FARRAH & RAHIM

[2020] FamCA 722

FAMILY COURT OF AUSTRALIA

FARRAH & RAHIM [2020] FamCA 722

FAMILY LAW – CHILDREN – Undefended hearing – Best interests – Where appropriate the matter proceed on an undefended basis – Where consideration of applicable principles – Where father’s violent history and serious threats of harm to mother and child is of serious concern – Where orders made providing the mother with sole parental responsibility – Where orders made for the child to live with the mother – Where orders are silent as to time with the father – Where appropriate to restrain father from taking child out of country and from obtaining a passport for the child – Where appropriate to make orders permitting mother to obtain passport for the child and travel internationally with the child without the father’s consent.

Family Law Act 1975 (Cth) 60B, 60CA, 60CC, 61DA, 65DAA

Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

APPLICANT: Mr Farrah

RESPONDENT: Ms Rahim

INDEPENDENT CHILDREN’S LAWYER: Mr Layson

FILE NUMBER: PAC 3809 of 2016

DATE DELIVERED: 1 September 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 14 July 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No Appearance

SOLICITOR FOR THE RESPONDENT: Ms Dannoui of Shelly Legal

INDEPENDENT CHILDREN’S LAWYER: Sarah Bevan Family Lawyers

Orders Made On 14 July 2020 And Amended Pursuant To Rule 17.02 Of The Act

1. The mother, Ms Rahim, have sole parental responsibility for the child Y born … 2014.

2. The said child live with the mother.

3. Until further order, the father Mr Farrah born … 1988 his servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the child, Y born … 2014, from the Commonwealth of Australia until further order of the Court.

   AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until the Court orders its removal.

4. The father be restrained from commencing or proceeding with any application for a passport for the said child from the Country B Consulate or any other appropriate Country B Governmental Department which issues or has the power to issue Country B passports.

5. The child, Y born …, is permitted to have an Australian travel document and to travel internationally.

6. The mother Ms Rahim may apply for an Australian travel document (passport) for the child, Y born in 2014, without first obtaining the consent of the father Mr Farrah.

The Court Notes That

1. In the circumstances of this matter there is no application for costs by the Independent Children’s Lawyer.

2. Judgment is reserved to a date to be fixed.

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 Farrah & Rahim 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 PARRAMATTA

FILE NUMBER: PAC 3809 of 2016

Mr Farrah

Applicant

And

Ms Rahim

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings commenced by the applicant father by Initiating Application filed 16 August 2016.

2. The application concerns the child Y (“the child”) born in 2014 who was five years old at the time of hearing.

3. The father formally withdrew his application on 16 January 2020 and the matter proceeded on an undefended basis.

4. At trial, the mother relied upon the following documents:

   a)her Amended Response to Initiating Application filed 12 June 2020; and

   b)her affidavit filed 12 June 2020.

5. The mother sought final orders that she have sole parental responsibility for the child and that the child live with her and spend no time with the father. She also sought orders that the child’s name be placed on the Family Law Watchlist, that the father be restrained from applying for a passport for the child from the Country B Consulate or any other appropriate Country B governmental department, and that she be permitted to apply for an Australian passport for the child and travel internationally with the child without the father’s consent.

6. The Independent Children’s Lawyer (“ICL”) supported the mother’s position.

7. Orders were made by the Court largely in the terms sought by the mother on 14 July 2020 and reasons were reserved. These are those reasons.

Context

1. The mother was 28 and the father 32 at the time of hearing.

2. The mother came to Australia as an infant.

3. The parties were married in an arranged marriage within a religious sect in Country B in 2012.

4. The father came to Australia after the marriage and was granted a partner’s visa in about mid-2013.

5. The parties separated on a final basis in July 2014 when the mother was about eight months pregnant with the subject child.

6. At the time of marriage both parties adhered to the same religious sect, and just prior to the collapse of their relationship in 2014 the mother made the decision to no longer follow and practice such religion. It is the mother’s concern that a number of dire repercussions flow from her decision, including that death is culturally accepted and ruled as a consequence for those who renounce the particular faith.

7. She continues to fear for her and the child’s safety both in this regard and as a result of the father’s violent history.

8. For about three years following the child’s birth, the father had no contact with the mother or the child. Interim orders were then made in March 2017 in the Federal Circuit Court of Australia following the application made by the father, providing that he spend limited supervised time with the child at a contact centre. This parenting arrangement continued until July 2019, after which time the father’s contact with the child ceased. He has not seen the child since, and it is the mother’s understanding that he has started a new family.

9. The mother and the child continue to live in a household shared with members of the maternal family who support the mother in the care of the child. 

The proceedings

1. Proceedings were commenced by the father on 16 August 2016 by filing an Initiating Application in the Federal Circuit Court of Australia.

2. On 27 September 2016 the mother filed a Response to the father’s application seeking orders that she hold sole parental responsibility for the child and that the child live with her and spend no time and have no contact with the father. She also sought orders relating to passport arrangements for the child.

3. Initially, orders were made that the child live with the mother and spend limited supervised time in a contact centre with the father, and that the parties be restrained from removing the child out of the country. An Independent Children’s Lawyer was also appointed to represent the child and the parties were ordered to attend upon a family consultant for the preparation of a Child Dispute Conference Memorandum.

4. On 30 March 2017 interim orders were made with the consent of the parties providing that the child’s time with the father be supervised by a contact centre and that such time occur once per week as agreed between the parties and the nominated contact centre.

5. The family met with a family consultant for the preparation of a Family Report on 16 January 2018 and the Family Report was released to the parties shortly thereafter.

6. On 15 May 2018 orders were made with the consent of the parties providing that the child’s supervised time with the father be increased to two hours each alternate weekend. It was also ordered by consent that the father participate in a behavioural management program or related course recommended by the ICL.

7. On 1 November 2018 parties were again ordered to attend upon a family consultant for the preparation of a Family Report. The parties were not interviewed until May the following year.

8. Upon release of the Family Report, the proceedings were transferred to this Court on 22 August 2019 and it was noted on that occasion that the matter involved some complexity due to the mother’s contention that certain cultural and religious issues exist which affect the child’s relationship with the father and her overall capacity to parent the child. A recommendation was made in the Family Report that a Chapter 15 Expert be appointed.

9. On 17 October 2019 the matter was listed before this Court for the first day of a Less Adversarial Trial. It was identified that the issues in dispute between the parties substantially revolved around allegations of family violence made against the father. Trial directions were then made and the Court further noted that a Chapter 15 Expert Report would not further assist in the determination of the matter.

10. On 16 January 2020 the father filed a Notice of Discontinuance and formally withdrew his final orders application.

11. The matter proceeded on an undefended basis on 14 July 2020 with no appearance by or on behalf of the father, and the mother legally represented.

Procedural fairness

1. As outlined above, the father formally discontinued his application for final orders on 16 January 2020 and has since disengaged in the proceedings. In these circumstances it was appropriate for the proceedings to be heard on an undefended basis.

Child Dispute Conference Memorandum

1. On 27 September 2016 the family met with a family consultant for a preliminary assessment. At the time, the child was only two years old.

2. The mother reported various instances of family violence perpetrated by the father including that which she experienced during her pregnancy. She told the family consultant that the father had hit her on five occasions and that he “choked and pinned [her] down” when she was pregnant. She also reported that the father would often verbally abuse her and engage in coercive and controlling behaviour towards her. It was further noted that in August 2016 an Apprehended Domestic Violence Order (“ADVO”) was made for her protection for a period of six months. The father denied that he was physically or verbally abusive towards the mother, but acknowledged that an ADVO was put in place and later dismissed in 2015.

3. The mother told the family consultant that she suffered depression during the parties’ marriage and after she had given birth to the child. She further reported that on five occasions in 2015 she engaged with a psychologist for counselling. Neither parent raised concerns about the ongoing mental health of the other parent.

4. A significant issue between the parties that arose in the course of the assessment concerned the circumstances of their separation which the family consultant characterised as a “risk” relating to the parties’ co-parenting relationship. The family consultant identified that the “source of conflict” between the parents was that the mother alleged that following her decision to transition into the mainstream religion, the father threatened to kill the child if the child “was a different religion to him”. The mother then alleged that the father abandoned her when she was eight months pregnant and returned to Country B and made no contact with the child until she was about three months old. The father disputed the mother’s account and stated that the mother had lied about her cultural identity at marriage and, along with members of the maternal family, “created barriers” to prevent him from having a relationship with the child. He reported that he had been sent back to Country B by the maternal family when the mother was due to give birth, and upon returning to Australia was severely obstructed in relation to parenting the child.

5. It was the mother’s view that the father was not entitled to have a relationship with the child since he is “an abusive person”. She told the family consultant that she did not trust the father and that she doubted that he would uphold any agreement or comply with orders relating to the care of the child.

6. Despite this, by the end of their interviews with the family consultant, both parties were agreeable to the child spending time with the father on a supervised basis, and the family consultant made a recommendation to the Court accordingly.

The mother’s assertions: the father’s perpetration of family violence

1. Throughout the parties’ brief marriage the father perpetrated physical, emotional and sexual abuse towards the mother including when she was pregnant with their child.

2. From about October 2013 it was not uncommon for the father to physically abuse the mother by striking her with his hands or with certain implements found in the family home. On one such occasion when the mother was six months pregnant, the father held her by the jaw and used his other hand to slap her “hard on [her] left cheek”.

3. Another time, following an argument between the parties, the father forcibly grabbed the mother and proceeded to hold his hand over her face and nose. At the time, the mother was eight months pregnant.

4. Aside from physical assaults, the father often swore at the mother with his fists extended towards her, and made threats that he would physically hurt her. As a result of his intimidating behaviour, the mother says she would “modify [her] behaviour or how [she] spoke” as she did not feel comfortable and instead felt that she was always under pressure or “walking on eggshells”. During these times she felt helpless and the emotional distress she experienced caused her to “start crying for no reason”. On one occasion the father mocked the mother commenting, “oh look, good job, you didn’t cry for one whole day”.

5. Other intimidating behaviour the father engaged in towards the mother included driving in excessive speeds and in an erratic manner to make her “scared the car was going to crash”. This occurred on at least two occasions and in circumstances where the parties argued in the car.

6. Most verbal abuse levelled at the mother involved denigration of her appearance and the father using derogatory language towards her on a daily basis. The mother recounted a time during her pregnancy she felt “worthless” after the father told her words to the effect of “you are so fat … I get so angry looking at you”.

7. As their relationship progressed, the father displayed a range of controlling and coercive behaviour towards the mother which she says limited her in many respects.

8. With respect to her financial matters, the father demanded that the mother transfer large sums of money from the parties’ joint bank account and from the mother’s own personal account into his parents’ account. The mother’s use of the joint funds was also restricted in that she was prohibited from purchasing items for herself and would need to ask the father for permission to purchase essential items such as food and soap.

9. On one occasion during the mother’s pregnancy, the mother purchased items for the child amounting to $36.00. In response, the father became angry and demanded that she return the items. On another occasion, in the course of purchasing a nursing bra, the father threatened the mother that if she proceeded to buy the item she would “be in trouble”. As they left the store, the father repeatedly hit the mother on the head saying “because of you and your excessive spending I will end up on the street”.

10. With respect to her relationships, the mother felt she could not maintain her friendships as she was not permitted to meet with her friends. Even at times they were at home, the father would ask the mother “who did you speak to? Did you speak about me?” if she had left the room briefly.

11. The mother was also controlled by the father with respect to her education. The father told the mother that he no longer wanted her to complete her tertiary education and on one occasion told her words to the effect of “you are just a dumb student…what is the point of you studying? You will only ever be a housewife to look after me. You are dumb”. The father also regularly denied her use of a laptop provided by her parents for her study, and as a result the mother deferred her studies a number of times.

12. The father also refused to allow the mother to leave the bedroom, and if she did, for example at times when she wanted to eat, the mother described feeling “under pressure to return quickly or risk having [the father] become angry with me”.

13. Other than two occasions, the mother asserts that she did not consent to the father’s sexual advances and as such was victim to sexual violence. Often the father told her words to the effect of “you are my wife…I can do what I want to you”. The mother recalls a time where the father scratched her, ripped her clothes and bit her several times on the chest and neck. Although she cried and communicated that she was in pain during intercourse, the father did not stop. Because she feared the father, she “learned not to fight back”.

14. On one occasion the father threatened suicide and told the mother words to the effect of “I feel like killing myself because of you” which confused the mother and made her feel “out of control”.

15. Aside from the father’s pattern of abusive behaviour outlined above, the mother holds serious concerns about the belligerent attitudes displayed by the father and threats made by him towards her as a result of her decision to no longer practice his particular faith.

16. Throughout the proceedings the mother expressed the fear that because she is now considered an “apostate” by the father and members of his family and their religious community, in accordance with their particular “religious ruling” she is liable for the “death penalty”.

17. On the day the mother informed the father that she no longer wants to partake in his religious rituals in late July 2014, the father became enraged and called her offensive names such as “motherfucker” and “cunt”. The father then contacted his parents who demanded that the mother “obey” the father. When the mother reiterated that she no longer believed in the particular faith, the father threw a plastic storage tub towards her and stated words to the effect of “if my child were to leave [particular faith] I would kill it. I just married you, so I wouldn’t kill you”.

18. The next day the father again swore at the mother and berated her. Later when he went to work he told her words to the effect of:

    I can’t concentrate at work as I am so angry. I am coming home. I have had a car accident now because of you and now I am going to die. Fuck you [mother’s name]. I hate you bitch. How dare you leave the religion. Fuck you and your mother and your sister…

19. When he arrived home from work the father informed the mother that he was returning back to his home country and departed the country that night. Before departing the father demanded that the mother provide him with her bank card for her sole account, along with its relevant pin number.

20. At the airport the father withdrew all of the mother’s funds in her account and took with him her remaining funds in her wallet and her mobile phone. The mother as a result was severely financially strained in meeting her childbearing expenses.

21. Once overseas the father repeatedly asked the mother to return to his religion. At the mother’s refusal, death threats were made against her and the child and threats were also made to the maternal grandparents shortly thereafter. The father then engaged in conduct intended to shame and humiliate the mother and her family in accordance with his extremist religious views and due to the negative disapproval possessed by him. The mother describes being vigilant as to the places she frequents as she is terrified of the social and cultural backlash of her decision. 

1. Although subject to constant violence in the family home, the mother did not seek help from her family members as “culturally, family violence is very difficult to speak about” and she felt “very ashamed” about her experience. Likewise, she was “too frightened” to report these incidents to her treating doctor.

2. It was not until around August 2014 shortly after the parties separated, the mother sought therapeutic support from domestic violence services and attended upon various social workers and a local doctor for advice. Because the mother was unshaken in her fear that the father would kill their child as threatened, she organised through a hospital social worker a safety plan for the birth of the child.

3. After disclosing the father’s history of domestic violence, the mother was also referred to a psychologist by a general practitioner in whose notes it was recorded:

   [The mother] has constant anxiety and depression symptoms in the extremely severe range. She has constant fear about her wellbeing and the wellbeing of her unborn child at present.

4. Around this time the mother received a text message for the father which indicated that he had returned to Australia. The mother responded to the father’s message a few days later, demanding the father to stay away from the family otherwise police would be called. No response was received.

5. On 17 August 2014 the mother attended the police station and made a statement regarding the family violence perpetrated by the father. She then applied for a provisional Apprehended Violence Order (“AVO”) for her protection for a period of two years, although it appears this was not made final.

6. In early 2017 the mother received a recognition payment under the Victims Support Scheme in the order of $1,500.00. In the relevant government department’s ‘Notice of Decision’ annexed to the mother’s affidavit, she was recognised as a “primary victim” of an act of violence, being the domestic abuse she experienced over the course of the parties’ relationship. Under Victim Services she was also referred to a psychologist whom she attended upon for at least three sessions.

The Family Consultant’s evidence

1. On 16 January 2018 the family met with a family consultant for the preparation of a Family Report. On this occasion the parties were interviewed and the child who was almost four at the time was observed with the father.

2. At the time of the assessment interim orders were in place providing for the child to spend supervised time with the father at a contact centre. It was understood that this had occurred on six occasions.

3. On interview, the mother maintained that she was physically, sexually and emotionally abused by the father. The father told the family consultant that the mother “invented” these allegations in order to “play the Australian system” and prevent him from seeing the child.

4. With respect to the issue of religion for which the mother claimed she suffers Post Traumatic Stress Disorder (“PTSD”), although the father conceded being “most upset” about the mother’s decision to no longer practice his particular faith, he denied that he made threats towards the mother in this regard.

5. The mother remained concerned that the child could be at risk of death if orders were made providing that she spend unsupervised time with the father. She later told the family consultant that although she encourages the child to attend the contact sessions, the child is often reluctant to leave her and has on occasion cried during these times.

6. Other than his concern that the maternal family sought to alienate him from the child, the father did not report issues with the mother’s care of the child. He considered himself an adept parent and also refuted the mother’s suggestion that he would harm the child in light of his religious views. He further added that he would not endeavour to force his own faith on the child. The mother later told the family consultant that the father’s apparent intention of caring for the child pales against his alleged past threats on her life.

7. The family consultant noted that the issue of family violence and abuse was “difficult to assess” due to the stark contrasts in the parties’ accounts of the circumstances of their relationship and separation.

8. The father told the family consultant that the parties had a “loving and cooperative” relationship and that they seldom argued. The mother relayed various instances of family violence consistent with her affidavit evidence and reported that she was not happy in the marriage although she “tried to be a good wife”.

9. It was the family consultant’s observation that it appeared “impossible” for the mother to discuss her situation without reference to her allegations about family violence and the religious ruling, stating that in the course of the assessment the mother presented her views “firmly”. Although the family consultant noted that it was not possible to observe the mother’s non-verbal interactions such as facial expressions as she was attired in a burqa, he was of the view that the mother displayed “strong apprehension about [the father]’s motivation and propensity for violence”. He later evaluated that the mother’s allegations are “serious matters which require appropriate investigation and determination”, and if found to have veracity, the father is likely:

   …an emotionally unstable individual, whose religious fanaticism presents a real threat to her and the child.

10. When observed with the father, the family consultant noted that the child walked willingly into the observation room but upon seeing him, “froze”. The family consultant reported that in the course of the assessment the child “stood silently and would not engage with [the father]” despite occasional prompting on his part.

11. While the child did not display overt distress such as crying, the family consultant reported that the child looked at the father from across the room “with curiosity and apprehension”. It was also reported that the father struggled to gain the child’s confidence and his attempts at ‘breaking the ice’ were rather passive. The family consultant added that the father did not approach the child so the physical space between them made the situation more difficult.

12. At the family consultant’s own motion, the father’s observation with the child was cut-short with his permission. No exchange between the father and the child took place at the conclusion of the meeting and the child willingly exited the room. The family consultant opined that it was possible that the child had become “accustomed” to seeing the father in the familiar setting of a contact centre and found the interaction “unsettling”.

13. Notwithstanding the issue of family violence, the family consultant also held concerns about the intense religious conflict between the parties which he opined was a “major underlying dispute”.

14. Although the family consultant noted that he could not formulate an opinion on how the father’s faith may affect future circumstances, particularly any possible ramifications for the father’s ongoing relationship with the child, he was of the view that it will take a “considerable period” of the child to develop a positive relationship with the father. He added that the removal of supervision in the child’s contact arrangements with the father as proposed by the father cannot be contemplated, and recommended that the father engage in a parenting programme to improve his parenting capacity. 

15. It was the family consultant’s recommendation that should the Court determine that the child is unlikely to be placed at risk of harm with the father, the child’s contact regime be increased to one full day at a contact centre each fortnight, otherwise, it is appropriate that the then-current contact arrangement continue indefinitely.

16. The family consultant also noted that at that stage equal shared parental responsibility between the parties was not a feasible option.

17. In May 2019 the family was again assessed by the family consultant.

18. By that stage, the father had remarried and had a new born child with his new wife. The child of the proceedings aged nearly five at the time remained living with the mother who remained diametrically opposed to the father’s proposal that his time with the child graduate to an unsupervised basis.

19. The mother held the same concerns regarding the father’s abusive behaviour and the serious risk she says he posed in light of his religious views and the declared “religious ruling”. 

20. In his interview with the family consultant, the father reiterated his genuine interest in developing a relationship with the child as she grows older and acknowledged that although his interim contact with her had stopped for about six months when he returned to Country B, he is confident that since resuming the supervised visits “the gains of the past would soon be re-stablished”.

21. The family consultant recognised that the father seemed “sincere” when discussing views and following the child’s observation with him opined that the child appears to have developed “greater trust” in her father and feels much more “secure” with him than when previously assessed in 2018.  

22. The mother also told the family consultant that the child talked about her father “in a positive way” at home, but said she was unsure whether the child realises he is her father. She also told the family consultant that while she acknowledges the father may hold some love for the child, his religious views “override any personal feelings”.

23. The family consultant’s primary recommendation was that the Court determine whether or not the child would be at risk of physical harm if she were to spend supervised time with the father. He urged that where it is found that the father poses no risk of harm, gradual increases in the hours leading to full days and eventual overnights is appropriate, provided that the child is equally supportive. On the contrary, if it is determined that the father poses a risk of harm to the child, it is recommended that supervised contact continue indefinitely in accordance with the mother’s proposal.

Parenting

What are the relevant matters in determining the child’s best interests?

1. The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. Section 61DA of the Act provides that when making a parenting order, 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.

6. The presumption relevantly does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)…

   c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

7. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

8. Having regard to the evidence outlined above, the Court is satisfied that the father has perpetrated family violence towards the mother in the course of their relationship and shortly after their separation. Against this background of family violence, the presumption shall not apply.

9. It is also readily apparent that the mother remains unshaken in her fears relating to the father and his behaviour towards her and the child.

10. In a letter addressed to the Department of Immigration and Border Protection sent from a hospital social worker engaged with the mother, it was noted that:

    [The mother]…expressed feeling tormented by the ongoing patterns of violence she has experienced which has highly impacted her emotional and psychological well-being... [The mother] voiced having difficulties feeling safe in her home and in public areas as she is very concerned of her partner’s violent intentions. [The mother]’s basic needs have been affected as she finds it difficult to sleep and eat due to elevated anxious moods and having constant fear… (sic)

11. When interviewed by the family consultant in 2018, it was noted that the mother continues to display strong apprehension about the father’s motivation and propensity for violence. It also appeared in both assessments that both parties remained in an acrimonious dispute relating to religious issues.

12. In these circumstances, in which it is clear that there exists no parental relationship to date and there is little prospect of cooperative decision-making between the parties, the Court is satisfied that the order sought by the mother and supported by the ICL that she have sole parental responsibility is in the child’s best interests.

Best Interests

The Primary Considerations: s 60CC(2)

1. The primary considerations 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.

2. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

Section 60CC(2)(a) – “meaningful” relationship

1. In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:

   … the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…

3. Since birth the mother has been the child’s primary carer and it is readily apparent that the child’s primary attachment is to her. Along with members of the maternal family, the mother has at all times been responsible for the child’s day-to-day needs which has ensured a meaningful relationship between her and the child.

4. The father’s relationship with the child on the other hand, is strained. The father did not spend time with the child until some years after her birth, and although some contact has taken place since 2017 pursuant to interim orders, there has been considerable periods of no contact resulting from the father’s frequent returns to his home country. Accordingly, the child’s time with the father has been sporadic and inconsistent.

5. While the family consultant noted in his assessment of the father in 2018 that the father seemed “genuine in motivation to form a relationship with his daughter”, on interview he knew little of the child’s current routine and circumstances apart from mentioning she likes painting, blowing bubbles and eating strawberries.

6. Following the father’s observation with the child, the family consultant concluded that there was “barely a relationship between [the father and child], no significant attachment shown from [the child] and parenting inexperience evident on the father’s part”. The family consultant also opined:

   …[The father] needs to develop greater knowledge and proficiency if he is to achieve a strong relationship with [the child]. [The child] shows no obvious attachment to him at the present time and is likely confused by his recent appearance in her life.

7. Although when assessed the second time in May 2019 the family consultant observed some improvement in the father’s relationship and interaction with the child, at present the child spends no time with the father. The father’s supervised visits ceased in July 2019 and it would follow that the intervening period between then and now presents difficulties in reinstituting the child’s relationship with him, much less a meaningful one. This is particularly so given the family consultant’s evidence that it would take a “considerable period” for the child to develop a positive relationship with the father.

8. The father’s stated intention of caring for the child and his desire to “build” a meaningful relationship with her also appears at odds with his disengagement in the proceedings and formally withdrawing his application for time with her.

9. Despite the mother’s strong misgivings about the father, she appeared to actively facilitate the child’s supervised time with him pursuant to the previous interim orders. When discussing the child’s future relationship with the father in her interviews with the family consultant, the mother stated she is not “opposed in principle” but remains extremely concerned for the child’s welfare should unsupervised visits occur.

10. In the circumstances, it is clearly appropriate to make orders that ensure the child remains in the mother’s primary care.

11. While the benefit to the child of having a relationship with the father is less clear, in her exercise of sole parental responsibility the mother may choose to support the father developing a relationship with the child where she is confident that he does not pose a risk of harm to the child or where she believes that it is, otherwise, in the child’s best interests.

Section 60CC(2)(b) – need to protect

1. This consideration relating to the need to protect the child from harm is to be given greater weight than the benefit to the child of having a meaningful relationship with both parents.  

2. This is a determinative consideration in these proceedings given the mother’s evidence of the father’s history of family violence including emotional and sexual abuse towards her, and the serious threats of death made by him towards the mother and child relating to his strong religious views.

3. The Court accepts the submission made by the mother that the family remains threatened by the father’s abusive conduct and to a large extent his strict adherence to his particular faith that may “oppress and control” the child.

4. Throughout the proceedings the mother did not resile from her grave concerns that she and the child are in a vulnerable position due to the level of lethality displayed by the father in the past and the possibility that the father (including the paternal family) may honour the religious ruling that death be imposed where devotion to the particular religion is not observed.

5. Following separation, the mother went so far as organising through social workers in the hospital a safety plan for the child’s birth and took positive steps to apply for an AVO against the father as well as to have his visa application in Australia revoked.

6. In both interviews with the family consultant the mother relayed the strong theme of violence perpetrated by the father in the family home and described her actual fears that the child would be “murdered” by the father or abducted by him out of the country. As outlined earlier, the family consultant was of the view that if the mother’s version of events is accurate the father is likely an emotionally unstable individual, whose religious fanaticism presents “a real threat” to both mother and child.

1. On this basis, the Court is satisfied that not only does the father pose an unacceptable risk of physical and psychological harm and family violence to the child, but that it is in the child’s best interests to safeguard her from exposure to parental conflict stemming from the mother’s mistrust of the father that is likely to occur if the child’s relationship with her father was to continue.

The additional considerations: s 60CC(3)

1. Section 60CC(3) sets out the additional considerations:

   (a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)The nature of the relationship of the child with:

   i)Each of the child's parents; and

   ii)Other persons (including any grandparent or other relative of the child);

   (c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:

   i)To participate in making decisions about major long-term issues in relation to the child; and

   ii)To spend time with the child; and

   iii)To communicate with the child;

   ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   i)Either of his or her parents; or

   ii)Any other child, or other person (including any grandparent or other relative of the child);

   iii)With whom he or she has been living;

   e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   f)The capacity of:

   i)Each of the child's parents; and

   ii)Any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   h)If the child is an Aboriginal child or a Torres Strait Islander child:

   i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   ii)The likely impact any proposed parenting order under this Part will have on that right;

   i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   j)Any family violence involving the child or a member of the child's family;

   k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   i)The nature of the order;

   ii)The circumstances in which the order was made;

   iii)Any evidence admitted in proceedings for the order;

   iv)Any findings made by the court in, or in proceedings for, the order;

   v)Any other relevant matter;

   l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and

   m)Any other fact or circumstance that the court thinks is relevant.

2. Many of the considerations above are relevant in the context of the background matters discussed. These considerations as discussed below as a whole support the orders made.

3. The child of the proceedings was of a young age in both assessments with the family consultant. As such she was too young to be meaningfully interviewed.

4. The child has a close and loving relationship with the mother who has been her primary carer since birth. It would appear that the child also enjoys a close relationship with the maternal family with whom she and the mother currently reside.

5. As discussed earlier, the child’s relationship with the father has at no stage been meaningful. Quite apart from the fact that the father did not endeavour to spend time with the child until three years after her birth, the father has not actively participated in decision-making relating to her. Despite some months of supervised contact with the child, the father has failed to commit to the interim parenting arrangement due to frequent returns to his home country where it appears he has started a new family. Although it appeared from his interviews with the family consultant that he had a genuine interest in caring for the child, he has not displayed a willingness to meet his responsibilities of parenthood including that when the mother was pregnant with the child he did not financially support her in any childbearing expenses and was opposed to the mother’s expenditure in this regard claiming it to be “too excessive”. Further, he did not pay child support for the child until recently because “the mother did not ask him to”.

6. By his disengagement in both the child’s life and these proceedings commenced by him, the father has also failed to take the opportunity to spend time with and make decisions for her in the future. This casts doubt on his overall capacity to maintain the child and be proactive in fulfilling his parental obligations.

7. There is no question as to the mother’s capacity to meet the child’s daily care and be properly attuned to her needs. Since birth, she has been largely financially responsible for the child, and with the financial and emotional support from the maternal family, has provided the child with a stable home environment.

8. As early as prior to the child’s birth, the mother has shown protective qualities, for example in consulting various services and doctors for advice and organising with social workers a safety plan for when the child was to be born. Throughout the proceedings she was also consistent in her proposal for the child’s time with the father, that although she was agreeable with the child getting to know her father she insisted that such time in the future continue indefinitely on a supervised basis. The mother has also engaged in counselling to address trauma issues with her experience of the father in order to care for the child in a child-focused manner. One social worker engaged with the mother noted:

   [The mother] has good insight into the impact that the intimate partner violence has towards her welfare but particularly for their newborn child… [the mother] has taken proactive initiatives in taking action to protect her baby, family and herself…she had applied for an Apprehended Domestic Violence Order…[and has engaged in] the Staying Home Leaving Violence Service and the Women’s Domestic Violence Court Advocacy Service.

9. Unlike the mother, the father’s history of family violence and the violent threats made by him towards the mother and the child makes it doubtful that he has the capacity to be properly attuned to the needs of the child, let alone act protectively of her. Again, while the family consultant observed some positive interaction between the father and the child in his most recent assessment of the family, as outlined above, the need to protect the child from harm is given primacy in the proceedings and is supportive of the orders sought by the mother.

10. The orders proposed by the mother and supported by the ICL would see a maintenance of the status quo for the child with her mother as primary carer.

11. The mother’s proposal would also be the least likely to lead to the institution of further proceedings given the father has withdrawn his application and has since disengaged in the proceedings.

12. A consideration of the s 60CC factors and the reality that the child is virtually estranged from the father at this point in time supports the making of orders as sought by the mother as being in the best interests of the child.

13. The mother has also sought that the father be restrained from removing the child from the country and from commencing proceedings for a passport for the child with the Country B Consulate or any other relevant Country B government department. Having regard to the father’s propensity to act violently, evidence that he has made persistent threats to harm the mother and child in accordance with strong religious views linked to a sect of faith found in his home country, and the mother’s unshaken fear of same, the Court is satisfied that such orders are proper for the mother and child’s protection.

14. The mother also sought orders which would permit her to obtain a travel document for the child without first obtaining the consent of the father. The holding of sole parental responsibility does not entitle that party to obtain a passport for a child absent the consent of the other parent. In the circumstances of this matter where the father has not meaningfully participated in the child’s life, it is proper for the mother to be able to obtain a passport for the child without the consent of the father and to be able to travel with the child as she wishes.

15. All the aforementioned considerations are indicative of orders being made in the best interests of the child as sought by the mother.

16. Orders will be made accordingly.

I certify that the preceding one hundred and thirty two (132) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 1 September 2020

Associate: 

Date:  1 September 2020