EHSAN and MEYSAM

[2017] FCWA 147

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: EHSAN and MEYSAM [2017] FCWA 147

CORAM: DUNCANSON J

HEARD: 30 OCTOBER 2017

DELIVERED : 1 NOVEMBER 2017

FILE NO/S: PTW 2560 of 2014

BETWEEN: MR EHSAN

Applicant

AND

MS MEYSAM
Respondent

Catchwords:

CHILDREN - Where father refuses to spend time with child if her carer is present - Where orders are made that child spend time with father in accordance with her wishes - Child to live with mother who has sole parental responsibility for her

Legislation:

Family Law Act 1975 (Cth) s 60CA, s 60CC, s 68Q

Category: Reportable

Representation:

Counsel:

Applicant: Self-Represented Litigant

Respondent: Ms A Pepper

Independent Children's Lawyer : Mr W Dawkins

Solicitors:

Applicant: Self-Represented Litigant

Respondent: Pepper Legal

Independent Children's Lawyer : Wayne Dawkins Lawyers

Case(s) referred to in judgment(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[The child] is the daughter of [Mr Ehsan], the father and [Ms Meysam], the mother. In 2010 when the child was seven years of age, she and her parents were involved in [an] accident in which the child sustained a [severe injury]. She required hospitalisation for eight months. As a consequence of the accident she has significant physical disabilities and some cognitive limitations.

2The mother and the father separated in February 2014. The child lived with the mother and spent time with the father.

3It is not in dispute that the child will continue to live with the mother, or that the mother will have sole parental responsibility for her.

4It is also not in dispute that the child should continue to spend time with the father. What cannot be agreed is whether the child's carer should be present when she does so.

5The child loves her father very much and enjoys spending time with him, but she wants her carer present to assist her with her personal needs. The father is adamant he can care for the child adequately. He says, if necessary, he will have the assistance of his new wife, when she moves to Australia from [the Middle East]

6In evidence the father made it abundantly clear that if the court orders that the child's carer should be present when she spends time with him, he will not see her. He could not be persuaded otherwise.

BACKGROUND AND BRIEF HISTORY

7The father was born [in] 1970 in the Middle East. He is 47 years of age. The father is an [architect], currently unemployed.

8The mother was born [in] 1978 also in the Middle East. She is 39 years of age. She is a full-time homemaker and the child's carer. The parties were married in the Middle East in 1999.

9The child was born [in] 2002. She is almost 15 years of age.

10In 2006 the family migrated to Australia and in 2010 they moved to Perth where the father obtained employment.

11Shortly after moving to Perth [in] 2010 the family was involved in [an] accident. The Child had to be rescued.

12The child suffered a severe injury in the accident. The accident had a significant impact on the lives of all family members. The child required extensive rehabilitation and care.

13In October 2012 the father behaved in a sexually inappropriate manner towards the child's carer.

14The parties separated in October 2012 for about a year. During that time the mother was granted an interim Violence Restraining Order ("VRO") which was made final in May 2013. The parties subsequently reconciled.

15The parties separated again in 2014. A further VRO was granted on 29 April 2014. The father breached that VRO on several occasions.

16After her parents separated the child spent time with the father supervised by an independent agency and thereafter with a carer present.

17The father commenced these proceedings in May 2014.

18Mr Dawkins was appointed as independent children's lawyer.

19Dr Melanie Newton was appointed single expert witness and provided a report dated 17 June 2015.

20The parties were divorced [in] 2016.

21In 2016 by arrangement, the father married [a woman, from the Middle East] who has a five year old son. She is awaiting a visa to join him in Australia which the father expects to occur in December 2017.

22In June 2016 the father, who was studying [massage therapy], massaged the child's shoulders when she was unclothed. The Department for Child Protection and Family Support ("DCPFS") implemented a Safety Plan.

23 For various periods of time in 2016 and 2017 the father "suspended" the child's time with him and he returned to the Middle East.

24On 11 January 2017 Cris de Rooster, Psychologist was appointed single expert witness. He provided a report dated 3 July 2017.

25On 8 March 2017 the child was diagnosed with depression.

26Between May and June 2017 the child travelled to the Middle East with the mother.

27In July 2017 the father again suspended the child's time with him and he travelled to the Middle East.

THE TRIAL

28The father was a self-represented litigant. I explained the trial procedure to him. At the commencement of the trial he informed me that he had questions for the mother but he did not wish to cross-examine any of her witnesses or either of the single expert witnesses. The father relied on his affidavit sworn 12 December 2016 and was given an opportunity to update his evidence.

29The mother was represented by counsel. She relied on her affidavits filed 14 October 2016 and 24 October 2017. She also relied upon the affidavits of [Mr H], Paediatric Physiotherapist, [Ms C], Clinical Psychologist and [Dr R], Consultant Psychiatrist all filed 24 October 2017.

30Mr Dawkins relied on the affidavits of Dr Newton filed 9 July 2015 and Mr de Rooster filed 5 July 2017. Neither expert witness was required for cross‑examination by either party.

31The father left the court room towards the end of the proceedings, but before they were concluded.

THE FATHER'S POSITION

32The father's position is that he wishes the child to spend time with him, but he will not see her in the presence of a carer. He is of the view that it is not necessary for her to have a carer with her as he can provide the care she needs. The father has recently married and is waiting for his [new] wife to obtain a visa to enter Australia with her young son. The father proposes that in the event that the child needs assistance with her personal care, his wife would be able to provide that assistance. The father's wife is not known to the child and she does not want to see her, although the father blames the mother for this, saying she has influenced the child.

33The father firmly believes that the child's need for a carer to be present is a problem which the mother has created for her. He says the mother has said negative things about him which makes the child feel unsafe. He wishes to reduce her dependency upon carers who he says follow him around the house, but otherwise do nothing.

34The father says he will not have a person accompanying the child to his home to watch him. There were no circumstances in which he would accept a carer being present, even though that is the child's wish.

35In relation to massaging the child, the father said he did not cross boundaries. He wanted to help the child and did not touch her inappropriately. He was horrified by the suggestion that he would touch his disabled daughter sexually and he blamed the mother for accusing him of doing so.

36The father acknowledged that the child loves him and wants to spend time with him. He acknowledged she will suffer if she does not do so, but he maintained he will not see her in the presence of a carer or with supervision.

37The father blames the mother for causing the child to become nervous and stressed when her carer is not with her and he believes, notwithstanding her injuries, her dependency on carers is not "natural". He said the mother has ruined the child's life and his own.

38Despite considerable efforts by Mr Dawkins in cross-examination to persuade the father to change his mind, he would not do so.

THE MOTHER'S POSITION

39The mother proposes that the child spend time with the father. That time should take place in the presence of a carer who should be properly instructed as to the role of supervisor. The mother explained that although she does not require the father to be supervised, by reason of his inappropriate behaviour towards a previous carer, carers in the future should receive instruction to enable them to deal with the father's behaviour.

40The mother proposes electronic communication. She seeks a non-denigration order and orders that the father be restrained from removing the child from school, or from her care.

41The mother explained that she understands that the presence of the carer makes the father feel uncomfortable, but said the child wants the reassurance of a carer present. Carers are present at her home and are there to assist the child. She said the carer can also be a go between as the child knows and trusts her carers.

42The child wants a Persian speaking carer to accompany her because when she gets tired she lapses from English into Persian.

43The mother explained that the child had witnessed incidents of family violence in which the police were involved. She gradually became anxious and her anxiety was caused by the father's behaviour. She fears the father might be aggressive to her like he was to the mother. The child also became anxious about her own personal care and toileting.

44The mother said the child wants consistency in her relationship with the father. She is confused as to whether he loves her. She is likely to reduce her communication with him and has asked what the point of it is when she does not see him.

45The mother deposes she has encouraged the child to have a relationship with the father, but his inconsistency affects her mood.

46She deposes the father has failed to provide the child with certainty around her time with him causing the child significant anxiety.

THE LAW

47These proceedings are determined under Part VII of the Family Law Act 1975 (Cth) ("the Act"). In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects.

48The 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.

49In deciding whether to make a particular parenting order, s 60CA directs me to regard the best interests of the child as the paramount consideration. Section 60CC sets out how I determine what is in a child's best interests. I must consider the primary and additional considerations.

50Section 60CC(2) sets out the primary considerations which are the benefit to the child of having a meaningful relationship with both the child's parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

51Section 60CC(2A) provides that in applying the above considerations, the court is to give greater weight to the need to protect the child from harm.

THE PRIMARY CONSIDERATIONS

52The child has a meaningful relationship with the mother and it is to her benefit that it continues. If the father is prepared to commit to a relationship with the child it will be to her benefit to have a meaningful relationship with him.

53Mr de Rooster reported that the child is not at risk of harm in the care of either party. The child has been exposed to family violence in the past, but that is unlikely to occur between her parents in the future. The mother expressed concern that there may be family violence between the father and his new wife.

54Notwithstanding the incident in which the father massaged the child, she is not at risk of sexual harm in the care of her father. In relation to the incident, the father said he wanted to help her and did not touch her inappropriately. In hindsight he realised it would be more professional that she be clothed. I accept his evidence that on that occasion he did not "cross boundaries".

55The mother was concerned about the child being at risk of neglect in the care of the father with respect to her medication. He believes that if the child was in his care she would not be depressed. He said it is up to the doctor to decide if she requires medication, although he questioned the need for antidepressants and blamed the mother for her condition.

THE ADDITIONAL CONSIDERATIONS

56Mr de Rooster reported that the child wants to live with the mother and spend regular time with the father. She is not ready to meet the father's wife. The child wants her Persian carer to be present when she spends time with the father. The reasons she gave to Mr de Rooster for that are:

•she feels as a young woman she has some personal and practical needs of a personal nature that the carer can help her with;

•the Persian carer understands the father and her language and culture; and

•she would like to have consistent routine to spend regular time with the father and not a stop, start contact pattern.

57Ms C, the child's psychologist reported that the child's physical disability requires adjustments to her environment and she requires assistance with most activities of her daily living. Ms C stated:

As a young woman, it is [the child's] expressed wish to me that this be provided when necessary, by a female carer trained in her needs.

58The child's views were put to the father. He said he would do anything to make his daughter happy, but he would not have a carer present when she spends time with him.

59The child's views are clear. She wants to see her father, but she wants a carer present. Having regard to her age, her physical difficulties and her needs, her wishes are understandable. I do not accept the father's assertion that the reason why she wants a carer is because she has been influenced by the mother.

60The child has a close and loving relationship with both of her parents.

61The mother has made decisions about major long-term issues in relation to the child who has lived with her since separation. The child has spent time and communicated with the father. At times the father has withdrawn from her and "suspended" her time with him.

62It is not in dispute that the child will continue to live with the mother. Any separation from the mother is likely to have a detrimental effect upon her. A separation from the father is also likely to have an impact upon her. Mr de Rooster reported that it is not now the parental dispute impacting upon the child, but she is impacted by the father not consistently spending time with her on a regular basis. This has upset the child who has become distressed with a low mood.

63The mother is capable of providing for the child's needs on all levels. The father does not provide well for her emotional needs. He shows a lack of insight into those needs when he refuses to permit a carer to be present when the child spends time with him. The father's stated intention to withdraw from her life altogether is distressing for her.

64Mr de Rooster reported that the father does not manage to meet the child's developing psychological and emotional needs adequately, which affects her both emotionally and psychologically.

65The child is of [Middle Eastern] background and her first language is Persian. She participates in the Special Education Program at [School A].

66Dr R reports that the child's diagnoses are:

Adjustment Disorder with mixed depression and anxiety, relapse

Mental Disorder due to [her severe injury] (obsessive and anxious traits).

67The child is medicated for her conditions.

68The mother has demonstrated an appropriate attitude towards the child and the responsibilities of parenthood. She recognises that the child loves the father and she will promote their relationship.

69Mr de Rooster reported that the father is "still saddled with frustration, hostility and anger towards the mother". He will not promote a positive relationship between the child and the mother.

70There has been family violence between the parties to which the child was exposed. The family violence was substantiated by the DCPFS in their assessment dated 23 September 2014.

71There is currently a family violence order in effect protecting the mother and the child.

72It would be preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the child.

73Sadly, since the child suffered a very serious injury her care has not been without conflict between her parents. She wants a relationship with the father.

74On 24 September 2017 the child sent an email to the father headed "How much you hurt me, DAD!!!".

75The child wrote:

Hi dad,

I am writing this email with tears in my eyes to explain to you how much your words, behaviours and actions affect me because I am getting really, really, really, emotional with the way you have been reacting with me and my life during the past few years!!!!!! My only wish is for you and mum to sit down together and both say "SORRY" to each other for the upsetting behaviours in the past!!!! Because it really does ruin my day when I think about it. It hurts when you think that it's ALL my mum's fault?? I get confused when you say "I LOVE YOU" but on the other hand you escape to [the Middle East] every few months to get out of boredom and leave me alone. WHAT KIND OF LOVE IS THIS????

[The child]

(Errors as original).

76The next day the father replied as follows:

Salaam zendegim,

[Child] azizam sorry for leaving you alone in Australia, and I really undrestand how difficult and sad is when I leave you alone. if your mother was agreed that we visit eachother I was not leaving you and was not traveling to [the Middle East], but she did not agreed for visits to be done. As I have said before, I am not interested and will never visit you with any supervisor or carer, and the ONLY person insisting for carer to be with us during the visits is your mother.

My dearest [child] I will not visit you with carer any longer and you only can come to my place without any carer, the carer can bring you to my place and come back to pick you up at the end of each visit. This is what I have asked and your mother did not agreed, and that is why I left Australia as I was not able to visit you.

When you get older I will explain for you what I have done and what your mother has done to your life.

I will return to Perth very soon and we can have visits ONLY without any carer. You can solve the carer's matter and then we can have visits and enjoy the time that we are together.

I invited your mother for negotiation about you, for two times last year but your mother did not negotiate and in the meeting she was siting like a statue solid, rigid and not negotiable at each meeting. I WILL SAY SORRY TO YOU 100 TIMES, BUT WILL NEVER SAY SORRY TO YOUR MOTHER, AS SHE RUINED YOUR LIFE AND MY LIFE. I am sorry [Child] that I caused you get sad and upset and tears come to your eyes but even if I was in Perth we could not visit each other as I do not agree to see you with any carer to be with you, and your mother does not agree to remove the carers. Therefore we can not have any visit even if I am in Perth, unless your mother remove the carers, while you are with me. YOU DO NOT NEED ANY CARER WHEN YOU ARE WITH ME.

[Father]

(Errors as original).

77The father is not prepared to commit to a relationship with the child without imposing a condition which is completely contrary to her wishes and needs. The father's refusal to accept a Persian carer being present during the child's time with him will mean it is unlikely she will spend time with him. Her relationship with him will therefore be damaged. This is a situation entirely of the father's making and one which he has the ability to resolve. He chooses not to do so. It is a selfish and unfeeling decision that he makes.

CONCLUSIONS

78Having considered the evidence in the context of the primary and additional considerations, I have come to the following conclusions.

Parental responsibility

79There has been family violence between the parties. The presumption that it is in the child's best interests for her parents to have equal shared parental responsibility for her does not apply. It is not in dispute that the child will live with the mother. The mother should have parental responsibility for her. She is well placed to make long-term decisions for the child.

80The father should be informed of any decisions to be made and this can be done through the child's case worker.

The child's living and spend time arrangements

81The child will live with the mother.

82The child will spend time with her father as proposed by the mother each Saturday between 2.30 pm and 5.30 pm. The child's time with the father will take place in the presence of a carer fluent in the Persian language for as long as the child may wish this to occur.

83These spend time orders leave the door open for the father to reconsider his position and accept the child's wishes. That is an outcome which would be to the child's benefit.

84I shall order that any carer accompanying the child be trained in the role of contact supervisor. This is a precaution to ensure that the carer is able to manage the father's behaviour having regard to his inappropriate conduct towards a carer in the past.

85I shall make the other orders sought by the mother, all of which are appropriate and are in the child's best interests.

THE ORDERS

1All previous parenting orders be discharged.

2The child, born [in] 2002 live with the mother, [Ms Meysam].

3The mother have sole parental responsibility for the child.

4The child spend time with the father as follows:

(a)each Saturday between 2.30 pm and 5.30 pm; and

(b)otherwise as agreed between the parties in writing and in accordance with the child’s wishes.

5The time the child spends with the father is to take place in the presence of the child’s carer for as long as the child requires the carer present or the mother deems it appropriate.

6The carer shall deliver the child the child to the father’s home at the commencement of the time and to the mother’s home at the conclusion of the time.

7Any carer present during the child's time with the father is to be instructed in the role of contact supervisor by Perth Children's Contact Service, or the child's case manager, or such other case manager or supervision agency as may be in place from time to time and nominated by the mother.

8The time the child spend with the father be suspended for reasonable periods of time due to vacation, illness or the child's fitness to attend as reasonably determined by the mother.

9The child communicate with the father by telephone, Skype or other electronic means in accordance with the child's wishes and initiated by her.

10The parties be restrained and an injunction is hereby granted restraining the parties from denigrating the other parent, or the carer in the presence or hearing of the child, or encouraging or allowing any other person to do so.

11The father be restrained and injunction is hereby granted restraining the father from:

(a) removing the child from any education facility attended by her;

(b) removing the child from the mother's care; and

(c)removing the child from the Commonwealth of Australia.

12These are orders to which section 68Q of the Family Law Act 1975 (Cth) applies and to the extent that these orders are inconsistent with the Family Violence Order made in the case between the parties on 15 February 2016 in the Magistrates Court at Perth being Complaint number [XXXXX XXXXX ], the aforesaid parenting orders shall prevail and the Family Violence Order is invalid to the extent of the inconsistency.

13The Deputy Registrar, Magistrates Court, 150 Terrace Road Perth cause a sealed copy of this order to be forwarded to the Commissioner of Police, the Deputy Registrar, Magistrates Court at Perth and the Chief Executive Officer of the Department of Communities.

14The Independent Children's Lawyer be discharged.

15The proceedings otherwise be dismissed.

16All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.

17On the expiration of 42 days from this order, all material tendered as an exhibit into evidence (save and except for material produced pursuant to subpoena) be destroyed by the court without further notice to the parties.

18In the event of an appeal being lodged prior to the expiration period of 42 days, orders 16 and 17 above do not apply.

I certify that the preceding [85] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate