Daher & Saliba & Anor

[2014] FamCA 392

FAMILY COURT OF AUSTRALIA

DAHER & SALIBA AND ANOR [2014] FamCA 392

FAMILY LAW – CHILDREN – Where the mother is not willing to care for the children – Where both parents seek that the father to have care of the children – Where the children were removed from the father’s care by the Department of Family & Community Services following an incident of physical abuse of the children – Where the son has placed himself back in the father’s care – Where the two youngest children are in the care of the Department and currently in foster care placements – Family violence – Physical discipline amounting to abuse of the children – Protection from harm – Where the father’s parenting capacity is in issue – Whom should have parental responsibility for the children – Where the children should live – Best interests of the children

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA

G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT: Ms Daher

RESPONDENT:

INTERVENER:

Mr Saliba

Secretary of the Department of Family & Community Services

INDEPENDENT CHILDREN’S LAWYER: Ms Youssef

FILE NUMBER: PAC 274 of 2009

DATE DELIVERED: 12 June 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 27 & 31 March & 1, 2 & 4 April 2014

REPRESENTATION

THE APPLICANT: Self-represented Litigant

COUNSEL FOR THE RESPONDENT: Ms Conti-Mills

SOLICITOR FOR THE RESPONDENT: Thurlow Fisher Lawyers & Consultants

COUNSEL FOR THE INTERVENER: Mr Anderson

SOLICITOR FOR THE INTERVENER: Crown Solicitors Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Sloane

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Marsdens Law Group

Orders

1. All previous parenting Orders in relation to the children B born … 1997, R born … 2000 and M born … 2005 (together, “the children”) be discharged.

2. B live with the father.

3. The father have sole parental responsibility for B.

4. The Minister for Family and Community Services (“the Minister”) be vested with sole parental responsibility, in all aspects, for R and M until each child attains the age of eighteen (18) years.

5. R and M live as directed by the delegate of the Minister, the Secretary (formerly Director-General) of the Department of Family and Community Services (“the Secretary”), or his delegate.

6. R and M spend time with the mother as follows:

   (a)In the event that the Minister or her delegate, the Secretary or his delegate determines, in the children’s best interest, that such time should be supervised, twelve (12) times per year for two (2) hours on each occasion, at such times and places as agreed, or, failing agreement, at such times and places as nominated by the Secretary or his delegate, such time to be supervised by the Secretary or his delegate; or

   (b)In the event that the Minister or her delegate, the Secretary or his delegate determines, in the children’s best interest, that such time should be unsupervised, twelve (12) times per year for not less than five (5) hours on each occasion at such times and places as agreed.

7. R and M spend time with the father twelve (12) times per year for two (2) hours on each occasion, at such times and places as nominated by the Minister or her delegate, the Secretary or his delegate, such time to be supervised by the Secretary or his delegate.

8. For the purpose of the personal protection of the children, the mother and the father each be restrained by injunction pursuant to s 68B of the Family Law Act 1975 (Cth) from:

   (a)Abusing, insulting or denigrating the children, or any of the other parties, or a member of their families or households, to or in the presence of the children, and from permitting another person to do so;

   (b)Discussing any allegation made or evidence given in these proceedings to or in the presence of the children and from permitting another person to do so;

   (c)Exposing the children to any form of domestic violence including verbal violence or using abusive language to, within, or in the hearing of the children; and

   (d)Physically disciplining or striking the children.

9. A police officer may arrest the mother and/or the father pursuant to section 68C of the Family Law Act 1975 (Cth) without warrant if such police officer believes, on reasonable grounds, that the mother and/or the father has/have since the date of these Orders breached any of the injunctions contained in Order 8 above.

10. All outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 274 of 2009

Ms Daher

Applicant

And

Mr Saliba

Respondent

And

Secretary of the Department of Family & Community Services
Intervener

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. Ms Daher, the mother in these proceedings, was only 15 years old when her parents arranged for her to marry Mr Saliba, who is 12 years her senior. Over their 11 year marriage, the parents had four children before separating.

2. For some time each of the children has been in the care of the Department of Family & Community Services (“Community Services” or “the Department”).  B, the parties’ son aged 17, has placed himself back in the care of his father.  The eldest daughter is now an adult.

3. The mother refuses to take care of the younger children saying it is not possible under Islamic law as she has remarried.  It is both parents’ wishes that the two younger girls and their brother should live with the father.  The Department says that the father is not sufficiently capable as a parent to care for the children.

4. I must make orders concerning the children’s parenting arrangements that are in their best interests.

The Uncontested Facts

1. The father was born in 1966 in Lebanon and is now aged 48.  The mother was born in Australia in 1978, and is now aged 36.

2. The father migrated to Australia in November 1990. The mother and father met in about 1993 through extended family.  They were married by a religious celebrant in an Islamic ceremony in Sydney organised by the mother’s parents in October 1993 when the mother was 15 and the father was 27.

3. The eldest child, N, a girl, was born in 1996.  N turned 18 just prior to the hearing.

4. The parents registered their marriage as having occurred in March 1996, a few days after the mother turned 18.

5. The parties’ son, B, was born in 1997 and the two youngest girls, R and M, were born in 2000 and 2005 respectively.

6. The marriage was apparently a happy one for many years.  The mother was the primary caregiver for the children.

7. Although there is dispute as to why the marriage broke down and the circumstances of the early separation, it seems to be agreed that the parents separated in December 2007, but each continued to live in the family home with the children.  In March 2008, the father moved out of the family home, and the children remained living with their mother.

8. Although there is some dispute as to the level of contact, the children spent some time with their father after he left the family home following separation.

9. From about April 2008 reports were made to Community Services that the children were at risk of various forms of harm.  The concerns related to the care given by both parents and included the children being exposed to violence perpetrated by the father against the mother during the marriage and that the father was stalking the mother.

10. From about mid-2008 the father began making complaints to Community Services about the mother’s care of the children. The father said that the children’s school attendance was poor, that the mother failed to provide the children with food when attending school, that she failed to seek medical attention for the children, was not supervising them and was neglecting them.

11. In July 2008 an Apprehended Violence Order was made in the Local Court against the father for the protection of the mother for a 12 month period.  The father was prohibited by this order from assaulting, molesting, harassing, threatening or otherwise interfering with or intimidating or stalking the mother and the children, but was not prohibited from having contact with them.

12. Community Services continued to receive reports that the children were at risk of harm as a result of the care given and actions of both parents throughout 2008 and 2009.

13. Initially, the response of Community Services was to offer the mother the assistance of the “Brighter Futures” voluntary early intervention program, but the mother declined to follow through with this assistance.

14. Following separation, the parents attempted to reach an agreement in relation to the children, including attending a legal aid conference.  Draft consent orders were prepared and negotiations in relation to the parenting arrangements for the children continued throughout 2008, but were not resolved by Court orders.  The father says that at this time his contact with the children was limited as the mother generally refused to allow him to take the children.  The mother says that the father was unreliable in relation to spending time with the children.

15. In late 2008, or early 2009, it appears that the parents entered into an informal arrangement that the children should live with the father, though this did not eventuate and the children continued to live with their mother.  The father commenced Court proceedings for parenting orders in February 2009.

16. On 9 March 2009 the father removed B, R and M from their schools and took them home with him without the mother’s knowledge or consent.  On 10 March 2009 a religious official telephoned the father and asked him to collect N from a Suburb C mosque where her mother had left her.  From that date onwards, all the children lived with the father.

17. On 23 March 2009 a Federal Magistrate made Orders with the consent of the parents for the children to live with the father and spend time with their mother each week from 6.00 pm Friday to 7.00 pm Saturday.  The children lived with their father but did not see their mother for many months following these Orders.

18. In April 2009 the parents divorced.

19. In May 2009, the mother left Australia and travelled to Lebanon.

20. In June 2009, the father also travelled to Lebanon and remarried there in July 2009.  It is unclear who cared for the children during the father’s absence from Australia.

21. The mother did not appear at the final hearing of the parenting application on 1 October 2009 and Orders were made in her absence.  Those Orders provided for the children to live with their father and to spend time with their mother as agreed between the parents.  The Orders also provided that the father have sole parental responsibility for the children.

22. The mother married Mr A in Lebanon in November 2009 and returned to Australia soon after.  After the mother returned to Australia, she commenced the current Court proceedings in May 2010 for parenting orders to be made for the children to spend time with her.

23. In mid-2010 the father’s new wife came to live with him and the children in his two bedroom unit in Sydney.  This arrangement lasted five days before the father’s wife left.  The father’s wife reported to police that the father had sexually assaulted her over these five days and complaints in relation to that behaviour were also made to Community Services as it was said to have occurred in the home in which the children lived with their father.

24. On 11 August 2010 a Federal Magistrate made Orders for the children to spend time with their mother, supervised at a contact centre for several visits and then unsupervised.

25. On 17 November 2010 Orders were made for changeovers in respect of the mother’s unsupervised time with the children to occur at a contact centre.

26. In about December 2010 N made her own decision to live with her maternal grandparents.  N had asked her mother if she could live with her but the mother told N that this was not possible under Islamic law.

27. At around this time each of the parents and the maternal grandparents became aware that N, who was 15, had developed a personal relationship over the internet with Mr D, a 22-year-old cousin of the mother, who lived in Lebanon.

28. From January 2011 the children did not spend time with their mother as they were not taken by the father to the contact centre for changeover.

29. In February 2011 N returned to live with her father.  On 6 March 2011, when it appears that the father was having difficulties with N’s behaviour, the police attended and it was decided that N was to be taken to her mother’s home.  The mother refused to take N and she remained in the father’s home.[1]  The father says that, at this stage, he could not control N.  Community Services received reports of the father physically disciplining N but she remained in the father’s care.

    [1] Exhibit 7 – NSW Police Subpoena Sleeve 14 (event  44047079).

30. On 24 March 2011 the father was charged with assaulting N and causing injury to her, as well as assaulting B.  The father was placed on bail with a condition that he not approach any of the children unless an adult approved by Community Services was present, and a provisional Apprehended Violence Order was issued against him for the protection of N and B.

31. On 24 March 2011 Community Services became involved with the family.  Police records indicate that both elder children told police they did not feel safe staying with their father.  Community Services asked the mother whether she could care for N.  The mother declined, saying that it would be contrary to Islamic law and unfair on her new husband to expect him to be responsible for the children of her former marriage.  As there was no one available to care for them, the two elder children were taken into the care of Community Services that night and placed with a foster carer.  The younger two children were placed by the father with a cousin of his when he was arrested.

32. The following day a Community Services caseworker observed bruises and red marks on N.

33. On 28 March 2011, the mother placed the four children into the care of the maternal grandparents by way of an informal family agreement.

34. On 31 March 2011 Orders were made for the children to live with the mother and prohibiting the father from having any contact with any of the children pending the charges being determined.

35. At the end of April 2011 the maternal grandparents relinquished care of the children and they returned to the mother’s care.

36. In mid-June 2011 the hearing of the criminal charges against the father and the application for an apprehended violence order were listed in the Local Court.  The bench sheet completed by the Magistrate indicates that both alleged victims, who were the two elder children, were subpoenaed, but that neither were at Court and they were now in the mother’s care.  The prosecution did not seek a warrant (presumably for the arrest of the children for their failure to comply with the subpoena) or apply for an adjournment.  No evidence was offered and the charges were dismissed.  The application for an apprehended violence order was also withdrawn and dismissed.

37. On 23 June 2011 two officers of Community Services attended N’s high school at the request of the school counsellor and interviewed N.  During the interview, N told the Community Services officers that her mother and maternal grandparents wanted her to travel to Lebanon against her wishes in about two weeks to marry Mr D, the relative she had previously met online.

38. As a result of the ongoing issue related to the alleged arranged marriage of N in Lebanon, on 28 June 2011 Community Services placed N, at her request, with the mother of her best friend, Ms E.  Over the next three months while N remained with Ms E, she experienced significant psychological and emotional distress, which required her receiving psychological intervention.

39. Community Services intervened in the proceedings on 30 June 2011.

40. On 1 July 2011 N’s passport was surrendered to the Court and the Court made Orders that N be placed on the Airport Watch List and not be removed from Australia.

41. In September 2011 N made a suicide attempt, which the mental nurse consultant at the hospital said could be classified as “a cry for help and attention”.[2]  Community Services records indicate that the father visited N in hospital and was supportive.  At about this time, it appears that Community Services was giving consideration to returning the children to the care of the father as the mother continued to make it clear that she did not regard it as appropriate for her to care for the children due to her remarriage.

    [2] Exhibit FE-2 at page 109, annexed to affidavit of Ms H (Community Services Caseworker) affirmed 17 January 2014 and filed 20 January 2014.

42. On 24 November 2011 the mother advised the Court and the other parties (in the then Federal Magistrates Court) that she no longer sought orders for the children to live with her.  Interim Orders were made by consent placing all of the children under the sole parental responsibility of the Minister of the Department of Community Services.The Orders also provided for the children to spend a minimum of 12 occasions per year with the mother for five hours on each occasion (as agreed between the mother and the Minister) and for the children to spend time with the father once a fortnight for a two hour period on each occasion, supervised by the Minister or a delegate.

43. The mother agreed to continue to care for the children until the end of the following week when the maternal grandparents were due to return to Australia.  The father nominated two couples he wished to be assessed as potential carers for the children.

44. On 29 November 2011 the maternal grandparents advised Community Services that they were not prepared to care for the children.

45. On 16 December 2011 N moved from Ms E’s care to live with her cousins, Mr and Ms F.  Subsequently, N was unhappy with this placement and Community Services also assessed these carers as unsuitable for the long-term.

46. On 28 December 2011 B, R and M were placed by Community Services with one of the couples that the father had recommended, a Mr and Ms G.  Between February and July 2012, the carers raised concerns about B’s behaviour, including that he had hit his sisters.  B left these carers on 31 August 2012, as they indicated they were unable to cope with his behaviour.  B stayed with his mother for two weeks and then spent some time with his maternal grandparents.  The mother subsequently said that B could not return to her house and he also refused to go to a refuge.

47. In August 2012, a report of Dr J, the expert psychiatrist who had assessed the family, was released.[3]  The doctor recommended that the father needed parenting assistance and cultural assistance to try and adjust to caring for his children in an Australian context and that he may benefit from a practical family support, such as through Brighter Futures.  He also assessed that both parents had reactive depression and adjustment disorders and needed individual assistance.  The doctor also recommended that the father attend an anger management program and acknowledge that using physical coercion with his children is not acceptable.  The doctor’s overall recommendation was that, if these matters were attended to by the parents, the children could be gradually placed with their father over a six to 12 month period whilst he complied with parenting courses and perhaps supervision by Community Services.

    [3] Exhibit 1.

48. In late November 2012 B placed himself back with his father and continued to refuse to live in a refuge.  B has remained living with his father since this time.  On 28 November 2012 N made her own decision to return living with her father after learning that B was moving there too.

1. On 5 December 2012 the father informed a Community Services caseworker that he required financial assistance to care for N and B.

2. On 29 December 2012 N says her father “kicked her out”, calling the police and asking them to take her, because she had been spending time with her mother.[4]  N then lived with the family of a friend.

   [4] Affidavit of Ms H at [89].

3. On 7 January 2013 the carer of the younger children (Ms G) advised that she and her husband could no longer care for the younger children.  On 23 January 2013 R and M were moved to a new carer.  This carer is of Lebanese Muslim background and is described as being available for the medium-term but is not proposed as a long-term carer for the children.

4. On 7 February 2013 N moved to a semi-independent youth refuge and subsequently moved to independent housing in May 2013.

5. Up until November 2013 the two youngest girls had been spending time with their mother unsupervised on one Saturday per month from 10.00 am to 6.00 pm.  In November 2013 the children’s time with their mother was suspended as the mother had told the younger children that their removal was N’s fault and Community Services was concerned about the impact this may have on the children.

6. The two younger girls have spent supervised time with their father once per fortnight for the past three years.

7. In January 2014 the two younger girls’ time with their mother was reinstated on a supervised basis.

8. On 20 January 2014 final Orders were made in relation to N, placing her under the sole parental responsibility of the Minister of the Department.  N turned 18 in February 2014 and has lived independently since that date.

9. The father lives in a two bedroom unit with B but says he will find larger accommodation if needed.

The orders sought

1. Both parents seek orders that would see B remain in the care of his father and have R and M return to the father’s care.  Although, as I understand it, the mother wishes for the father to immediately have the children returned to his care, it is the father’s proposal that orders be made for a graduated return of the children into his care and a 12 month period of shared parental responsibility between himself and the Secretary of the Department.  These orders are opposed by the Secretary in relation to the two younger girls.

2. The mother has not filed an amended application, but she is seeking orders that, in the event that the children remain in the care of Community Services, they spend unsupervised time with her one Saturday per fortnight during the day and gradually increasing to overnight time and two days on the weekend every fortnight.  She also seeks orders that the children spend time with her on special occasions such as Mother’s Day, birthdays and on two days per year of religious significance.  If the Court decides that the younger two girls are to live with their father then the mother seeks orders for them to spend time with her every fortnight from Friday afternoon to Sunday afternoon and on special occasions.

3. In addition to the orders outlined above the father proposes that the children spend time with their mother each alternate Sunday from 10.00 am until 7.00 pm, on Mother’s Day and on one religious day of significance each year.  He also agrees to attending, engaging and completing any course or program that Community Services directs him to do and if he does not do so then the younger two children are not to transition into his care.  He also seeks a restraint against the parties denigrating each other in the children’s presence and a restraint against the parties physically disciplining the children.

4. In the event of the younger two children not being restored to his care, the father seeks to spend time with them each Saturday from 10.00 am to 7.00 pm and one afternoon each week after school, graduating to overnight contact.

5. The Secretary of Community Services seeks orders that the parents have equal shared parental care for B and that he remain living with the father.  The Secretary proposes that the Minister of Community Services have sole parental responsibility for the younger two children until they each attain 18 years of age and that the Minister direct where they live.  The Secretary seeks orders that the younger two children’s time with both their mother and with their father, which is proposed to occur separately, be supervised on 12 occasions each year for a period of two hours on each occasion.  The Secretary proposes that if Community Services deem that it is in the younger two children’s best interests, their time with the mother may progress to being unsupervised.  It is also proposed by the Secretary that the children’s time with each parent be subject to their wishes.  The Secretary also seeks restraints upon both parents physically assaulting the children, or denigrating the children, or discussing the proceedings in the presence of the children, or generally exposing the children to domestic violence, with a power of arrest without warrant if the police believe on reasonable grounds either parents has breached any of the injunctive orders.

6. The Independent Children’s Lawyer supports the Secretary’s proposed orders in respect of the two younger children as to parental responsibility and their living arrangements, and time with their parents, together with the injunctive orders, save for the power of arrest without warrant.  The Independent Children’s Lawyer, however, seeks no orders in respect of B.

The Areas of Dispute

1. The extent to which the father subjected the children or exposed them to abuse or family violence, his capacity to meet the children’s needs and his attitude to them and responsibilities of parenthood are central issues in this matter.  

2. There are factual disputes concerning the level of violence perpetrated by the father in the family, the father’s parenting capacity and steps he has taken to address his shortcomings.

Family violence

1. The father says that he has never been violent towards the mother or any other person in the presence of the children and that the only physical interaction he had with his children was in the course of reasonable and appropriate discipline.

2. The mother has given consistent evidence that the father was violent to her during the marriage, harassed and stalked her for some time after the marriage had ended and that the children were at times exposed to this behaviour.  The mother gives inconsistent evidence in relation to the more general issue of violence in the household, including in the context of discipline and violence perpetrated by each of the parents towards the children.

3. According to the mother’s first affidavit, the father was physically violent to her on two occasions during the marriage.  She says that in 2005, following an argument, the father punched her in the face, threw her to the ground, and stepped on her.  She also says that in December 2007, following another argument, the father punched her in the face and on her arms, threw her to the ground and stepped on her, causing bruising to her face and back.  The mother says the children were present.  This was the incident that ultimately caused the mother to separate from the father.

4. Under cross-examination by Community Services, the mother maintained that the father had been violent towards her on up to four occasions during the marriage and on occasions he bruised her.  It was not put to the mother on behalf of the father that this evidence was untrue.

5. The mother also agreed that she had told Community Services caseworkers about the father’s violence towards her.  She was asked under cross-examination about her complaints to caseworkers in May 2011 of emotional abuse by the father and explained that she found the emotional abuse worse because he “used to harangue me to the point I’d feel worthless”.  This evidence was not challenged under cross-examination by the father.

6. Under cross-examination, the mother agreed that she had sought two apprehended violence orders against the father.  The first of these orders was sought in April 2008 when the mother alleged that the father had been threatening and stalking her after they had separated.  The mother subsequently asked police to withdraw this application.

7. The mother also alleged that prior to separation the father threatened her that if she obtained an apprehended violence order against him he would “fire-bomb the car and burn down the house”.  A second apprehended violence order was sought in July 2008, four months after separation, and was made in the Local Court in July 2008 for a period of 12 months.  The mother’s car was totally destroyed by fire in the driveway of her home at around 2.00 am the following day.  The mother said under cross-examination that, at the time, she believed that the father was responsible for the destruction of the car, but that she no longer believed that.  At the time of the hearing, she said she did not know if he caused this to happen.

8. The father denied ever being violent towards the mother and maintained this position under cross-examination.

9. It is also alleged that the father was sexually violent towards his second wife, who lived with him and his children for five days in June 2010.  The father stated in his affidavit that his second marriage was not successful, that his wife was from Lebanon and that she only lived with him for four to five days, together with the children.  However, under cross-examination more details emerged, including that he had married his second wife in July 2009 and her arrival in Australia was delayed until mid-2010.  In relation to the allegation of sexual violence against her, the father says in his affidavit (at [173]) that he read about this in documents produced by the police for the first time in Court at the commencement of the hearing and that the allegations are completely untrue and did not occur.  He also said that he had not been questioned or charged by police regarding the allegations.

10. Police records[5] indicate that the father’s second wife complained to police on 10 June 2010 about the conduct of her husband.  Despite submissions made on behalf of the father that there could be some doubt that the person being complained about was the father, I am satisfied that the complaints did relate to him.  Although the alleged offender was originally said to be named [the same spelling of the father’s given name and a different but similar spelling of the father’s surname], in a later police report he is referred to as [the same spelling of both the father’s given name and surname].  Further, in another police report the children are referred to by name.  The father also agreed under cross-examination that he was married in Lebanon the previous year, and that his wife came to live with him and his children for four to five days in mid-2010, which is consistent with the police report.

    [5] Exhibit 16 – Tabbed portions of subpoenaed material from NSW Police sleeve 7 dated 6 and 14 June 2010.

11. The details of the alleged sexual violence contained in the complaints are that on 30 May 2010 the victim says she was collected from the airport by her new husband, who lived with his four children from a previous relationship.  The victim alleged that when she arrived at the home her husband wanted sex from her, which she declined, feeling tired after the long trip and wanting to rest, but that her husband demanded sex from her and forcibly had sex with her.  The victim described the experience as painful and said she was crying but her husband told her to be quiet and stop yelling as there were kids in the house.  The victim said she continued to refuse to have sex and, as a result of the first assault, she was bleeding and in pain.  The victim said for the following two nights the same occurred and that she was left bleeding and in constant pain.  The victim said that family members then collected her from her husband’s home and that at the time she made the complaint to police her whereabouts were unknown to her husband.

12. It was not submitted on behalf of the father that the Court could not be satisfied that he had been violent towards the mother or that the children had not been exposed to this violence.

13. It was submitted on behalf of the Secretary of Community Services that family violence is clearly proven to the requisite standard on the basis of the mother’s statements in her affidavit, the making of the Apprehended Violence Order and the mother’s oral evidence.

14. I am satisfied on the balance of probabilities, taking into account the matters set out in s 140(2)(a)-(c) of the Evidence Act 1995 (Cth), that the father was violent towards the mother during the marriage and that the children were exposed to that violence for the following reasons. The mother remained firm under cross-examination that the father had assaulted her even though she was otherwise favourable towards the father so far as the care of the children was concerned. The circumstances of the making of the Apprehended Violence Order, which were uncontradicted, corroborate the mother’s evidence about the father’s conduct and the complaints that she made to Community Services are consistent with the evidence in her affidavit, which she maintained under cross-examination.

15. I cannot be satisfied as to the allegation of sexual assault perpetrated by the father against his second wife, even though complaints of a similar nature were also made to Community Services.  The hearsay complaints contained within the police records and Community Services records cannot be given the same weight as the allegations made by the mother against the father, which were maintained in Court under cross-examination.  However, as submitted by the Secretary of Community Services, not being satisfied to the requisite standard that the sexual assault of the second wife did occur does not prevent the same circumstances being considered in determining whether there is an unacceptable risk of harm to the children being exposed to the violent conduct of their father.

16. Although Dr J said in his report that he found no evidence to suggest that there was habitual violence between the father and the children, there is, in my view, a great deal of evidence relating to physical assaults on the children, particularly by the father.

17. Firstly, there are a number of reports made to Community Services that the father assaulted the children when they were in his care after the parents had separated.

18. On 3 March 2009, at around the time the father took the children from the mother’s care without her consent, Community Services received a report that N alleged her father had been physically and emotionally abusive towards her and that she did not want to live with him.  It was alleged that the father had pushed N against a wall, held her there and was verbally abusive, and that he had held her by the back of her neck and shaken her.[6]

    [6] Affidavit of Ms H at [21].

19. In August 2010 a report made to Community Services relating to the sexual violence against the father’s then wife also contained allegations of violence against B.  It was reported that the father had been seen to throw B across the room and “bash” him and that he had threatened B with a knife.[7]

    [7] Affidavit of Ms H at [22].

20. In February 2011 Community Services received information that the father had pushed and punched N.[8]

    [8] Affidavit of Ms H at [24].

21. On 24 March 2011 the father was arrested and charged with assaulting N and B on the previous night.  On that day at school N made a complaint about her father beating her on the previous night and police were called.  N showed school staff welts on her upper left arm and was described as very upset in school records.[9]

    [9] Affidavit of Ms H at [25] and exhibit 8 – tabbed portion of subpoenaed material from Department of Education and Communities sleeve 8.

22. In addition to the reports made to Community Services, N also gave a version of the events in her statement to police, that said:

    Since I was little my father has always hit me.  My mother has pictures of me with bruises on my arms from where he has hit me.  He has used his hands to hit me and has also used belts.  I haven’t said anything about it as I am scared about what he would do to me and my sisters. …[10]

    [10] Annexure AF to affidavit of the father sworn and filed 31 March 2014.

23. In relation to the first assaults of herself and B on 23 March 2011, N said that on 23 March 2011, when her father and siblings were at home and she was cooking dinner for the family, a verbal argument commenced and the father accused B of “giving [him] attitude”.  She said:

    11.My brother was sitting down in a chair at the table next to me.  My dad walked up to [B] and stood above him and kept screaming at him.  Dad then paused for a second and my brother had his arms up to protect himself dad (sic) then hit him on the head a couple of time (sic) with an open hand.

    12.My brother got up from the table and walked over to the kitchen and started washing a plate, my dad followed him and stood behind him, I then saw my dad raise his right arm and hit [B] with an open hand, slapping him on his neck and his head, and I then turned around. I could hear the hits, I’m not sure how many time (sic) he hit him.  It went on for like three minutes or something.

    13.I turned around to my sister and said “oh my god.”  I then saw my dad standing to the left of you (sic) and I felt him hit me really hard to the side of my neck, my head got pushed forward to the table when he hit me.  I stood up and tried to get away from him. …[11]

    [11] Ibid.

24. In relation to the allegation of assault occasioning actual bodily harm, N described her father later coming into the children’s bedroom and requesting the laptop computer recharger.  N said she was sitting on the bed with her father standing and that there was a cable next to her on the bed, which her father grabbed.  She then said:

    … When he picked it up in his right hand and pulled his arm back like he was going to hit me with it.  I looked at him and said “hit me.”  My dad then pulled his arm back and I tried to roll away from him, he then moved his arm towards me and hit me with the cable.  I felt it hit the top of my left arms (sic), it felt like a slap and I heard a “whack” noise.[12]

    [12] Ibid.

25. The father’s version of these events contained in his affidavit makes no reference at all to the alleged assault of B and the first assault of N.  In relation to the incident when N says her father struck her with a computer cord, the father says:

    … [N] and [B] then went to their room where I noticed that [N] and [B] were on their laptops downloading a movie.  They would not let me see what they were doing and I believed that they were inappropriate movies for them to view.  I said that I was going to take the laptop cable and that’s when [N] went crazy and began screaming and shouting at me.  I managed to get the laptop cable from [B] however I could not get it from [N] as she held it really tight.  I then decided to take [M] and [R] and I left the home as I needed to get fresh air and calm down and I knew if I stayed any longer that I may use physical discipline on [N] which I did not want to do.[13]

    [13] Affidavit of the father at [116].

26. The father said in his affidavit that B had given evidence to the police that he had not hit N with the cable.[14]  However, there is no evidence of B’s version in these proceedings.

    [14] Ibid at [140].

27. On 25 March 2011 a Community Services caseworker took N to the doctor and reports that she observed bruising on N’s arm and saw a large red mark on her left arm.[15]

    [15] Exhibit FE-2 at page 28 of affidavit of Ms H.

28. An email from a child protection caseworker working with the children[16] records that N and B were scared and confused.  When the caseworker and the children were returning to the Community Services office following the medical examination they saw their father and his associates through the car window and the children were described as “very distressed”.  N was shaking and started crying and they said they did not want to see their father.

    [16] Ibid.

1. Community Services records summarise a conversation between N and the caseworker on 12 August 2011 in which N is recorded as saying:

   … My Dad says I’ve caused all of this … He thinks he didn’t do anything and that I just caused trouble.  He’s not innocent at all and I will never forgive him for the way he beat me that night, over nothing.[17]

   [17] Exhibit FE-2 at page 87 of affidavit of Ms H.

2. I am satisfied to the requisite standard that the father did assault N and B as outlined in N’s statement to police for the following reasons.  N has not resiled from this version and subsequently confirmed its truth to caseworkers.  Although the father says in his affidavit that he was not found guilty of this offence, the evidence was not tested in the criminal proceedings and the charges were withdrawn without a finding having been made.  The father does not refer to the assault on B in his affidavit and has not specifically denied that it occurred.  Further, a number of independent people, including a doctor and school staff, observed marks on N’s arms consistent with her description of the assault, and the father’s version of the events provides no explanation for the marks observed.  Although the mother’s evidence concerning the severity of the father’s physical actions towards the children is inconsistent, there is uncontradicted evidence that she has informed Community Services officers that the father has hit the children, especially N.

3. In addition to the specific incident in March 2011 there is other evidence of the father’s violence towards the children in general.  First, there are statements from the mother.  On 25 March 2011 the mother was interviewed by Community Services officers and when asked whether the father ever hit the children, she is recorded as having said:

   Yes. …  To discipline them, I am always there.  If I feel it is not right, I take kids, then he gets angry.[18]

   When asked how the father hit the children, the following is recorded:

   … Go for face.  Bruises.  Even when girls young, had to keep them away from school.  All four of them.[19]

   [18] Ibid at page 32.

   [19] Ibid at page 33.

4. The Community Services case manager was not cross-examined to suggest that her records were incorrect, nor was it suggested to the mother that she was untruthful when she told Community Services that the father was violent towards the children.

5. Secondly, the children have also each made other generalised complaints about their father’s violence.  In a Community Services record of a conversation between N and Community Services officers in August 2011[20], after she had started living with her friend’s mother, N is recorded to have said words to the effect of “maybe it’s better if I go back to live with him [the father]. Then if the kids go back there I can protect them. I can take the hits, he’ll hit me more anyway because for him I am like Mum.”

   [20] Ibid at page 95.

6. In August 2011 a risk of harm report[21] indicated that each of the children made allegations of violence within their home.  M is reported as saying that she had seen her father hit N, B and R and also said that N hits her and the other children.  R said that her father hits her “a little bit but not much”, and confirmed that she had witnessed her father hit N and B.  B is reported as saying that his father “doesn’t talk, he just hits” when he is unhappy about the children’s behaviour and reported that “every day, he slaps me hard”.  B also said the father frequently throws objects, such as spoons and forks.  B reported that in August 2010 his father hit him when N informed the father that B had interacted positively with his mother at Court.  He said “I had so much bruises”.  N reported that her father regularly hits the children and that he had caused her bruising.

   [21] Exhibit FE-2 at pages 100 – 102 of affidavit of Ms H.

7. When the children were interviewed in September 2011 when consideration was being given to them returning to their father, R and M repeated their allegations that their father had hit them, whilst B reported that his father “used to always hit us” but he “thinks he’s changed now”.[22]

   [22] Affidavit of Ms H at [70].

8. Each of the parents has at times agreed in Community Services interviews that they have hit the children.

9. In a risk of harm report of August 2011 both parents indicated that they had hit the children.  On this occasion the father admitted he smacked the children but denied he had ever hit them forcefully or caused injury.   However, the parents have been inconsistent on this issue with Community Services, at other times minimising their violence or denying it.

10. In his affidavit the father said that he has never hurt his children, that they are usually very well behaved and that he used physical discipline on very rare occasions.[23]  He said there were some occasions when both he and the mother smacked the children on their bottom or hand for being naughty but this was to discipline them when necessary.  In another paragraph in his affidavit, the father says he now knows and understands that he cannot, under any circumstances, use physical discipline on the children.[24]

    [23] At [127] and [163].

    [24] At [174].

11. Although the father says in his affidavit that he has learnt from his mistakes, under cross-examination he did not agree that he had made any mistakes in relation to the discipline of his children.  It was also consistently submitted on behalf of the father that his only physical interaction with the children was in the course of lawful and appropriate discipline.

12. On the basis of the reports made on numerous occasions by each of the children to Community Services and the evidence of the mother, which was not challenged under cross-examination, I am satisfied that the father was violent towards each of the children other than M.  I am also satisfied that this violence exceeded acceptable discipline, particularly as the two eldest children each refer to the father causing bruising, and in light of the evidence that the mother told Community Services that the father had bruised the children even when they were young.

13. Allegations of violence are not limited to the father.  In June 2011 when Community Services officers interviewed N in relation to her complaint that her mother and maternal grandparents wanted her to travel to Lebanon to marry, N said her mother had hit her, pulling her hair and causing her glasses to fall off[25].  N went on to describe her mother slapping her on the face[26].  In an interview with Community Services on 28 June 2011, the mother admitted that she had hit N[27] and, in the proceedings, maintained that both parents had at times physically disciplined the children.

    [25] Exhibit FE-2 at page 60 of affidavit of Ms H.

    [26] Ibid at [61].

    [27] Ibid at [67].

The father’s parenting skills and capacity

1. The father’s parenting capacity is central to the decision I am required to make as each parent seeks orders for the younger two children to be returned to his care.

2. In his affidavit, the father does not refer to his involvement in parenting the children during the marriage.  He also did not dispute the mother’s evidence that she was the primary care giver at this time.  He says, however, that prior to the mother returning (presumably from Lebanon) when the children were in his care, he cooked the children’s food, washed their clothes, cleaned the house, took them shopping and on outings.[28]  The father described the children as very happy and settled with him, but said it took them some time to overcome the trauma of their mother’s abandonment and previous neglect of them.[29]

   [28] Affidavit of the father at [81].

   [29] Ibid at [82].

3. In another part of his affidavit, however, the father says in relation to this period when all the children were in his care that “it was not easy raising four children on my own with no assistance from the mother”.[30]  When he was cross-examined about his short second marriage he said that he married this woman so that she could care for his children.

   [30] Ibid at [170].

4. In a risk of harm report of 24 August 2011[31] R indicated that it was N who did most of the house work whilst her father “sleeps too much during the day”.  She said that he did most of the cooking, however.  In the same report N is reported as having said that she thought the father did not have the skills to look after the children, which effectively resulted in N doing that caring herself.  She claimed that she cleaned the house, minded the children, disciplined the children and praised them but that the father sometimes cooked and did grocery shopping. 

   [31] Exhibit FE-2 at pages 101 – 103 of affidavit of Ms H.

5. Although the father says in his affidavit that he has “learnt from [his] mistakes”[32], under cross-examination he maintained that he had not made any mistakes in the parenting of his children.

   [32] Affidavit of the father at [216].

6. The father’s parenting capacity was identified by Dr J as a matter of some significance in his report, when he said that the father “needs particular assistance with parenting and cultural assistance to try and adjust to caring for his children in an Australian context and to overcome his feelings of ‘learned helplessness’”.  The doctor believed that both parents should attend parenting courses to understand particularly how to manage teenage children.  He was also of the view that the father may benefit and would need a process of support through a program such as Brighter Futures whilst he is strengthening himself and re-establishing himself as a primary carer.  The doctor’s recommendation was:

   Should the father be unwilling or unable to cooperate and accept that he needs assistance to be able to manage the children as the primary carer then it would appear that the mother is not an option to care for the children.  Therefore tragically it may by default require the children to remain in foster care.

7. Under cross-examination, the doctor did not resile from his views that it was necessary for the father to acknowledge the inappropriate use of force with his children and that he needed assistance with parenting, to receive that assistance and to demonstrate that he could apply it.  Dr J seemed concerned that the father had, to date, still not acknowledged that he needed assistance in these areas and seemed to have been unable to manage to access the appropriate services.

8. Dr J was not challenged on his opinion that in these circumstances neither parent had the capacity to care for the children.

9. Dr J’s evidence was not contradicted and, having regard to his expertise, I accept it and attach weight to it.  I am satisfied that the father has some significant deficits in his parenting capacity.

10. The father has not completed programmes recommended by Dr J and Community Services.  In his affidavit, he says that, at times he has felt unmotivated and that as they are group programs, conducted in English and he does not have a good understanding of English he feels embarrassed that he would have to attend with an interpreter.  He also says that he is concerned that he cannot meet the cost of these courses.  The father says that for these reasons he has proposed that it is best for him to engage with the “Arab Council” which offers programs on parenting and anger management, uses Arabic speaking counsellors and the services are free.  There is no evidence about the content of the Arab Council courses, that the father has completed any of them or that the father can apply any of the information he may have received.  Accordingly, I have significant concerns about the father’s parenting.

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying them, set out in section 60B, form the framework for the part of the Act dealing with parenting.

2. The objects are to ensure that the best interests of children are met by:-

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. According to section 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

5. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations

1. As these proceedings commenced prior to 7 June 2012, each of these primary considerations is to be balanced equally and the provisions of the Act as they were at the time are applied to these proceedings.

2. The primary considerations (under s 60CC(2)) are:-

   (a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

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

Meaningful relationship with both parents

1. Although the phrase “meaningful relationship” is not defined in the Act itself the Full Court in McCall & Clark[33] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[34] and has also agreed with the reasoning of Bennett J in G & C[35].  Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.

   [33] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92.

   [34] (2007) Fam LR 518.

   [35] [2006] FamCA 994.

2. Bennett J discussed the terminology in G & C (supra) and said “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”

3. The Full Court in McCall & Clark (supra) said at [122]:

   No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

4. It was submitted by the mother and on behalf of the father that there would not be a meaningful relationship arising between the children and the parents from the orders proposed by the Secretary, that is, for time with each parent only once a month and potentially supervised.  The Independent Children’s Lawyer, on the other hand, supports the amount of time proposed by the Secretary and says this would enable the children’s relationships with their parents to continue.  The Independent Children’s Lawyer also supported such time being supervised.

5. In my view, the orders sought by each of the parties in respect of the two younger children will promote the children having a meaningful relationship with both of their parents.  The parents’ proposal that all of the children reside with their father and spend some time with their mother each alternate weekend clearly promotes the meaningful relationship with each of the parents to a greater degree than the Secretary’s proposed orders, which only provide for some limited time with each parent, about once a month.  However, in my view, real concerns arise as to whether there will be a positive benefit derived by the two younger children if I make orders which foster a greater relationship with the parents than that proposed by the Secretary.  The reason for these concerns are explained later in these reasons for Judgment.

Protection from harm

1. All of the children, in my view, have been harmed psychologically from being subjected to and exposed to abuse and family violence.  I am satisfied that the children were exposed to violence perpetrated by the father against the mother and, other than M, were subjected to harsh physical punishment themselves.  It is also of concern that the younger children and the mother complain that N had also begun hitting her younger siblings herself after having been exposed to violence at the hands of her father, and that the foster carers complained that B hit his younger sisters.

2. Dr J was concerned that the father had not to date acknowledged the inappropriate use of force with his children or demonstrated that he was capable of applying his knowledge about appropriate non-violent discipline.  In the proceedings the father continued to maintain that he had not used inappropriate force upon his children and maintained under cross-examination that he had not made any mistakes in relation to the discipline of his children.  Further, the whole tenor of the submissions put on behalf of the father was that he was not habitually violent and that his discipline of the children was appropriate and acceptable.

3. I am satisfied that the father did use excessive force in the discipline of his children.  He has not acknowledged the inappropriate use of force, has not participated in programs including anger management or demonstrated that he can apply anything he has learned elsewhere such as in sessions with his psychologist.  In my view, there is an unacceptable risk that the father will use violence in his management of the two younger children should they return to live with him.

4. The father has also not responded to the mother’s specific allegations of domestic violence upon her except to deny generally that he was violent towards her.  In light of the body of evidence before me, I am satisfied that the marriage involved some degree of family violence and that the children were exposed to it.  Although it could not be said that there is a current risk of the father continuing to be violent towards the mother, there is, in my view, the risk to the children of exposure to family violence in the event that the father forms a new personal relationship and is violent in that relationship.

Additional considerations

1. Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views expressed by the children and weight the Court should give to such views

1. It is the father’s case that B has made his wishes to live with his father clearly known in moving to live with him.  However, on the uncontradicted evidence, after being asked to leave the foster carer’s home due to his behaviour, B’s mother and grandparents refused to have him live with either of them and he refused to live in a refuge.  I accept the Secretary for Community Services’ submission that returning to live with his father was a last resort as he had nowhere else to live, rather than an active choice.

1. A document which is said to be a letter written by B was tendered in the proceedings[36], in which B essentially makes a submission himself as to why the Court should make orders as sought by his father.  I cannot be satisfied that this is an independent expression of B’s views as it bears a significant resemblance to submissions made on behalf of the father, such as that he is being punished unfairly for something that happened years ago.  Although it is understandable that B wishes to help his father and have the family reunited, I cannot attach much weight to his statements, particularly where they concern matters contrary to expert evidence such as parenting capacity.  I also note that some of the matters asserted, such as that the father is closely involved in B’s every day care, are contrary to the father’s evidence that B essentially makes his own decisions about his life and cares for himself.

   [36] Exhibit 12.

2. Dr J stated that R and M both indicated they wanted to live with their father.  Both also indicated that they wanted to spend time with their mother.  R was nearly 12 years at the time of interview, whereas M was almost 7 years old.  The younger two children’s views, particularly M’s given her age, will not be determinative in the context of this case where the concerns relate to the risk of harm that may be posed by the father and his parenting capacity if the children were to live with him.

3. The Independent Children’s Lawyer is of the view that the children’s time with their parents should not be subject to their wishes as proposed by the Secretary, as it is submitted that there needs to be some certainty in respect of such time.

Nature of the relationship of the children with each parent and other significant persons

1. The mother was the primary caregiver of the children since birth until March 2009 when the father removed them from her care.  She then travelled to Lebanon and remarried and was then prevented from seeing the children for many months.  When the children were placed back in her care she did not want to care for them and felt torn between the children and her second husband.  Her current relationship with the children has been tainted by her belief that her second husband should not care for the children of her previous marriage.  She abandoned the children and they were, tragically, placed into foster care, despite, in Dr J’s opinion, her being “extremely competent and [having] a very good relationship with the children”.

2. The father assumed the care of the children about a year after the parties’ separated and was the primary carer up until the children were removed from him two years later following his arrest for allegedly assaulting N and B in the home.  Overall, the doctor formed the view that, “(d)espite the problems there’s clearly a strong relationship between the father and the four children.  I believe he cares a great deal about them…”.

3. Overall, the doctor was of the view that all of the subject children “clearly had a strong relationship with both parents”.

4. In submissions the mother placed emphasis on the children being together.  On behalf of the father it was also submitted that weight should be attached to the sibling relationship and that orders protective of the sibling bond would be in the children’s best interests.  I agree that the sibling relationship is important in this matter. As I understand it, the proposal of the Secretary is for the two younger children to be placed together and for provision to be made for sibling contact.  All the siblings will not in any event be living together as N has moved into independent accommodation.

Willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the children and the other parent

1. In my view, the evidence demonstrates that each of the parents is willing to encourage and facilitate a close and continuing relationship between the children and the other parent when it meets their own needs.  The mother gives evidence that the father was violent towards her during the marriage and that a particular episode of violence finally ended the marriage.  She also gives evidence, albeit contradictory, that the father has been violent towards the children, in particular N, and admitted to Community Services that she is concerned about the children in the care of the father alone.  Further, during the early stages following separation prior to the mother’s remarriage when she had a willingness to care for the children, the mother had grave concerns about the father spending time with the children.  On the other hand, she maintains in these proceedings a wish for the children to be returned to the care of the father.  In the opinion of Dr J, when asked under cross-examination, the mother’s position does not so much indicate that there are no concerns held by her about the father’s parenting capacity but “gives herself a way out” in relation to her refusal to have the children return to her care.

2. Similarly, the father’s own willingness to facilitate and encourage a close and continuing relationship between the children and their mother seems affected by his own views concerning the marriage breakdown.  The father seemed to struggle significantly with the mother leaving him and initially engaged in stalking her for some period after separation until an Apprehended Violence Order was made.  The father removed the children from the mother’s care without her consent and sought orders to the effect that the children should spend time as arranged between the parents and then did not agree that the children could see their mother.  In these circumstances, I would have real concerns about the father’s capacity to ensure that the children had an ongoing relationship with their mother if they were to live with him.

The likely effect of change in children’s circumstances

1. On the basis of the evidence of Dr J, there is a risk that the two younger children may be adversely affected by remaining in Departmental care.  However, the Secretary is both willing and able to facilitate and encourage the children’s relationship with each parent.

2. There are also concerns about the likely effect on the younger children if they return to live with their father.  The children clearly love their parents and would prefer to live with them.  However, there is, in my view, a significant risk that if the children return to the care of the father even under the graduated regime proposed by him, they will again be removed as he has not addressed his parenting shortcomings.  This is because R is approaching the age where the father had difficulty controlling her elder siblings and resorted to inappropriate physical discipline or the intervention of police.  Dr J particularly recommended that the parents receive parenting assistance in relation to the management of adolescents, which they have not done.  The father also relied heavily upon N to assist in the day-to-day care of her younger siblings from around this age and there is, in my view, a real risk that this will also occur in relation to R.

3. B has been living with his father, on his own volition, since November 2012.  There are no proposed orders that would see this situation changing.

The capacity of each parent to provide for the children’s needs (including emotional and intellectual needs)

1. This consideration looms large in this case.

2. The mother has abandoned the care of her children but seeks to spend significant time with them.  Her actions, in my view, show a deficiency in her capacity to prioritise the children’s emotional needs above her own and those of her new husband.

3. Whilst the father clearly has a close bond with the children, during the period in which they were in his full-time care and more recently since B has resumed living with him, many inadequacies in his parenting capacity have been revealed.  In particular, the father does not appear to be able to exert authority over the children, especially as they become older, in an appropriate manner without resorting to physical coercion.  The serious assault on N and B in March 2011 occurred approximately one month after N returned to live with her father.

4. The father also appears to have serious short-comings in his capacity to care for the children without assistance.  In February 2011, after N returned to live with her father, when he was having difficulties with her behaviour he telephoned police to ask them to take N to her mother’s home.  In December 2012, approximately one month after N again returned to the care of her father, he again called police and asked them to take N away.

5. When the father first took sole care of all of the children, on a number of occasions he requested financial support from Community Services.  He also relied heavily upon N to assist him in the care of the younger children and also expected his second wife to assist him in this manner.

6. Dr J was particularly concerned that the father needed parenting assistance and cultural assistance and may benefit from practical family support, but the father does not acknowledge he needs this assistance.  Although he says in his affidavit that he has learnt to prioritise and put the children’s wellbeing and development first, as a result of the sessions he has attended with Dr K, a psychologist, he was unable under cross-examination to explain what this actually meant.

7. The orders proposed by the father envisage the Secretary of Community Services and the father sharing parental responsibility for 12 months and for a gradual transition to his fulltime care.  However, this order is opposed by the Secretary, who has no confidence that the father has improved in his parenting or has been able to overcome the “learned helplessness” described by Dr J.  The doctor’s report was released in August 2012 but the doctor’s recommendations have still not been complied with.  The father has completed no practical parenting programs or programs directed to managing teenagers and it is unknown whether the assistance he now seeks from the Arab Council is directed at these deficits.  It was also recommended by Dr J that he complete an anger management program and acknowledge his past use of violence and demonstrate that he can apply non-coercive discipline in the future.  The father has not completed such programs and continues to deny that he has used inappropriate violence with respect to disciplining his children.

8. The doctor also assessed that both parents had reactive depression and adjustment disorders and needed individual assistance.  It is to the credit of the father that he has attended a psychologist, Dr K, on about 20 occasions.  However, as noted, he was unable to identify under cross-examination what he had actually learnt in relation to meeting the children’s needs.

9. If the order sought by the Secretary and supported by the Independent Children’s Lawyer is made, the children will remain in foster care.  There is no evidence to suggest that the Secretary and the foster carer would not have the capacity to provide for the physical needs of the children and their significant emotional needs, and to provide for a continuing relationship between the children and each of their parents through time together each month.

Background and cultural factors

1. The children are of Lebanese Muslim background and have a right to enjoy their culture.  In the event that orders are made as sought by the Secretary, it is proposed that the children be placed with Muslim foster carers.

Practical difficulty and expense in a child spending time with/communicating with a parent

1. This factor is not particularly relevant in the context of this case, other than to say that wherever the children live, spending time with either of their parents will involve some practical arrangements and expense.

Family violence

1. The issue of family violence within this family has been dealt with to a great extent above.  I am satisfied that both parents have physically disciplined the children in the past and have, in particular, perpetrated an unacceptable level of physical discipline on the older children, especially N.  I am also satisfied that the father has been physically violent towards the mother during the relationship and that the children have been exposed to this violence.

Responsibilities of parenthood

1. Whilst it appears that both parents do love their children and have a close bond with them, neither has demonstrated that they are responsible parents.

2. The mother has completely abrogated her responsibilities as a parent in refusing to have the children live with her and proffering as an excuse that her husband should not be required to care for another man’s children as it is contrary to Islamic law.

3. Both parents also continue to maintain, even at the time of the proceedings, that N is responsible for the family’s predicament and have continuously failed to take responsibility for their own actions which has impacted upon their children.  For example, in conversations with Community Services in late June 2011, the mother blamed N for having sent her father to prison and for making the rest of the family’s lives difficult.[37]

   [37] Exhibit FE-2 at pages 65 – 76 of affidavit of Ms H.

4. Community Services records indicate that in July 2011 N told the Community Services caseworker that at school that day she approached her brother but he pushed her away and did not want to speak to her.  N was distressed and feared what her mother might be saying [about her] to her siblings.[38]

   [38] Ibid at page 83.

5. Community Services records indicate that in August 2011 N is recorded as saying “(m)y dad says I’ve caused all of this.  They all think I’ve caused this.  I’ve done nothing wrong except stand up for myself.” [39]

   [39] Ibid at page 87.

6. Community Services records also record N as telling the caseworker on 22 August 2011 about recent contact she had had with her father, in which:

   He was telling me I need to apologise to him and he told me that I need to tell DOCS good things about him. He says it’s up to me and that I have to tell DOCS and the court.  He was saying that it is all my fault and that because of me, my sisters were taken away from him.  He tries to make me feel bad about my sisters. …[40]

   N reported that she felt particularly stressed by her father constantly telephoning her and blaming her for the family’s dilemma.  Community Services offices held a meeting with the father on 23 August 2011 and asked him to stop contacting N.  The father is recorded as having said that N lies and when he walked out of the interview he said “well you can have her then and you can raise her”.

   [40] Ibid at page 94.

7. The father has also at times blamed the other children for their situation.  For example, in a risk of harm report of August 2011 the father said, after having admitted that he smacked of the children on occasion, that he would take on the care of the children again but they would have to apologise to him for making up lies about him hitting them first.[41]

   [41] Ibid at pages 100 – 103.

8. Both the parents and the maternal grandparents have blamed N for trying to take steps to improve the situation and to help her parents take responsibility.  Dr J opined that N was “probably the most sensible and responsible member of the family”.[42]

   [42] Exhibit 1 at page 20.

9. In the course of an interview between Community Services and the mother on 31 August 2012, after B had been removed from his foster carers due to his behaviour, the mother is recorded as having said that everything was fine with the father and that it was N who ruined the children’s lives.[43]  The mother continued to maintain this position and to scapegoat N in conversations with the younger children, and as a result the mother’s time with the children was suspended in late 2013.

   [43] Exhibit FE-2 at page 215 of affidavit of Ms H.

10. I accept the submission of the Independent Children’s Lawyer that the father’s attitude towards caring for B since he has returned to his father’s care, whereby he essentially allows B to do as he wishes, indicates his lack of responsibility as a parent.

Orders that would least likely lead to further proceedings

1. The father seeks an order for shared parental responsibility with the Department in respect of the two younger children and that they gradually be returned into his care.  This is proposed on the basis that by the time he has the children in his care full-time, he will have addressed all of the inadequacies in his parenting.  If the father were able to address his shortcomings then his proposed orders have the advantage that the children will have been placed with him and there would be no need to return to Court.

2. However, there is no evidence to suggest that this will occur and the fact that Dr J’s recommendations made in August 2012 still have not been acted upon suggests that it is highly unlikely the father has this capacity.  As a result there is no advantage to making the order sought on the basis that it would be less likely to lead to further proceedings.

Parental responsibility

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, section 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

2. Where the Court is to determine parental responsibility, the starting point is section 61DA.  This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.  However, the presumption does not apply if there are reasonable grounds to believe that a parent, or person who lives with a parent, has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)). 

3. In this case, I am satisfied there are more than reasonable grounds to believe that the father has engaged in abuse of the children and family violence.

4. As the presumption has been found not to apply, the issue of parental responsibility is then to be determined having regard to the best interests of the children.

Conclusion

1. Having regard to the objects and the principles of the Act, each of the primary considerations and each of the relevant additional considerations, I am of the view that the children’s best interests will be best met by the orders proposed by the Secretary of Community Services, with some small exceptions. The Secretary’s proposal is largely supported by the Independent Children’s Lawyer.

2. The children were abandoned by their mother, who has abrogated her responsibility as a parent.  They were removed from the care of their father by Community Services due to his violence and incapacity to meet their needs.  Unfortunately for the children, the mother remains unwilling to care for them and the father has not shown that he has the capacity to meet their needs.  There remains an unacceptable risk that he will be violent towards them and/or will expose them to violence in his home.  Although the children wish to be in their father’s care and he has a close bond with them, I cannot be satisfied that he will protect them from harm or has the capacity to meet their needs.

3. So far as the living arrangements of R and M are concerned, the only appropriate order consistent with their best interests is for them to live as directed by the delegate of the Minister or Secretary of Community Services.

4. Whilst I do not make a finding that it is in B’s best interests for him to reside with his father, in light of his age (17) and his clear wish to live with his father, the reality is that he will continue to live there regardless of any order made by the Court.  It would be preferable for him to reside with his father than for him to be homeless, which seems to be the only likely alternative given that he has refused the refuge accommodation offered to him by Community Services.  Although Community Services do not accept that it is necessarily in B’s best interests to reside with his father, they would be incapable of forcing B to live elsewhere even if an order were made requiring him to live as directed by the Department.

1. So far as parental responsibility for B is concerned, although the mother seeks to share it with the father and have some input into decisions in B’s life, there is no evidence that the parents have in fact been sharing parental responsibility for B, but rather that B has been making his own decisions.  I cannot be satisfied that the mother will participate in decision-making given her abandonment of responsibility for the children, and given his age and that he will continue to live with his father, it is most appropriate in these circumstances for the father alone to exercise parental responsibility for B until he reaches 18 years of age.

2. As orders will be made for the two younger girls to live as directed by the Department, and having regard to the best interests considerations previously referred to, I am of the view that it is in the two younger children’s best interests for parental responsibility for them to be exercised by the appropriate Departmental delegate.

3. I also find it is in the two younger children’s best interests to continue to receive the benefit of a meaningful relationship with their parents and I am satisfied the orders proposed by the Secretary of Community Services, with one exception, are appropriate in the circumstances of this case.  The only order I decline to make as sought by the Secretary is that the time the children spend with the parents should be subject to their wishes.  This order was opposed by the Independent Children’s Lawyer and I am satisfied that there will be a greater degree of certainty about the maintenance of the relationship between the children and their parents if this order is not made.

4. The orders that I make are those set out at the forefront of these reasons for Judgment.

I certify that the preceding one hundred and eighty-six (186) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 12 June 2014.

Legal Associate:      

Date:    12 June 2014