EMAMI & ISHMAL

[2013] FamCA 735

FAMILY COURT OF AUSTRALIA

EMAMI & ISHMAL [2013] FamCA 735

FAMILY LAW – CHILDREN – Best interests of the children – Family violence – Where the father has been convicted of assaults upon the mother and breaching Apprehended Violence Orders for the mother’s protection – Where there are other allegations of family violence – Where the children have expressed a view that they do not wish to spend time with the father – Where it is alleged that the mother has a mental health illness – Where it is alleged the children’s views have been influenced by the mother or other persons.

McCall & Clark [2009] FamCAFC 92

Births, Deaths and Marriages Registration Act 1995 (NSW)
Family Law Act 1975 (Cth)

APPLICANT: Mr Emami

RESPONDENT: Ms Ishmal

INDEPENDENT CHILDREN’S LAWYER: Ms Truong

FILE NUMBER: PAC 5549 of 2011

DATE DELIVERED: 26 September 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 4 - 6 September 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented Litigant

COUNSEL FOR THE RESPONDENT: Mr Lee

SOLICITOR FOR THE RESPONDENT: Ms Kaiti of CBD Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Truong of Legal Aid NSW

Orders

1. All previous parenting Orders in respect of the children A born … 2001, R born … 2003 and Y born … 2006 (“the children”) are discharged.

2. The mother is to have sole parental responsibility for the children.

3. The children are to live with the mother.

4. The father is to spend no time with the children, nor communicate with them.

5. The names of the children A (a male) born … 2001, R (a female) born … 2003 and Y (a female) born …2006 are to be removed from the Airport Watch List, and it is requested that the Australian Federal Police give effect to this Order.

6. The mother is permitted to change the last name of each of the children to Ishmal.

7. The father is restrained from:-

   (a)Contacting or communicating with the mother, her husband or any of the children;

   (b)Approaching:

   (i)The mother, her husband or any of the children;

   (ii)The mother and the children’s place of residence;

   (iii)The school attended by any of the children;

   (iv)The venue of any extracurricular activity in which the mother or any of the children are involved.

8. The above Order be made pursuant to section 68B of the Family Law Act 1975 (Cth) for the personal protection of the mother and each of the children, to which the power to arrest without warrant under section 68 of the Act applies.

9. Leave is granted for a copy of the Family Report dated 8 August 2012 to be provided to any counselling service that the mother or the children, or any of them, may attend upon from time to time.

10. All outstanding applications and cross-applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Emami & Ishmal 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 5549 of 2011

Mr Emami

Applicant

And

Ms Ishmal

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction & Background

1. A, who is 12, and his sisters R, who is 10, and Y, who is seven, are the children of Mr Emami (“the father”) and Ms Ishmal (“the mother”).  The parents who were married in December 1999, divorced in July 2009 and have both since remarried.  Since separation, the children have lived with their mother and have not seen their father since at least the beginning of 2011.

2. In November 2011, the father filed an application asking the Court to make an order that the children spend time with him.  That application has been amended and the father now seeks orders that he have sole parental responsibility for the children, that they live with him and that they spend no time with their mother.  Although the father has not filed an Amended Application seeking these orders, he indicated at the start of the hearing that they were the orders he sought and there was no objection from the other parties to proceeding on that basis.

3. The mother asks the Court to order that she have sole parental responsibility for the children, that they live with her and that they spend no time with their father.

4. The father relies upon his two affidavits filed 25 November 2011 and 12 March 2012 respectively.

5. The mother relies upon her Amended Response filed 20 August 2013 and a consolidated affidavit of herself filed in Court on 5 September 2013.  Further, she relies upon a Notice of Child Abuse or Family Violence filed 22 December 2011 and an affidavit of her husband filed 29 July 2013.

Matters that are not in dispute

1. The parents were married in a Middle Eastern country in December 1999 and started living together in Australia as a married couple in 2000.  In 2001, A, the eldest child, was born.  In 2003, the couple’s first daughter, R, was born. 

2. In June 2004, the father was convicted of Assault Occasioning Actual Bodily Harm of the mother in that month, for which he was fined.  An Apprehended Violence Order for the protection of the mother for a period of 12 months was also made on 29 June 2004. 

3. In 2006, the couple’s youngest child, a daughter Y, was born. 

4. In November 2006, the father was charged with assaulting the mother, occasioning her actual bodily harm, and was convicted of this offence in December 2006.  He was sentenced to eight months imprisonment with a non-parole period of six months, and the eight month sentence was suspended upon him complying with certain conditions. 

5. The facts upon which the father was sentenced (Exhibit 2) indicate that during an argument at the family home, he threatened the mother with a knife with a 20 cm blade, and then stabbed her in the shin causing a deep wound.  The mother was taken to the emergency department at the hospital, where she received medical attention.  The children were at home during the assault.

6. On 1 December 2006, when the father was convicted, a further Apprehended Violence Order was also made for 12 months, protecting the mother.

7. In 2008, the parents separated and from about May, the mother and children lived in a refuge for three months.

8. On 3 June 2008, a further Apprehended Violence Order was made for two years for the protection of the mother. 

9. Parenting Orders were made by consent in May 2009, providing that the parents have joint parental responsibility for the children, that the children live with the mother and spend time with their father each Saturday from 11.00 am to 6.00 pm. 

10. The parties divorced in July 2009 and the mother remarried in 2009.  The mother and children travelled overseas from November 2009 to March 2010. 

11. The children spent time with their father on some Saturdays between May 2009 and August 2010.  The father went overseas from August to December 2010. 

12. In January 2011, the father was charged with an Assault Occasioning Actual Bodily Harm on the mother and an interim Apprehended Violence Order was made against the father for the protection of the mother. 

13. In May 2011, the father was charged with breaching the interim Apprehended Violence Order and the Order was made as a Final Order on 29 September 2011 for a period of two years. 

14. In November 2011, the father was convicted for the assault on the mother in January 2011 and for breaching the Apprehended Violence Order in May 2011.  The child A gave evidence in these proceedings.  The father was sentenced to a 12 month term of imprisonment, which was suspended for 12 months upon him complying with conditions including participating in drug and alcohol rehabilitation. 

15. The father commenced these proceedings in the Federal Magistrates Court, as it then was, on 25 November 2011, two days after he was sentenced.  The matter was transferred to the Family Court in September 2012. 

16. On 27 September 2012, the day the matter was listed in the Family Court, the father was arrested and charged with breaching the Apprehended Violence Order in relation to an incident which occurred at the Court.  He remained in custody, refused bail, from that date and was sentenced on 5 November 2012 to 85 days in prison commencing on 27 September 2012.  On 21 December 2012, the sentence for the January 2011 assault, which had been suspended, was called up as the further offence breached the suspended sentence bond.  In relation to the January 2011 assault, the father was sentenced to a term of imprisonment of 12 months, backdated to 27 September 2012, with a non-parole period of 85 days concluding on 20 December 2012.  When he was released in December 2012, the father was subject to supervision and remains on parole until 26 September 2013.

17. In mid-2013, the mother gave birth to her child with her current husband.

18. The children currently bear a surname of neither of the parents.  The children’s surname is that of their father before he subsequently changed his name.  The father has not taken steps to date to change his name back to that which the children bear.

Family Consultant’s Evidence

1. A Family Consultant produced a report of her assessment of each of the children and the parents.  The Consultant’s overall recommendation was that the children would likely be at risk of physical and psychological harm if they were to spend time with the father.  She further recommended that the mother have sole parental responsibility for the children, that the children spend no time with the father and that the father be restrained from approaching the children’s school or any organisation or institution that the children attend. 

2. The Family Consultant’s views were based upon observations and interviews with the parents and children, the affidavits filed and subpoenaed documents.  She said that whilst the father presented as eager to resume a relationship with his children, he failed to take any responsibility for any of the matters of serious violence perpetrated by him and asserted that even in relation to the matters of which he was convicted, that he was found guilty because the mother had lied to the Court and had been believed by the Court.  She said that based on the father’s presentation in the assessment, it appeared that he had not taken on responsibility for his violent actions, nor recognised the damage that he had wrought on the children.  She said that any change in his behaviour would need to begin with an admission that the previous behaviour was wrong and that even if the father were to complete a course in relation to taking responsibility for domestic violence, given the trauma the children had experienced, it would be unlikely to be in their best interest to spend time with him because such time may trigger anxiety in them.

3. The Family Consultant noted that the mother was concerned that the violence against her was also extremely distressing for the children who were present when the father stabbed her with a knife in the leg and had spent that day between the police station and the hospital.  The mother told the Family Consultant that she finally left the father and went to a women’s refuge when the father started to hit the eldest child A, when A started to intervene to defend her.  The mother also told the Family Consultant that she was concerned because A had started to shout at and hit his sisters.  The mother described a high degree of anxiety in A, who the mother said had slept in her bed until recently due to his anxiety about the father, and feared reprisals from his father as a result of giving evidence against his father in relation to the assault.

4. The mother said that the children had received counselling by a domestic violence service and were now settled and doing well at school, and that the child R particularly appeared relieved when she had stopped seeing her father. 

5. When interviewed by the Family Consultant, none of the children appeared to recall a pleasant time that they had had with their father.  The child A said of the father “I hate him” for what the father had done to himself, his siblings and his mother.  A recalled being hit by his father with a shoe or piece of hose and said he used to beg his father to stop hitting his mother.  He recalled his mother taking them to a refuge when his father had “kicked them out” and that he used to have nightmares about his father, but now rarely did. 

6. The child A said that after his parents separated, the children initially saw their father every two to three days, which then reduced to one day a week.  A said when the children saw the father, there was only alcohol in the refrigerator, his father did not play with them and did not supervise them.  A reported an incident when Y nearly drank from a bottle of flammable liquid in the garage and that he had stopped her in time.

7. The child R said she was afraid of the father because he used to hit her mother and her, and her mother had tried to protect her from her father.  R reported her father was not helpful and perceived that her father did not like the children because he did not play with them or do things with them.  R said she did not want to see her father.  She recalled that when she did visit her father he had not fed them, used to drink alcohol and smoke cigarettes with his friends which aggravated her asthma.  She said that he also offered her money to run away from her mother.  R said she would feel sad if she was left alone with her father and also told the Family Consultant that the last time she saw her father, he had called her to his bed and had pulled her to him and had tried to kiss her.  She exclaimed “(he) had bad breath… and he wasn’t wearing any clothes and it was disgusting”.

8. When the child Y was asked about her father, she referred to him as “mean Dad”, said “(he) never played with us” and “I don’t think about him, he was never kind to me”. 

9. The Family Consultant assessed the children’s views as authentic because their words and demeanour matched their age and stage of development.  She also said that each reported some similar but different aspects of the same situation. 

10. Under cross-examination, the Family Consultant remained firm in respect of her assessment.  The consultant did not feel that A was repeating a rehearsed speech and said he was quite emotional when he said that he hated his father, and she assessed it was something he felt.  The consultant’s view that the children’s statements were a true indication of their views was also confirmed in her view by the result of them participating in a sentence completion exercise prior to the interview.  For example, when asked to complete the sentence “I wish that my father…” A wrote “would leave us alone”.

11. In relation to the recounting of the sexual advance by her father, the Family Consultant felt that R had not been coached.  She felt that the comment R made that her father had bad breath and that him not wearing any clothes was “disgusting” indicated a nine year olds understanding about modesty and made the consultant feel that R was telling it from her point of view.

12. When the Family Consultant was asked about the impact upon the children of an order that they live with their father and not spend any time with their mother, she said that she thought  it would be quite traumatic and expected that they would be distressed and distraught.  The Family Consultant felt that the children would have difficulties adjusting, would be fearful of what would happen to them, would feel anxious about their mother, would experience a loss of confidence, their school performance would deteriorate and she suspected there would be behavioural problems that would be difficult for the father to deal with. 

13. The Family Consultant said that if the father’s application were successful, this would result in the long term in a loss of trust and confidence in the children and they possibly could become depressed, aggressive and defiant.  The Family Consultant was also of the view that the child R would probably be hyper-vigilant and would have a loss of self-esteem.  She was also concerned about the impact on the children of the loss of the attachment relationship with their mother.

14. The Family Consultant said that over the last two years when the children have been in the sole care of their mother, their position has improved and it would be for their benefit for this to continue.  She recommended that the children have no contact at all with their father because of their views and because there seemed to be substance to the complaints of him having been violent.

15. The Family Consultant said that being exposed to trauma such as domestic violence affects children’s responses as they have a heightened sense of impending doom, and are hyper-vigilant.  She agreed that such children have difficulty with emotional regulation, and that such exposure can affect the way they react to others, particularly in expressing empathy and in the way they form relationships with others.

16. The Family Consultant said that she did not see any signs of this nature in these children in the brief assessment of them, but said that it was not likely that they were not affected by the exposure to domestic violence.

17. When asked to comment on the attachment relationship between the father and the children, the Family Consultant said they did not seem to have a relationship with their father, and if they had any pleasurable memories or feelings, she would have expected them to remember those feelings.

18. The Family Consultant remained firm as to her evidence under cross-examination and no evidence was put before the Court to contradict it.  Accordingly, I accept her evidence.

The areas of dispute

Level of domestic violence in the relationship

1. The mother says that the father has been violent from the time that she was pregnant with her first child A.  She makes many allegations of physical and verbal abuse during the pregnancy and when A was an infant.  She makes similar allegations during the pregnancy with the child R and after R’s birth in particular in relation to an incident in June 2004, which resulted in the conviction of the father.  The mother says that in this incident, the father punched her in the face, threatened her, grabbed the front of her hair and hit her head against a wooden cot four to five times causing a cut to the back of her head.  The mother says that following the incident she telephoned the police, and that when they arrived at the home, there was blood everywhere and the children were crying uncontrollably.

2. In his first affidavit, the father makes no reference to any circumstances involving his wife or children prior to separation other than asserting he was closely involved with the care of the children.  In his subsequent affidavit, he denies the allegations of violence after A’s birth but does not offer any alternative version of events.  Similarly, the father denies the allegations of violence towards the mother when the mother was pregnant with R and does not offer an alternate version in relation to the incident.

3. In relation to the assault in June 2004, of which the father has been convicted he says that he cannot recall the Apprehended Violence Order and cannot remember the assault.

4. Eight months after the birth of the child Y, in November 2006, the father was charged with Assault Occasioning Actual Bodily Harm of the mother, which resulted in him being convicted and a suspended term of imprisonment being imposed.  The mother’s version of events that she was stabbed in the leg in her home is consistent with the police statement of facts.  The father’s version is that he threw the knife to the floor, which accidentally hit the mother.  The mother says that this assault occurred in the presence of the children.

5. The mother also asserts that even when the various Apprehended Violence Orders were in place and particularly when they expired, the father would assault her and also hit the children.  She asserts that the father regularly threw shoes at the children, criticised and belittled them and regularly assaulted A. 

1. The mother gives evidence of a particular incident in May 2008 when she says the father physically abused A by hitting him with a hose and that the father twisted her arm as she tried to protect her son.  As a result, the mother took the children to a refuge, where she stayed for three months.  During the time at the refuge, the mother says that the father stalked her, that she felt frightened and went to the police, who took out another interim Domestic Violence Order for her protection.  This Order was made final on 3 June 2008 with the consent of the father without him making admissions and provided that the father was not to go within 100 metres of the mother’s residence or work and was not to approach the mother by any means except through a legal representative.

2. The father denied assaulting the mother in breach of or on the expiry of the Apprehended Violence Orders, denied assaulting the children and the incident in relation to the child A in particular, but has not provided an alternate version.

3. The father also asserted that the mother hit the children at least once a month with her hand or hose, and sometimes put a knife on the gas stove and scared the children that she would burn them.  He said that this happened when A was in Year 1 and when R was in child care, which I infer from A’s date of birth was around 2008.  This was put to the mother under cross-examination by the father, but was denied.  None of the children reported to the Family Consultant that their mother had harmed them in any way.

4. There is no dispute that Apprehended Violence Orders were applied for and made for the protection of the mother and children in June 2004, December 2006 and June 2008, and that the father was convicted of assaulting the mother causing her actual bodily harm in June 2004, December 2006 and continued assaulting her and breaching Apprehended Violence Orders after their separation.  On the basis of these undisputed facts, the undisputed fact that the mother moved with her children to a refuge for three months, the children’s evidence as to the assaults and because in respect of many serious assaults the father does not offer any alternative version, I am comfortably satisfied of the mother’s version of events relating to significant violence perpetrated by the father against her, to which the children were exposed up until the time of the parenting Orders in May 2009. 

5. In being satisfied as to the mother’s version, I do not accept the father’s version of events that he and the mother were separated under the same roof and the relationship after separation was amicable.  This version is inherently unbelievable, particularly as the mother had moved to a refuge with the children, which is a place of safety, not simply a form of accommodation.  It is unbelievable that whilst seeking help from the police, escaping to a refuge and seeking the protection of a court order, that the mother would maintain the friendly relationship as asserted by the father.

6. I also do not accept that the father, who at this stage had two convictions for Assault Occasioning Actual Bodily Harm against the mother, and had been the defendant in a number of Apprehended Violence Orders would be coerced by his wife into accepting an Apprehended Violence Order. 

The First Parenting Orders

1. After the Apprehended Violence Order was made to protect the mother in June 2008, Department of Housing accommodation in Suburb M became available and the mother has lived there since.  The mother says at this time the father threatened her that if she did not let him see the children, he would “make her life dark like when she first came to Australia” and that he took her to a solicitor in April 2009 and requested that parenting orders be drawn up.  The mother said that she was not aware that she could refuse the father to have contact with his children, even if she felt he posed a risk to his children.

2. The mother says that after the parenting orders were made, the father cancelled most visits and only saw the children four or five times.  At this stage, the mother described one occasion when the children were to spend time with their father and there were intoxicated men at the father’s home, including one man who was naked with a towel around him.  She did not leave the children with the father on this occasion.  She also said that around this time, A described the father, during these visits, denigrating the mother, which made him distressed, and that the children reported the father offering them money to run away from their mother.

3. The father says that, at this time, he spent time with the children each Thursday and Saturday and that he had a key to the mother’s house and that he could visit the children there at any time.  The father said he helped the children with homework and went shopping and on other outings.  The father also says that the mother cut a key for him to her house after the Orders were made and that he saw the children four or five times each week, sometimes every day, and that during this period sometimes he would stay at the mother’s house and other times the children would stay at his house. 

4. I also accept the mother’s version of events in relation to these matters.  Once again, I find it inherently unbelievable that the mother, who reluctantly after many years of violence, reported it to various authorities, left her marriage, was not receiving any level of financial support and sought the protection of the Court would allow the father to spend time with the children outside the period allowed for in the Orders.

5. There is also evidence from the children themselves relating to this period that the father did not care for them, to which I attach some weight, particularly in the case of A who is old enough to remember particular events.  There is also undisputed evidence that the children were overseas for around three months from November 2009 and that the father was overseas from August to December 2010.

Does the mother suffer from a mental illness?

1. The father’s position that it is in the best interests of the children for him to have sole parental responsibility, for them to live with him and not have contact with their mother, is based firstly on his assertion that she is mentally unwell.

2. I do not accept the father’s assertion that the mother is suffering from a mental illness.  There is no evidence of this nature at all before the Court other than the father’s general assertion, made for the first time under cross-examination, that the mother has a “double personality”, to which I attach no weight.  The father was unable to explain in any way how the mother’s parenting was said to have been impaired or how it was not in the children’s best interests to spend time with their mother, except to express a fear that the mental illness may be inherited. 

3. I also do not accept that the father genuinely believes that his children are at any risk when in the care of the mother.  He agreed to the children living with her and only spending a few hours a week with him since May 2009.  He only indicated that he is seeking an order that the children have no contact with their mother at the start of the hearing. 

Have the children been influenced by their mother?

1. Central to the father’s position is the assertion that the children have been influenced by their mother, that they actually do love both parents and that they were well cared for by the father prior to and after the separation. 

2. It is important for the Court to consider whether the children’s very strong views about their father may not be their own and that they may have been influenced by their mother, or others associated with her, as the father suggests.

3. The fact that the children all give evidence of quite specific details of generally similar events may be indicative of coaching, but also may be corroborative of actual events having occurred.  There are also some events, such as A asserting that he intervened to prevent Y drinking flammable liquid during time spent with the father, which is not an event referred to in any other person’s evidence.  In my view, this suggests that it is an independent recollection.  In these circumstances, I attach weight to the events relayed by the children.  

4. Although the Family Consultant was unable to state categorically that each child has or has not been influenced, she did not believe that these children had been coached.  This is a matter where I attach weight to the opinion of the Family Consultant whose expertise includes an assessment of the genuineness of the children’s views.

5. The Family Consultant refers to the language used by the children, the form of expression, their demeanour and the internal consistency between responses to questions asked and the sentence completion exercise as all indicating authentic recall. 

6. The children’s evidence about their feelings towards their father is also supported by the mother’s husband, Mr H.  Mr H was clearly quite reluctant to give evidence of what the children had told him about their father saying it would hurt the father (as in his feelings), but the father pressed him to tell the Court what the children had said.  Mr H said the children told him their father had “hurt their mother and always threaten her with a knife”, and “all the time, our life is just so bad, it’s like total destruction in the house. We are not easy, we are not comfortable, in our life.”

7. I find the children’s evidence concerning their feelings towards their father is authentic.  As this evidence is reliable and genuine, I attach significant weight to it.

Other complaints made by the father as to the mother’s parenting

1. The father also makes general and specific complaints about the mother’s parenting in support of his application.  He refers in his affidavit to a period during December 2009 and January 2010 when the children went with their mother to the Middle East without his knowledge.  He says that he was told in January 2010 by a neighbour that Y was in a Middle Eastern hospital and that the mother had left the children with her sister there and gone to a neighbouring country.  The father said that at the time he did not believe what he was told as he had the children’s passports.  He appears in his affidavit to be suggesting that the mother denied to him having taken the children overseas and, later in the affidavit, he seems to suggest that something untoward had happened in relation to the children’s passports, but this is unclear from his affidavit and was not developed in submissions by the father.

2. In addition to the evidence about the trip to the Middle East, and the extent to which the children saw their father after the consent Orders were signed, there is also dispute in relation to the circumstances surrounding the children no longer spending time with their father. 

3. In his affidavit, the father insists that he and the mother remained friends at this time, although they were divorced and each had remarried.  In the course of the cross-examination of the mother and in his own submissions, however, the father seemed unduly focussed on the circumstances surrounding the mother’s remarriage, which seemed to be contrary to the evidence of them being friendly.  This evidence also appeared to have no relevance to the matters to be determined.

4. Although it is not entirely clear from his affidavit, nor was it developed in submissions, the father appears to have made some connection between the mother’s remarriage, an incident on 9 January 2011 and not seeing the children.  The father’s version of events on that day is that the mother came to his house early in the morning, started arguing with him and threw an ash tray at his face, which caused permanent damage to his eye.  The father says that he has not seen the children since this time and that the mother has threatened to take the children overseas and not return them. 

5. The mother’s version of events surrounding the children not spending time with their father is that when he returned from overseas in late 2010 the children spent time with him in accordance with the Orders on two occasions.  The mother said that on the first occasion there was an incident when R returned home crying.  The mother asked her what had happened and R said that the father had asked her to come and lie next to him on the bed, that she refused and the father, who was drunk, chased her, managed to push her onto the bed and tried to kiss her and told her not to tell her mother.  The mother says that two weeks later A and Y visited the father, but R did not want to go and when A returned, A said his father told him to tell R that next time “I will hit her”.  The mother says that this was the last occasion the children spent time with their father.

6. I cannot be satisfied of what actually occurred in relation to the incident involving R as it may have involved a misunderstanding on her part.  However, I am satisfied that R made this complaint to her mother at the time and was distressed. 

7. It is not in dispute that the father was charged, convicted and sentenced to a term of imprisonment, which was initially suspended and for which he subsequently served time in gaol for assaulting the mother on 9 January 2011 and causing her actual bodily harm.  Further, the mother has not been charged with any offence relating to 9 January 2011 or any other time.  On the basis of the undisputed facts, I find that the father committed a significant assault on the mother on 9 January 2011 and as a result of this event and the two occasions on which the father spent time with the children in December 2010, the children have not spent any time with the father since December 2010. 

Issue of fraud and the role of Ms B

1. The father’s position is that although he pleaded guilty to a number of assault charges, all his convictions and charges were “set ups” and “frauds”. 

2. It is the father’s case that the mother had committed some sort of fraud with the NRMA whilst the parties were together, which related to “cars, properties and houses”.  He said that parts of cars or the whole cars had been removed and hidden in the garage and then an insurance claim had been made about part or the whole of the vehicle.  The frauds started in 2006, and when he became aware of them, the mother and a person named Ms B, who he describes as “the mastermind” of the fraud, involved him in the fraud.  The father did not explain in his affidavits, oral evidence or in submissions how the alleged frauds were related to the acts of violence or breaches of Apprehended Violence Order of which he has been convicted.

3. The father partly supported his case for the children living with him and having no contact with the mother by reference to the alleged fraud and not wanting the children to learn from such behaviour and make such mistakes. 

4. The father is also seeking that the mother be restrained from allowing the children to come into contact with Ms B and two of her children.  He is seeking such a restraint because of her role in the alleged frauds and because of his belief that she took A to the police to give evidence against him.

5. The father also made reference to several people who were, he alleges, supposed to be financially supporting the mother’s current husband.  The father asserts that as these people are not in fact financially supporting the mother’s husband, as a result they are, in effect, using money that should be going to his children.  These people are also somehow connected to Ms B according to the father and he says should therefore also not have contact with his children.

6. The mother denies all of the assertions of fraud and the facts in relation to Ms B, who she describes as a friend and support.  There is no evidence to support the assertions of the mother or Ms B having been involved in any fraudulent conduct, and I am not satisfied that it occurred.  Whilst there is no dispute that A did give evidence in criminal proceedings against his father as he had witnessed one of the assaults, I am not satisfied that Ms B did anything untoward in this regard.  I do find, however, that the father feels significantly aggrieved that A was involved in this way as there were a large number of questions in cross-examination of the mother on this issue.    

Submissions

1. The father’s central submission is that the Court should make the orders of sole parental responsibility for the children, that the children live with him and spend no time with the mother as the mother has refused treatment for her mental condition and that without such treatment, she is not a fit parent, even on a shared basis.  The father’s second submission is that his children love both their parents and have been unduly influenced by their mother to suggest otherwise.  Although in the course of cross-examination the father suggested that the mother’s involvement in fraud affected her fitness as a parent, ultimately he seemed most concerned about the alleged fraud in connection with the mother’s friend Ms B.

2. The mother’s central submission in relation to the wellbeing of the children is in relation to the impact of the father’s violence on them. It is submitted that the Court should be satisfied that the father had been violent towards the mother in the presence of the children and had been violent towards the children. It is also submitted that the father failed to have any insight into the impact of his violence on the wellbeing of the children. The mother is also seeking an injunction restraining the father from contacting or communicating with her, her husband or any of the children, and from approaching her or any of the children, from attending at her and the children’s residence, from attending at the school of any of the children and from attending at any venue of extracurricular activity in which any of the children may be involved. She seeks an order that in the event the father breaches the terms of the said injunction that there be power for police officers to arrest the father without warrant pursuant under section 68C of the Family Law Act 1975 (Cth) (“the Act”).

3. The Independent Children’s Lawyer submits that each parent is acknowledging in the orders sought that it is not possible for them to cooperate or communicate with each other to ensure that the children have a meaningful relationship with both parents.  I agree.

4. The Independent Children’s Lawyer submits that so far as the father is concerned, his allegations about the mother’s mental illness are based entirely upon his own belief and there is no evidence to indicate that his belief is correct. It is submitted that the allegations that the father makes about the mother’s veracity and involvement in a fraudulent venture are also not supported by any evidence and that even if the Court were satisfied as to this conduct, father has not established how this is relevant under the Act.

5. The mother’s acknowledgement that it is not possible for the parents to cooperate to ensure that the children have a meaningful relationship with both parents is based upon matters of serious violence against her, which has resulted in a number of criminal convictions against the father.  It is submitted by the Independent Children’s Lawyer that the evidence of Assault Occasioning Actual Bodily Harm matters indicate that the children were present during those incidents.  The Independent Children’s Lawyer also submits that the three convictions for breach of Apprehended Violence Orders, of themselves, are sufficiently serious for the Court to be satisfied that the children are exposed to an unacceptable risk of family violence. 

6. In addition to the primary considerations under section 60CC of the Act as to how a Court determines what is in a child’s best interests, it is submitted by the Independent Children’s Lawyer that the Court should have regard to a number of the additional considerations including the views expressed by the children, to which it is submitted the Court should give some weight, which are also corroborated by the mother’s husband.

1. In relation to the nature of the children’s relationship with their parents, the Independent Children’s Lawyer notes that the children have not spent any time with their father since late 2010 or January 2011 and have had no communication with him.  It is also submitted that important other relationships include the children’s half sibling and their step-father.

2. The Independent Children’s Lawyer’s general submission is that in light of the evidence of the father’s violence, the father having had no time at all with the children for some years, the father having remarried a woman who has not met the children and in circumstances where they would be otherwise living away from their mother and half-sibling, the only parenting orders that the Court could make in the best interests of the children are those sought by the mother. 

3. In addition to the orders relating to parental responsibility, living arrangements and spending time, the Independent Children’s Lawyer also supports an order removing the children’s names from the Airport Watch List as it is submitted there is no reason associated with the children’s best interests why it should remain in place. The Independent Children’s Lawyer originally seemed to oppose or be ambivalent about the orders sought to restrain the father under section 68B, and even initially submitted that the mother ought to seek to extend the current Apprehended Violence Order in the Local Court. However, it was submitted that an Apprehended Violence Order was only preferable as it contained a specified distance within which the father should not approach and ultimately the Independent Children’s Lawyer submitted that it was more appropriate to make an injunction under section 68B of the Act rather than expect the mother to apply to extend the Apprehended Violence Order.

The Law

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

2. 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 the child as the paramount consideration.

3. 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.

4. 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. 

5. In relation to a meaningful relationship, the Full Court said in McCall & Clark[1] at paragraph 122:-

   (T)he legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship.  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.

   In my view, this is such a case.  On the evidence before me, the father is incapable of sharing a healthy and constructive relationship with the children.

   [1] [2009] FamCAFC 92

6. On the evidence before me, any possibility of the father coming into contact with the mother for the purpose of facilitating a relationship with the children in light of the history of the matter brings with it an unacceptable risk of violence towards the mother to which the children may be exposed.   

7. In addition, there is significant evidence that the father feels aggrieved that the child A was involved in giving evidence against him in criminal proceedings and, in my view, there is a risk that A will be psychologically and possibly physically harmed as a result.  Further, I am satisfied that the children are distressed from being exposed to family violence in the past, and at the prospect of spending time with their father in the future.

8. So far as family violence is concerned, this is also repeated as an additional consideration under section 60CC(3) and section 60CG(1) provides that the Court must, (that the extent that it is possible to do so, consistent with the child’s best interests being the paramount consideration) ensure that the order does not expose a person to an unacceptable risk of family violence.

9. So far as the additional considerations are concerned, I note that the children have each expressed strong views about their feelings towards their father, and in light of A’s age, in particular, and the findings I have made about the authenticity of those views, I attach some weight to them. 

10. I am of the view that the relationship between each of the children and their father is not a strong one on the basis of the time that has elapsed since they have seen him and the extent and nature of their time spent with him.  Further, at the time of separation, A was seven, R was five and Y was two years old.  The children’s relationship with their father is unhealthy and troubled and the children do not want to continue it.

11. It appears to me that on the basis of the step-father’s and mother’s evidence the children share a good relationship with the step-father, and I would also infer that they have a close sibling relationship with their half-sister.  The children do not have any relationship with their father’s wife or his child from the current marriage.

12. The mother has made all the decisions about the children since at least December 2010 and the father has spent no time with them or communicated with them since that date.  Although the father has only seen the children on two occasions at the most since August 2010, and both of these being in December 2010, he did not bring an application for an order that the children spend time with him until November 2011. 

13. Although the father asserted in evidence that he paid child support pursuant to an informal agreement, I am not satisfied that this has occurred.  The father has failed to fulfil his obligations to maintain the children and these obligations have been fully met by the mother.

14. The likely effect of any changes in each of the children’s circumstances, including spending time with their father, but in particular including the likely effect on each of them of separation from their mother, would be, on the evidence before me, significantly detrimental to each of the children. 

15. In this matter, the two alternate sets of orders being considered by the Court envisage the children living with one or other of the parents and spending no time with the other parent, so the issue of practical difficulty in arranging time with the other parent for that proposal does not arise.

16. The mother has demonstrated that she is capable of providing for the needs of the children, including their emotional and intellectual needs.  Although I am satisfied on the evidence that the mother initially was not sufficiently protective of the children in relation to their exposure to violence, I am satisfied that this was due to her feelings of isolation and fear and threats that the father had made.  I am satisfied that she has subsequently taken steps to ensure that the children receive counselling in relation to the emotional trauma they have suffered and that she has gained sufficient knowledge through accessing services herself to ensure that her children will be protected in future from the harm occasioned by being exposed to violence. 

17. I am not satisfied that the father is capable of providing for the emotional needs of the children as he minimises or denies his violence even in relation to matters of which he has been convicted.  The father’s failure to demonstrate that he understands the children’s emotional or psychological needs in relation to the impact of exposure to violence, or a capacity to provide for their day to day needs prior to or after separation weighs heavily against the orders he seeks and in favour of the mother’s orders. 

18. The children are of Middle Eastern heritage and connections to the relevant culture would be met under either of the suite of orders sought. 

19. There is nothing in the evidence before me to cause concern about the attitude of the mother towards her children and she has demonstrated that she is a responsible parent.  I am of the view that the father has not demonstrated that he understands the responsibilities of parenthood.  The father continues to minimise or deny his violent conduct and does not see the connection between it and his responsibility as a parent.  On a financial level, I am not satisfied that he has paid any child support, nor has he at any stage since separation involved himself in the children’s lives beyond spending a few hours with them on a number of occasions separated by many months, over a period of about 18 months, some years ago. 

20. The issue of family violence and the children’s exposure to it has been referred to at length earlier and is the most significant issue in my view in relation to the best interests of these children.

21. Taking into account both the primary and additional considerations, virtually all of these matters lead to the conclusion that it is in the best interests of each of these children for parenting orders to be made as sought by the mother.  All of the significant considerations favour those orders, with only two considerations equally favouring the orders sought by the mother or the father (the lack of practical difficulties and the extent to which lifestyle, culture and traditions are met) and neither of these considerations assume particular significance in this matter.

22. None of the additional considerations suggest that the father’s orders are in the children’s best interests, although the primary consideration of the benefit to each of the children of having a meaningful relationship with both of their parents would not be met by either of the parent’s proposals.  In this matter, however, I am satisfied that the far more important and meaningful relationship for these children is the relationship with their mother, and as I have indicated, I am not satisfied that the children would benefit from a meaningful or significant relationship with the father.  In all of these circumstances, the parenting orders in relation to where the children should live and the time to be spent with the other parent as sought by the mother are in each of the children’s best interests.

23. The starting point for parental responsibility is section 61DA, which 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.  This presumption does not apply, however, (under s 61DA(2)) if there are reasonable grounds to believe that a parent of the child has engaged in family violence. 

24. Family violence is broadly defined, and the father’s numerous convictions for Assault Occasioning Actual Bodily Harm on the mother and breaches of Apprehended Violence Orders, is compelling evidence that there are more than reasonable grounds to believe the father has engaged in family violence.  Accordingly the presumption does not apply.  Further, for the reasons given, it is in the best interests of these children for the mother to have sole parental responsibility.

25. The mother also seeks orders allowing her to change the children’s names and an injunction under section 68B prohibiting the father from approaching (a) the mother or either of the children or her husband, (b) the mother and children’s place of residence, (c) the school attended to by any of the children and (d) any venue of extracurricular activity in which the mother or any of the children may be involved in.

26. So far as the name of the children is concerned, there is uncontested evidence that although the children bear the same name that the father had when they were born, he has subsequently changed his surname and to date not taken steps to change it back. In other words, the children bear the surname of neither parent. In light of my determination that it is in the best interests of each of the children for the mother to have sole parental responsibility for them, she should be entitled to change their name. However, as section 28 of the Births, Deaths and Marriages Registration Act 1995 (NSW) provides that a where both parents are named on the birth certificate and both parents are alive, a change of name application can only be made with the consent of the parents named on the birth certificate or under a Court order, I propose making an order to this effect.

27. The injunction sought by the mother is in somewhat similar terms to the current Apprehended Violence Order, which is due to expire on 29 September 2013.  The history of this matter indicates that Apprehended Violence Orders have been made by Courts on many occasions for the protection of the mother.  On at least one occasion, the father consented to the Order being made without making any admissions, and subsequently in this Court alleged he was coerced into that position.  The number of breaches and their seriousness, including the incident at Court on 27 September 2011, indicates, in my view, that these orders have not been particularly effective in protecting the mother.

28. Further, the father’s attitude towards his offending, even when convicted, indicates that there is a likelihood that he will not consent to the current Apprehended Violence Order being extended with the result that the mother will be required to endure the ordeal of a further hearing relating to incidents of significant violence for the purposes of obtaining that extension.  In my view, this would be unreasonable and oppressive, and as the mother has been seeking protection through the Courts and police for a period of nine years, effectively throughout the whole of her children’s lives, she is entitled to have all matters relating to the protection of herself and her children from the father’s violence finally determined in this Court. 

29. Accordingly, I make the additional orders as sought by the mother.

30. In addition to the parenting orders sought by the father, which I have indicated will be dismissed, the father also seeks injunctions in relation to the children coming into contact with Ms B and other people.  There is no evidence that the actions of these people in any way relate to the welfare of these children.

31. Further, the father seeks to restrain the mother from taking the children out of the Commonwealth of Australia, and for that purpose, that they remain on the Airport Watch List.  I am satisfied that the mother has previously taken the children out of Australia and returned them, and there is no basis for fears in this regard.  Further, as the mother will be given sole parental responsibility for these children, she is entitled to take them for whatever overseas travel she deems appropriate in an exercise of parental responsibility.  Accordingly, that application for such an order will be also dismissed. 

32. The orders that I make are as set out at the forefront of these Reasons for Judgment.

I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 26 September 2013.

Associate:                 

Date:    26 September 2013