El Saeid and Masih

[2017] FamCA 422

FAMILY COURT OF AUSTRALIA

EL SAEID & MASIH [2017] FamCA 422

FAMILY LAW – CHILDREN – REVIEW OF SENIOR REGISTRAR’S DECISION – Where the Senior Registrar ordered that the children be recovered from the mother’s care and placed into the father’s care – Where the mother seeks a review of that order – Where there is insufficient evidence to satisfy the Court that the father had been physically violent towards the children – Orders made for changeover to occur at the Family Court in the presence of the family consultants – Orders made that the father continue to spend time with the children in accordance with existing parenting orders.

APPLICANT: Ms El Saeid

RESPONDENT: Mr A Masih

FILE NUMBER: SYC 2986 of 2012

DATE DELIVERED: 16 June 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 14 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Friedlander

SOLICITOR FOR THE APPLICANT: Diamond Conway Lawyers

COUNSEL FOR THE RESPONDENT: Mr Johnston

SOLICITOR FOR THE RESPONDENT: Sharah & Associates Solicitors and Conveyancers

Orders

it is ordered

1. That the children, Q born … 2009 and R born … 2006, spend time with the father from 2.00 pm on Friday 23 June 2017 until 10.00 am on Sunday 25 June 2017.

2. That for the purpose of the implementation of these Orders, the mother deliver the children to the family consultants on level 2 of the Family Court Sydney registry building at 2.00 pm on Friday 23 June 2017.

3. That the father return the children to the mother’s home at the conclusion of his time with them at 10.00 am on Sunday 25 June 2017.

4. That from Wednesday 28 June 2017 the children live with their father in accordance with the Orders made 17 September 2012.

5. That pursuant to section 68L(2) an Independent Children’s Lawyer be appointed on behalf of the children Q born … 2009 and R born … 2006 AND IT IS REQUESTED that the Legal Aid Commission of New South Wales arrange such separate representation.

6. That forthwith upon appointment by the said Legal Aid Commission of New South Wales or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

7. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

8. That upon their appointment, and after filing of an Address for Service, the Independent Children’s Lawyer may inspect and, if permitted, copy all documents previously produced to the Court in the proceedings and released to the parties.

9. That pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2986 of 2012

Ms El Saeid

Applicant

And

Mr A Masih

Respondent

REASONS FOR JUDGMENT

Background

1. Before the Court is an application to review a decision made by Senior Registrar Campbell in relation to the parenting of two children, Q born in 2009 (“Q”) and R born in 2006 (“R”).

2. The children’s parents are Mr A Masih (“the father”) and Ms El Saeid (“the mother”). The mother and father separated in 2012.

3. On 17 September 2012, Orders were made by consent which provided for the children to live with the father from 10.00 am Sunday to 8.00 pm Wednesday in each week, and to live with the mother from 8.00 pm Wednesday to 10.00 am Sunday in each week. The Orders also provided that the parents have equal shared parental responsibility. The children had lived with their parents in accordance with those Orders until 16 April 2017, a period of some four years and seven months.

4. On 16 April 2017 the children did not go to their father as was required by the Orders. On 21 April 2017 the father applied for a recovery order by way of enforcement of the Orders made in 2012. That order was made by the Senior Registrar on 2 June 2017. The recovery order was executed in circumstances which will be further described and the children spent time with their father from 5 June 2017 until 7 June 2017. The children have not spent time with the father since 7 June 2017.

Evidence before the Court

1. The matter comes before the Court by way of an application, filed by the mother, to review the decision of the Senior Registrar to issue the recovery order. The matter therefore proceeds by way of a hearing de novo of the father’s application for a recovery order.

2. These are interim proceedings and where there is a discrepancy between the parents as to the events which have occurred it is not possible to make a determination about which is to be accepted. There is little objective evidence apart from documents produced by the NSW Police to which reference will be made later in these reasons. Because the children’s situation appeared to be settled, there has not been a Child Responsive Conference and therefore there is no evidence from a Family Consultant to assist the Court.

3. There is no evidence that, before 16 April 2017, there had been problems in relation to compliance with the Orders made in 2012.

4. In her affidavit sworn on 7 June 2017, the mother deposed that “time spent with the Father is always problematic.” She deposed that from about three months after she became pregnant following separation, with a child who is not the child of the father, the children had complained to her of derogatory comments made by the father.

5. The material filed by the mother does not disclose when the pregnancy commenced nor does she depose to the birth of a new child. The father deposed in his material that the mother’s child was born in 2016. I assume therefore that the complaints to which the mother refers were from about June 2016.

6. However, the mother does not suggest in her affidavit that the complaints continued to be made by the children after the birth of her child. She deposed that “I also observed that the children appeared to be progressively more reluctant to go with their Father each Sunday.” However, she gives no details of the time, or of the behaviour exhibited by the children which gave rise to her conclusion as to their reluctance.

7. Apart from the children’s complaints in relation to their father’s derogatory comments about the mother’s pregnancy, the mother does not depose to the children making any complaints about their father or his behaviour prior to 16 April 2017.

8. In her affidavit sworn on 7 June 2017 she deposed that on Sunday 16 April 2017 the father arrived to collect the children at approximately 10.00 am. The children told the mother that they did not wish to go with him. The mother deposed that she said to R, “[R], I don’t want any trouble. I know that [the father] will call the Police and the Police will come”. R said words to the effect “Don’t worry, I will talk to the Police. Dad slapped me. Dad always slaps me. Dad always says the F Word to us and I don’t want to go with him.”

9. The father did call the police who attended at the mother’s home. The police spoke to the children. Whilst the mother was not present in the room when the police were speaking to the children, she was in a position to overhear the conversation and it must have been obvious to the police that she was listening to the conversation because they asked her to close the door. The mother deposed that she overheard R telling the police that their father slaps them, hits them and swears at them.

10. The father deposed that after the police officers spoke to the children and the mother they said to him “She will not allow the children to see you. She says that the children don’t want to return to you” and advised him to obtain legal advice.

11. Tendered in the father’s case was a document produced by NSW Police which indicates the action taken on 16 April 2017 as follows “Attended – spoke to [the father], spoke to his wife/kids, all OK. Children did not wish to go with [the father] because he ‘swears too much’. Informed [the father] that kids did not want to go and that he would have to follow up with Family Law court”.

12. Notably, the police did not record in that document that the children had complained that their father had slapped them.

13. The father denies that he has ever slapped the children or either of them.

14. Shortly after 16 April 2017 the mother contacted Centrelink telling them that the father had no care of the children and she had 100 per cent of the responsibility for their care. This action suggests that the mother had formed the view that the children would, from that time on, not spend time with their father or live with him.

15. On Tuesday 25 April 2017, which was a public holiday, the mother telephoned Ms S who is the administration manager at the children’s school, advising that the children were refusing to go to school on 26 April 2017 because they were fearful that their father would go to the school and take them away. Why the children would express such a fear when the Orders in place specified that they live with their mother from 8.00 pm on Wednesday is not explained.

16. On 26 April 2017 the mother took the children to school and asked to speak to the principal.

17. At about 11.00 am on 26 April 2017 the father arrived at the school and was told by one of the children’s teachers that the children did not wish to see him. The father then spoke to the principal and asked to see the children in the presence of the principal. The principal spoke to R and Q together. She asked R if he wanted to see his father. R cried and said he did not wish to see his father. R told the principal that he did not wish to see his father “because my dad hits and swears at me”. The principal told R that she would be with him when he saw his father but R repeated that he did not wish to see his father. The principal then spoke with Q who also said that he did not wish to see his father. Q gave no reasons and made no complaint about his father.

18. The principal then returned to the father and informed him that the children did not wish to see him and that they were distressed. The principal asked the father whether or not he had slapped the children and the father very firmly told the principal that he had not. The notes made by the principal, tendered in evidence, record that the father was polite and co-operative and that he was concerned that the children were missing their extra-curricular activities.

19. On 2 May 2017 the principal spoke to R and asked if he had visited his dad on the previous weekend. R said that he had not. When the principal asked R why he did not see his father, R replied “For the same reason – I don’t want to see him. Just the other day, I had a dream of my dad dragging me to the ground and he had a gun.” R also said “The next morning I was coming to school, I thought he might come and take me.” The principal asked R if he would like to see the father in her presence and R declined, saying “I feel uncomfortable around him.” R said to the principal “He always leaves us alone – for two hours sometimes”. R said that the father leaves them alone at his home and that he did not know where the father goes. The principal asked R if his mother knew that the father had left them alone and R said “We have told mum but she says we have to go. On that Sunday I had enough.” When the principal asked R why, R said “Sunday before that I forgot my … Homework at school, he slapped me, shouted at me and said the f word.” R maintained to the principal that he did not want to spend time with his father, even in the presence of a teacher and the principal. R said “I feel uncomfortable around him … Because of all the things he has done to me.” When the principal asked what things, R said that his father had slapped him with a metal ruler. When queried, R conceded that had happened three years before.

20. Also on 2 May 2017 the principal spoke with Q. When asked why he had not seen his father on the weekend, Q told the principal “He always slaps me for no reason”. Q told the principal “Once he got the bag, my school bag and he threw it on my back.” When asked when that had happened, Q replied “In the holidays”. The principal asked Q why his father had done that and Q said “I was supposed to wash my hands after eating; I was going to but then he just threw the bag at me; he did not say anything; he just threw it at me.” The principal offered Q the opportunity to speak to his father in her presence and Q said he did not wish to do that.

21. On 2 June 2017 the Senior Registrar made an order directed to the police to deliver the children to the father for the purpose of compliance with the Orders of September 2012, noting that the children were due to be in the father’s care on Sunday 4 June 2017.

22. On 4 June 2017 the father attended the mother’s home for the purpose of collecting the children but they did not come to the car. After waiting he contacted the police.

23. A friend of the mother, Ms T, was present at the mother’s home on 4 June 2017. She deposed that the mother prepared the children to leave and took them to the door. The children physically resisted going out of the house. Ms T deposed that R said “I’ll kill myself. I hate my Dad. I will kill myself. I hate my life”. The mother said to R, “[R], you have to go. He’s your Dad”. Ms T does not depose that Q said anything.

24. The mother then left the children outside the door and locked the door. She did not attempt to take them to the father. The children knocked and kicked the glass door and either one or both of them screamed “I don’t want to go Mummy. I hate him. I don’t want to go”. After about 30 minutes, the mother allowed both the children back into the house.

25. A female police officer attended and spoke to the children in their bedroom. The officer offered the children her contact details. Ms T listened to the conversation. She deposed that R said to the police officer “There’s no internet at Dad’s place. I can’t send an email from my iPad and I’m not allowed to use the phone…” Ms T deposed that R also said to the police officer, “I will kill myself if I go there. I hate him, I hate my life.”

26. Ms T does not report Q as saying anything.

27. Ms T deposed that the police officer told the mother that the recovery order would be executed by police the following day.

28. On 5 June 2017 the father provided the police with a sealed copy of the recovery order. The father deposed that he asked the police to execute the recovery order discreetly, and that before executing the order, they should call the mother and ask her to collect the children and bring them to the police station so that nobody from the school would witness the execution of the order.

29. The mother deposed that she received a call from the police at 1.09 pm on 5 June 2017 suggesting that she bring the children to the police station at 4.00 pm so that the recovery order could be executed. She did not give evidence as to her response to this invitation.

30. The father deposed that the police officer concerned told him that he had spoken to the mother but she did not wish to assist with the execution of the order and therefore it would be necessary for the order to be executed at the school. The police spoke with the principal who arranged for the children to stay after everyone else had gone home so that they could be collected discreetly.

31. The children were collected by the police and placed in the care of the father.

32. The father deposed that while the children initially seemed reluctant to come with him, they settled after about half an hour. The father deposed that after leaving the school, he and the two boys went to the home of a friend, Mr U, who is the father of the best friends of R and Q. They stayed at Mr U’s home until about 6.30 pm and dined with the U family and some of their friends to celebrate the breaking of the religious fast. They then went to the father’s home to change and re-joined the U family at the religious centre for prayers. After prayers, they went to a restaurant for dessert and returned home at about 9.45 pm and went to bed. The father deposed that although things were not completely comfortable for the first part of the short drive to Mr U’s home, the children relaxed quite quickly. He deposed that during the evening R said to him “I missed you Daddy”. The father deposed that R said “I don’t want ever to not see you Dad”, and that he was sorry he said his father had slapped his face and he asked his father if he could start taking them to karate and soccer again. The father deposed that both boys hugged and kissed him. During the visit the father took the children to the police station to speak to the police officer who had executed the warrant.

33. On 6 June 2017 the father took the children to school in the morning and collected them after school. When he arrived to collect them in the afternoon they ran to him and seemed enthusiastic and pleased to see him. The father took the children to school again on the morning of 7 June 2017 and he deposed that Q said to him “I can’t wait to celebrate my birthday …; what are you going to get me as a present?” The father concluded that things had returned to normal with the children.

34. Mr U swore an affidavit on 7 June 2017 in which he deposed to his observation of the children on the afternoon of 5 June 2017. Mr U observed the father and R together, he deposed that they spoke animatedly, laughed often, that they touched each other frequently and they both appeared comfortable in each other’s company. Mr U observed the father and R hugging, high fiving and handshaking and generally enjoying their time together. Mr U also observed the father and Q together. He deposed that he saw them chatting, smiling and laughing together and saw them hugging and shaking hands.

35. Mr U deposed that when the father and the two boys left his home after dinner he observed the three of them walk to the car hand-in-hand, with one of the boys on each side of the father.

36. Mr U again observed the boys with their father at the mosque on 6 June 2017. He deposed that R said to the father “we’ll see you again at the [religious centre] next Sunday and we can come over to your place for cake or something afterwards to celebrate ….”

37. The children have not in fact spent any time with their father since 7 June 2017.

38. The evidence relied upon in these proceedings of the mother gives no explanation for the children’s failure to spend time with their father after they were returned to their mother on 7 June 2017.

39. On 9 June 2017, the mother’s solicitor wrote to the father’s solicitor stating, inter alia, “In any event, considering our instructions that your client has been arrested during the past 24 hours, is it his intention to collect the children on Sunday morning?” The father had not been arrested and there is no evidence that there were any charges brought against him.

Determination

1. The father seeks a continuation of the arrangement which was put into place by the Orders made in 2012. The mother’s applications variously filed in the proceedings sought firstly to reduce the time the children spend with the father, and then to suspend the Orders of 2012 altogether. In a response filed by the mother on 23 May 2017, she sought a reduction in the time the children spent with their father to take place for two hours in a public place on the fourth Sunday of each month. In an application filed on 2 June 2017, she sought an order that the children spend no time with the father and before me, by way of a case outline document, she sought an order that the children spend no time with the father pending further order and an order that the parties “do all things necessary on their respective behalves to arrange for and attend upon Child Inclusive Counselling with an expert nominated by the Independent Children’s Lawyer, such counselling to be initially at the expense of the husband.”

1. The position of the parents is clear. The father wishes to have the orders reinstated. The mother does not wish the children to spend any time with their father pending further order.

2. The Court is not bound by the respective application of the parties.

3. The issue to be determined therefore is whether the children’s time with the father should be reinstated in accordance with the Orders made in 2012, reinstated in some other form, or not reinstated at all. If the arrangements are to be re-instated, the Court must determine whether a recovery order should be made to ensure that the children go with their father in accordance with the orders.

4. Before me, each of the parents, through counsel, acknowledged the benefit to the children of having a meaningful relationship with both of their parents.

5. It was submitted, on behalf of the mother, that the Court should give priority to the need to protect the children from physical or psychological harm, or being subjected to abuse, neglect or family violence over the benefit of having a meaningful relationship with both of their parents. There is no doubt that that submission accords with the law. However, the evidence that the children have been in any way abused by the father is less than clear. R first raised the suggestion that the father had hit him with his mother on 16 April 2017. There is no indication in the records produced by the school that R or Q had made any complaint about the father before that date. The complaint was not recorded in the documents which were produced by the NSW Police and tendered in evidence before me. The father deposed that R apologised to him for having said that the father slapped him. I do not accept that it has been established for the purpose of these proceedings that either R or Q has been subjected to physical violence from their father.

6. Whilst there is evidence of the children’s views up to and including the weekend commencing on 5 June 2017, there is no evidence of their views prior to 16 April 2017 or after 7 June 2017. I accept that the children between 16 April 2017 and 4 June 2017 expressed a view that they did not wish to spend time with their father, but it is not possible to know why that view was expressed or what might have prompted the children’s apparent change in attitude. Neither is it possible to know what the children’s current attitudes towards their father are. It is, however, the fact that since 17 September 2012 and until 16 April 2017 the children have spent half of each week with their father in accordance with the consent orders made in September 2012.

7. There is little evidence to assist the Court in determining the nature of the relationship of the children with each of their parents. There is no dispute that the children love and are very attached to their mother. It would appear that at least before 16 April 2017 they had a loving relationship with their father, and as far as the father and Mr U observed, that relationship resumed from 5 June 2017.

8. The evidence suggests that the parents have been able to cooperatively parent their children since September 2017.

9. The change in circumstances which is proposed by the mother, being the suspension of the children’s time with their father, is likely to exacerbate the very recent estrangement between the children and their father.

10. Nothing in the evidence before me suggests that the children’s refusal to see their father from 16 April 2017 until 4 June 2017 was based on longstanding difficulties in their relationship with one another, or that the complaints which were made by the children in the manner which has been detailed justify any suspension of the relationship.

11. This is not a matter where the intervention of the police is likely to be of assistance. The children might be assisted by appropriate expert intervention to ensure a smooth transition to the father’s care on the first occasion of re‑introduction and such assistance can be provided by a Family Consultant of the Family Court. The orders will provide for the handover on the first occasion when the children see their father to be facilitated by the Family Consultants in the Sydney Registry of the Family Court.

12. Due to the logistics of the availability of the Family Consultants, the orders will provide for the first weekend, which will commence on Friday 23 June 2017, to be facilitated in the Sydney registry of the Family Court and for the mother to bring the children to the Court at 2.00 pm on that day. Thereafter the children will spend time with their father and be returned to the mother’s home at 10.00 am on Sunday. Commencing on Wednesday 28 June 2017, the children will live with their father in accordance with the Orders of 17 September 2012.

APPOINTMENT OF AN INDEPENDENT CHILDREN’S LAWYER

1. The mother has been agitating for some time for the appointment of an Independent Children’s Lawyer (“ICL”). Until the hearing of this matter before me, that application has been opposed by the father. Before me, counsel for the father indicated that he did not oppose the appointment of an ICL. Having regard to the age of these children and what would appear to me to be escalating proceedings between the parents, I am of the view that the appointment of an ICL may assist in some more objective consideration of the issues and can only be in the children’s interests.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 16 June 2017.

Associate:

Date:   16/6/2017