continued pattern of over holding X is nothing more than another attempt by the Father (along with his denigration of the Mother) to control the Mother. In this sense, by his continued over holding of X, he has engaged in behaviour that controls the Mother.
The alleged bias of Ms E
The Father alleged that the Ms E was biased against him, and that such bias infected the Family Report. In particular, the Father took issue with paragraph [60] of the Family Report which relevantly provides as follows:
60.Ms Ebeid provided a detailed account of family violence allegations and it is noted that the information presented by Ms Ebeid is consistent with traditional gender roles and patriarchal value systems. Mr Burhan presented as domineering and dismissive of the significant allegations of family violence at times laughing when the allegations were discussed. It is noted that many of Ms Ebeid’s comments about Mr Burhan denigration of her and attempts to control her behaviour and undermine her parenting were consistent with attitudes and comments expressed by Mr Burhan. This pattern of controlling and coercive behaviour appears to have continued post separation through parenting arrangements of X, and subsequently appears to continue to impact on the co-parenting relationship. Mr Burhan’s derogatory views and comments about Ms Ebeid indicate that he may be using the current legislation and this assessment as a further opportunity to denigrate and undermine Ms Ebeid. This ongoing denigration a controlling behaviour is likely to impact on both parties ability to establish a safe and effective co-parenting relationship. It is impacting on X and his relationship with both parties, evidenced by his apparent distress and anxiety with regard to the conflict.
Counsel for the Father questioned Ms E about what she knew about Country G culture, and the existence of patriarchal value systems and traditional gender roles within that culture. Ms E gave some evidence about her knowledge of Country G culture and her experience working with families from South East Asia and Country G. While I accept Ms E's evidence in these respects, it is also fair to say that the Ms E was unable to elaborate in any meaningful way on the value systems and gender roles that may or may not exist within traditional Country G culture. Crucially though, that inability to elaborate does not mean that Ms E was biased against the Father in the manner alleged.
The unfortunate reality for the Father is that he made statements and conducted himself in such a way before the Family Consultant that provided a basis for the Family Consultant to reach the key conclusions that she did in paragraph [60] of the Family Report. For example, Ms E noted the Father had described the Mother as having 'low moral character'. She noted X's comments about the manner in which the Father denigrated the Mother. She noted the manner in which the Father tended to obstruct and control the interview (at [39] of the Family Report). She noted the Father's comment that X asked him to change the subject whenever the Father attempts to speak about the Mother (at [40] of the Family Report). She also noted the Father's comments about the Mother allegedly 'abusing the system and 'living outside of the family, which culturally, allegedly brings her shame' (at [47] of the Family Report). While the Father suggested he never said some of these things, or that Ms E has incorrectly quoted him, there is simply no evidence to support those assertions and I accept he made those statements to Ms E.
In my view, it is preferable that when giving evidence, witnesses avoid, to the extent that they can, generalised statements about 'traditional gender roles' or 'patriarchal value systems'. Use of that language has the potential to lead to, as it did in this case, allegations of bias, or of a lack of knowledge of particular gender roles or value systems within different cultures. It is far better to focus on the factual matters and make conclusions or draw observations from those facts.
In this case, it is apparent that the Father denigrated the Mother to Ms E. I have already made findings that the Father regularly denigrates the Mother. It is clear the Father made comments and expressed views both to Ms E and on other occasions (some of which I have noted above) which had a gendered quality about them, and which may be taken as emphasising the historical power and higher status that men have enjoyed over women. In my view, though somewhat inelegantly expressed, there was a factual basis for the views and comments expressed by the Ms E at paragraph [60] of the Family Report. Ms E was not biased against the Father - she simply made observations or drew conclusions based upon the material before her. She was entitled to do that. None of it amounts to any bias against the Father.
THE BEST INTERESTS OF X
X has a close relationship with his Mother. I am satisfied that the Mother has been X's primary carer throughout his life, and that X enjoys a positive home life with the Mother, which he described to Ms E. It is also clear that X described a positive relationship with his Father to Ms E, apart from when his Father denigrates his mother. X misses each parent when in the company of the other.
The need to protect X from, in particular, psychological harm from being exposed to, or subjected to family violence, is a factor that carries significant weight in this case. Nothing in the evidence suggests that X is exposed to psychological harm from family violence from his Mother. I have, however, made a finding that the Father denigrates the Mother to or in front of X, and that he overholds X, and that these behaviours constitute family violence. I am satisfied that the Father's conduct is having and is likely to have a significant effect on X's welfare when regard is had to the Family Report. Ms E recorded at paragraph [54] of the Family Report that X described 'feeling worried and upset that his father was unkind to his mother even in front of him'. She recorded at paragraph [55] that X 'expressed that his father's house was also safe, except when he denigrated his mother, which makes him feel a “little less safe”'. Under cross examination Ms E, referred to the emotional impacts on X if the Father continues to denigrate the Mother, and referred expressly to the difficulties X has sleeping, his crying, that he is struggling (in her view) with the current spend time arrangements, and his inability to access his Mother for support when in the company of his Father. Ms E noted that the continued denigration of the Mother by the Father was a substantial reason, and perhaps the principal reason, why X's time with the Father needed to be limited in the manner she proposed.
These are concerning matters. It is even more concerning that the Father does not appreciate the effect that his behaviours have upon X with Ms E recording at paragraph [63] that the Father 'appeared to lack any insight into how his behaviour is likely to impact X'. That observation of Ms E accords with my own observations of the Father in the witness box. Having observed him and considered closely his answers, I am satisfied that he does lack insight into how the denigration of the Mother in front of X, or the continual over holding of X leading to parental conflict, psychologically effects X. His suggestion that X is ‘brainwashed’ is indicative of this lack of insight.
Much emphasis was placed by the Father on the views X expressed to Ms E and in particular, Ms H (‘Ms H’), who prepared the section 11F memorandum dated 6 November 2020. In her report, Ms H recorded at paragraph [27] that 'In regards to his current care arrangements, X said that he likes it "very much" in the context of residing with his mother and having contact with his father every alternate weekend and alternate Wednesday nights'. In the Family Report, X told Ms E that he 'does not want to spend less time with his father'. The Father urged the Court to give significant weight to X's views. In this context, the Father also urged the Court to give weight to Ms E's observations at paragraph [64] of the Family Report where she stated that the Father's 'application to change X's residency appears without basis. X has lived in the primary care of [the Mother] since birth. There is a consistent and well-established routine in place for X. This arrangement appears to be meeting X's needs in a positive manner and a significant disturbance to that routine would likely impact X significantly' (emphasis added). These submissions by the Father invite the Court to assess the weight it should give to X's views, and also the likely effect of any changes in circumstances on X.
The following observations need to be made in relation to the Father's submissions. First, while not a significant point, it is pertinent to note that this is not a case in which the Father is urging the Court not to make any change to the existing arrangements. The Father comes to court proposing that the four nights X spends with him run as a block of time from Thursday night to Monday morning. That is a change from the present arrangements where X spends overnight time with his Father each week. Second, the observations of Ms H and Ms E were made in the context where the Father was seeking that X live primarily with him. The observations and records of Ms H and Ms E need to be understood in the context of competing applications for residency. Ms E emphasised as much during her cross examination. It is in that context that both experts made comments to the effect of it being desirable for there to be minimal change. It is in that context any comments from X as to the existing arrangements need to be understood, and that the consultant’s comments about the need to avoid significant disturbance to the present arrangements need to be understood.
Third, in so far as X's views are concerned, the following needs to be considered. X has only just turned 11 years of age. While Ms E expressed the view that X was expressive and engaging, it remains the case that he is very young. Further, any views X gave were given in the context where his Father was seeking a change of residence. That is no longer the position before me. All of these matters lead me to give some weight to X’s views, but not significant weight.
It is necessary to consider the effect of the proposals on X. The Father's proposal does not result in any significant change for X, and the Father was keen to emphasise that given the comments made by Ms E at paragraph [64] of the Family Report. The Mother’s proposal requires further consideration. Her proposal would, in my view, represent a degree of change for X when compared to the Father's proposal. The amount of overnight time X spends with his Father each fortnight would be reduced, albeit not by much - he would not see his father in the alternate week for overnight time. The changes to holiday time are however more significant. X's ability to spend extended periods of time with his Father on holiday would be non-existent under the Mother's proposed orders. Ms E, of course, gives a reason for this. It is that the risks to X posed by the conduct of his father are having a significant impact on him and quite possibly the ability of his primary carer to properly care for him.
The capacity of the parents to provide for the needs of X also need to be assessed. I am satisfied that the Mother is able to provide for the needs of X. I accept she has been his primary carer since birth, and has attended to his physical and emotional needs. In what can only be described as very difficult circumstances with the Father, she impressed me as someone who recognises that X should have a meaningful relationship with his Father, and she is supportive of that relationship.
Regrettably, I have real concerns about the capacity of the Father to adequately provide for X's needs. I am prepared to accept that he is able to cater for X's immediate physical needs. I am satisfied however, that he did withhold consent for X to attend counselling (though he told the Court he would be willing now to agree to counselling). I am also satisfied that the Father is unable to adequately cater for X's emotional or psychological needs. He is clearly oblivious to the detrimental effect that the constant denigration and parental conflict have on X. Further, the Father is oblivious to the fact that his continued over holding of X creates a situation that leads to conflict. His explanation that X may have been 'brainwashed' when he used the word 'servant' to Ms H displays the Father’s limited understanding of how children learn, grow, develop and acquire knowledge. The Father’s attitude that he is prepared to adjust unilaterally the time that X spends with him - which he describes as being 'flexible' - in reality portrays a person who is either unconcerned about setting appropriate boundaries, or is unconcerned about the parental conflict that will ensue from such a course of action, and is not alive to the effect that conflict has on X.
There are then the attitudes to the parenting of both parents. This is an acrimonious co-parenting relationship which is exacerbated very seriously by the Father's denigration of the Mother and his constant over holding of X. The denigration of the Mother by the Father is also serious in another respect. That is, the Father's constant denigration of the Mother as a woman. His references to her, which I have mentioned above, can only be described as sexist, insulting, belittling, and demeaning. X has been exposed to these views. The Mother is rightly concerned about the sort of man X may grow up to be if he continues to be exposed to his Father's view of women.
Insofar as family violence is concerned I have made findings earlier in these reasons and rely on them. Further, this is a matter in which there has been historic family violence. A final family violence order applied protecting the Mother and X from the Father. That order, however, expired in 2015.
Finally, it is necessary to consider whether any order made would be likely to lead to the institution of further proceedings. The Mother's proposal would see a reduction in the Father's time. That in turn may reduce the opportunities for parental conflict to occur which may in turn limit any further proceedings between these parties. On the other hand, the Mother's proposal that the Father not have any additional holiday time with X over and above his regular alternate weekend time may of itself create conflict which could lead to further proceedings. Insofar as the Father's proposal is concerned, I need only note that the existing orders (which are similar to what the Father seeks) have resulted in ongoing conflict between these parents and has resulted in the present application before the Court. On that basis, it seems clear that simply letting matters stand as they are will not reduce the prospect of further litigation.
Finally the Mother alleged that the Father owed her outstanding child support. The Father denied this. No documentation was produced in relation to this issue. I regard the evidence before me as being insufficient to support any finding that the Father is either up-to-date, or not up-to-date, in respect of his child support payments.
PARENTAL RESPONSIBILITY
The Mother seeks an order that she have sole parental responsibility for the X. The Father opposed the making of that order.
Section 61C(1) of the Act provides that each of the parents of a child who is not 18 years of age has parental responsibility for the child. Section 61DA(1) of the Act requires a Court, when making a parenting order in relation to a child, 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.
Section 61DA(2) of the Act provides that the presumption referred to in section 61DA(1) above does not apply if there are reasonable grounds to believe that a parent of a child, or a person who lives with a parent of the child, has engaged in abuse of the child or another child who at the time was a member of the parent's family, or has engaged in family violence. Section 61DA(4) further provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility.
The basis of the Father's opposition to an order for sole parental responsibility in favour of the Mother rests principally upon the following: the presumption in the Act of equal shared parental responsibility, his denials that he denigrates the Mother or has consistently over held X (for anything other than a few hours) and his submission that Ms E was biased against him. I have made findings adverse to the Father in respect of the last three of the aforementioned matters. The findings that I have made necessarily mean that I am now required to consider the question of parental responsibility.
The findings which I have made earlier support the Court making an order for sole parental responsibility to the Mother. The other evidence which substantially supports the making of an order for sole parental responsibility is contained within the Mother's affidavit and the Family Report. In the Family Report, the Ms E states the following matters:
(a)the Father 'unilaterally' making decisions to extend his time with X (at paragraph [58] of the Family Report);
(b)that the parties’ co-parenting relationship 'is characterised by significant distrust, apparent contempt of [the Mother] on behalf of the [Father], and fear of causing anger or reactions by [the Father] on behalf of [the Mother]' (at [59] of the Family Report);
(c)that the Mother's comments about the Father's attempts to control her and undermine her parenting were consistent with the attitudes and comments expressed by the Father (at [60] of the Family Report);
(d)that she holds 'concerns for the co-parental dynamic in the context of what appears to be both historic and current family violence and/or coercive controlling behaviours by the [Father]. As such, allowing joint parental custody may provide [the Father] with further opportunities to exert control over [the Mother] and X. It appears that [the Father] has historically acted in an obstructive manner with regard to parenting decisions which would demonstrate he is prioritising engaging in family violence and his needs over the needs of X. For example, his alleged unwillingness to consent to counselling for X historically. If the parents continue to share parental responsibility it may impact on [the Mother's] parenting capacity should each parental decision expose [sic] her and X to the potential of further family violence. There may be a significant burden placed on [the Mother] to maintain a difficult and potentially abusive co-parenting dynamic' at paragraph [65] of the Family Report.
I accept the evidence given by Ms E recounted above. Having seen the Father in the witness box and given close consideration to his evidence, I share the observations made by Ms E about the Father. His consistent behaviour has made life difficult for the Mother. It is hard to see how she could maintain a functioning co-parenting relationship with the Father given his continued denigration and undermining of her and his continued over holding of X. His lack of insight into his behaviours and his apparent inability to change, cause me to form the view that the co-parenting relationship in this matter cannot function effectively.
I expect that as X ages, either an increasing number of decisions, or alternatively, more significant decisions about his life, will need to be made by these parents jointly. Examples of this may include future decisions relating to his studies, his sporting interests, his social interactions and his health. That will require the Mother to interact more frequently with the Father who is likely to continue to perpetrate the behaviours to which I have referred. I am concerned that maintaining a situation of equal shared parental responsibility is very likely to place the Mother in a situation where her own health and well-being suffers because of her interactions with the Father. That is a cause for real concern given the Mother has been the primary carer of X for all of his life.
For all of the above reasons, I find that it is not in X's best interests for there to be equal shared parental responsibility. In this matter, I find that the presumption of equal shared parental responsibility has been rebutted.
While the presumption has been rebutted in this case, I accept that the Father loves X. He should have a chance, at least, to contribute to long term decisions and the welfare of X. That must be accomplished, however, in a way that does not provide further opportunities for the Father to denigrate or undermine the Mother and her decision-making capacity. Accordingly, I will make an order that the Mother notify the Father in writing where practicable 28 days in advance of implementing any decision affecting the long-term interests of X. The orders will provide that the Father is to respond to the Mother in writing and outline any views he has within 14 days of receiving notification from the Mother. The orders will also provide that the Mother is to consider any response received from the Father in coming to her decision. For the sake of clarity, the Mother is not required to adopt or follow any views proffered by the Father.
THE TIME X SHOULD SPEND WITH HIS FATHER
Section 65DAA(1) of the Act requires the Court to consider whether the children spending equal time with each of the parents would be in the best interests of the children and whether it would be reasonably practicable. Section 65DAA(2) provides that if the parents are to have equal shared parental responsibility, and the Court does not make an order for the children to spend equal time with each of the parents, the Court must consider whether it is in the children's best interests for them to spend substantial and significant time with each parent and whether it is reasonably practicable to do so. Strictly speaking, the provisions above do not have any application to the present matter given the finding I have made in relation to parental responsibility. The Applicant does, however, through the orders he proposes, seek substantial and significant time with the X.
The concept of 'substantial and significant time' is defined in section 65DAA(3). In considering whether to make an order for 'substantial and significant time' the Court is required to have regard to, among other things, whether such order would be in the best interests of X.
In light of the position taken by the parties, the findings I have made about the Father, and my assessment of the best interests considerations of X, the first issue for consideration is whether the Father's time with X should be reduced from four nights per fortnight to three nights per fortnight. On this issue, I am of the view that the Wednesday night that X spends with his Father in the alternate week should not occur. Neither party sought for it to continue. In my view, it simply provides a further occasion in which the Father can denigrate the Mother to X, and thereby cause anxiety and stress for X and the Mother, in a week where X would otherwise not be exposed to his Father's views.
There is then the issue of whether the Father should retain four nights per fortnight with X as a block of time from after school on Thursday to before school on Monday. This is a finely balanced issue. The Mother opposes it and proposes that the Father spend three nights with X every alternative weekend from Friday after school until before school on Monday.
The issue above needs to be considered alongside the arrangements proposed for school and summer holidays. The Father seeks orders that X spend half of the school term and long summer holidays with him. The Mother (at least in the Amended Response) opposes that course and supports the recommendations of Ms E that the Father not be given any additional time with X during school or summer holidays in addition to alternate weekend time.
The evidence before the Court that emerged during the trial and which I accept was that the Father has regularly taken X on holiday. I infer that that has provided X with an opportunity to see other places and broaden his experiences and knowledge. It seems that these are not experiences that X is able to obtain as frequently or as easily if he were to remain in his Mother's care for the entirety of all of the school holiday periods. Questioned about this during cross examination, the Mother accepted and indicated she would agree to X spending a few days extra with the Father during holiday periods if the Father had, among other things, a holiday planned and could demonstrate that X would be going away.
The Mother's concession during cross examination was an appropriate one for her to make. It is in X's interests that he have the opportunity to travel. I also consider it to be valuable for him to spend some additional time with his Father over holiday periods and away from the pressures of work and school. That will enable him to maintain and build upon his relationship with his Father. Accordingly, I will make orders to the effect that where the Father can demonstrate that he has arranged a holiday away from home for X, and he has given the Mother appropriate notice of the holiday and details of the holiday, that the Father be permitted to spend additional nights (in any one holiday period) with X in addition to the three nights he would ordinarily spend with X on every alternative weekend. Balancing the benefit to X of being able to take a trip with his Father against the risk to him from his Father’s behaviour, I will order that X spend an additional 4 nights with the Father in the term 2 holidays and long summer holidays, and an additional 2 nights in the term 1 and term 3 school term holidays.
That then leaves the question of whether the time the Father spends with X every alternative weekend should extend for four nights, or only three. Ms E in her Family Report in making recommendations for three nights per week and no additional holiday time for the Father, was cognizant of a range of matters but particularly the detrimental impact of the Father's behaviour toward the Mother on X. She was obviously concerned to limit X's exposure to those behaviours and that informed her recommendations. On one view, the issue is finely balanced. It might be said, generally, what difference does one additional night per fortnight make? I understand that sentiment. Equally though, there are risks to X being exposed to his Father's behaviours. In that context, it is also relevant to note that the additional time is not simply a question of one additional night per fortnight, but approximately 26 additional nights per year. In circumstances where the Father has continued to behave in the manner in which I have found, and where that behaviour shows no signs of abating, and where I have given him additional holiday time (not recommended by Ms E), I have ultimately come to the view that the Father's time should be limited to three nights per fortnight, Friday after school to Monday before school.
Little to no attention was given by the parties in their oral submissions to the other orders that were sought by either of them. Having considered the material before me in relation to these matters, I will make the following orders:
(a)the parties were in agreement in relation to the time that X should spend with the Father on Father's Day, the Father's Birthday, and X's birthday. I will make orders that reflect these matters as agreed between the parties;
(b)the parties put before the Court different proposals in relation to time that X spends with each parent on Eidulfitr and Eiduladha. In substance, the Mother proposed that time between the parents be split on these occasions each year and alternate year. The Father simply proposed that X be with one parent in year one, and the alternative parent in the intervening year. No oral submissions were made on this issue. I will make orders sought by the Mother. As I understand the position, both parties practice the Islamic faith and no reason was advanced as to why X should not spend time with both parents on these important occasions each year;
(c)the parties were in agreement that changeovers where possible should occur at the child's school and I will make an order to that effect. Where changeovers do not occur at school, the Father proposed changeover occur at each parent's respective residence. I decline to make that order given the conduct of the Father and the findings I have made. Changeover should occur in a public place, being McDonalds at C Street, Suburb D, as proposed by the Mother, given the Father's conduct toward the Mother;
(d)the parties were substantially in agreement that orders should be made for telephone time, access to medical and health records for the Father and the mutual provision by each of the parents to the other of telephone and email contact details. The parties were also in agreement that there should be injunctions relating to a range of matters including non-denigration, physical disciplining of the X, and exposure of the X to family violence. Clearly, there is a basis for making those orders given my findings. I will make orders to that effect.
I have stepped back to consider these orders in their entirety. I am satisfied given the material before me that the orders that I have made are in the best interests of X.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 19 November 2021
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