Fogarty & Bashir
[2024] FedCFamC1F 632
•6 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fogarty & Bashir [2024] FedCFamC1F 632
File number(s): SYC 3011 of 2021 Judgment of: BEHRENS J Date of judgment: 6 September 2024 Catchwords: FAMILY LAW – PARENTING – Where matter is heard on a “undefended” basis – Where father’s response has been struck out for want of prosecution – Where mother and Independent Children’s Lawyer seek orders for no time with the father – Where father has been convicted of multiple offences of family violence against the mother – Where father has used controlling and coercive behaviour against the mother – Illicit drug use – Factors present which increase the risk of lethality – Father has had a limited relationship with the children – Father has little to offer the children – Mother has good parenting capacity – Where orders made for the mother to have sole parental responsibility – Where orders made restraining the father – Where orders made for the father to spend no time with the children – Where orders are made for the father to pay the costs of the Independent Children’s Lawyer Legislation: Australian Passports Act 2005 (Cth) s 11(1)(b)
Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CG, 62B, 65DA(2), 68B, 102NA(1)(c)(i), 114AB(2), 117(2)(a), 117(5)
Crimes (Administration of Sentence) Act 1999 (NSW) s 77
Division: Division 1 First Instance Number of paragraphs: 54 Date of last submission/s: 6 September 2024 Date of hearing: 6 September 2024 Place: Sydney Solicitor for the Applicant: Gerard Kell, Gerard Kell & Co Solicitor for Respondent: Litigant In Person Counsel for the Independent Children's Lawyer: Ella Dalrymple Solicitor for the Independent Children’s Lawyer: Farah Lawyers ORDERS
SYC 3011 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FOGARTY
Applicant
AND: MR BASHIR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BEHRENS J
DATE OF ORDER:
6 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The Applicant Mother has sole parental responsibility for making major long-term decisions for the children X born in 2016 and Y born in 2018 (together “the children”).
2.The children shall live with the Applicant Mother.
3.The children shall spend no time with the Respondent Father.
4.Pursuant to s 68B of the Family Law Act 1975 (Cth), the Respondent Father is hereby restrained by injunction from:
(a)Approaching or contacting the Applicant Mother by any means, including in person, in writing or by electronic communication;
(b)Approaching or contacting the children or either of them by any means, including in person, in writing or by electronic communication;
(c)Approaching the children’s residence, any school which the children or either of them attends from time to time, or any place where the children are, or either of them is, present;
(d)Approaching the Mother’s residence or place of employment;
(e)Causing any other person to do any of the things referred to in paragraphs (a)-(d) above.
5.The Applicant Mother, Ms Fogarty, is at liberty to travel with X born in 2016 and Y born in 2018 or either of them outside of the Commonwealth of Australia.
6.The Applicant Mother, Ms Fogarty, is permitted to obtain and/or renew Australian passports for X born in 2016 and Y born in 2018 without the consent of the Respondent Father.
7.Within 21 days of the date of these Orders, the Respondent Father pay Legal Aid NSW his share of the ICL’s cost being $2502.50.
THE COURT NOTES THAT:
A.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fogarty & Bashir has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
BEHRENS J
INTRODUCTION
This matter is listed before me today for an undefended hearing. It is a parenting matter only and concerns two young boys: X aged eight and Y aged six. The applicant is their mother, Ms Fogarty. The respondent is their father, Mr Bashir.
Y and X are represented in these proceedings by an Independent Children's Lawyer, Ms Farah. Ms Dalrymple appeared for Ms Farah at the undefended hearing today.
PROCEDURAL HISTORY
The matter has a long history which I do not need to detail, save for the following:
(a)The litigation commenced in April 2021 when Ms Fogarty filed an Initiating Application seeking financial orders. She subsequently joined parenting matters. Mr Bashir did not file a Response until August 2022.
(b)The matter had previously been listed for undefended hearing or potential undefended hearing on 4 August 2023 and 30 November 2023, but on both of those previous occasions there was agreement to vacate the undefended hearings. On the second occasion this was to enable a Family Report to be obtained.
(c)At the commencement of the proceedings, Mr Bashir was legally represented, and at one stage had retained counsel. However, since the filing of a Notice of Ceasing to Act on 24 June 2021, Mr Bashir has been self-represented in these proceedings.
(d)On 2 February 2024, Mr Bashir was present in Court representing himself when procedural orders were made, including for the preparation of a Family Report and for the parties to file various documents prior to a compliance and readiness hearing on 9 August 2024.
(e)Both parties were interviewed for the purposes of a Family Report: Ms Fogarty on 21 May 2024 and Mr Bashir on 24 May 2024. The Court Child Expert also talked with Y and X, and they were observed with their mother. The Court Child Expert was not able to observe the boys with their father because he was at that time incarcerated on remand, having been charged with offences including offences of family violence against the mother.
(f)Orders have been made on four occasions pursuant to s 77 of the Crimes (Administration of Sentence) Act 1999 (NSW) requiring Mr Bashir to be brought before the Court by electronic means. Those orders were made on 16 July 2024, 19 July 2024, by me on 22 August 2024 and again when the matter was last before me on 26 August 2024.
(g)Mr Bashir did not file any material prior to the Compliance and Readiness Hearing on 9 August 2024. He was also not present in Court or represented on 9 August 2024. There was no evidence before me as to why that was the case, notwithstanding the order requiring him to be brought.
(h)On 9 August 2024, Justice Campton made orders striking out Mr Bashir’s response filed 12 September 2022 and listing the matter for an undefended hearing before me on 26 August 2024.
In anticipation of that hearing, the mother filed or otherwise provided documents in preparation for the undefended hearing on 26 August, namely:
·An affidavit in compliance with Order 3 of the 9 August 2024 orders, filed 19 August 2024 and subsequently refiled with the page order corrected on 22 August 2024;
·An Outline of Case, in compliance with Order 5 of the 9 August 2024 orders, filed 23 August 2024; and
·A Minute of Orders sought by the mother was emailed to my Associate in advance of the hearing.
The Independent Children’s Lawyer filed or otherwise provided documents in preparation for the undefended hearing, namely:
·An Outline of Case, in compliance with Order 5 of the 9 August 2024 orders, filed 23 August 2024;
·A Costs Notice, filed 25 August 2024; and
·A Minute of Orders sought, emailed to my Associate on 25 August 2024 in advance of the hearing.
While there are some differences between the orders sought by the mother and those sought by the Independent Children’s Lawyer, in broad terms both the Independent Children’s Lawyer and the mother are seeking orders that the mother have sole responsibility for making major long-term decisions for Y and X, that they live with her and have no contact with their father, and that there are various restraints on the father.
On 26 August 2024, Mr Bashir attended Court by electronic means from a correctional facility.
At that Court event, I explained to Mr Bashir the nature of an undefended hearing. I explained that an undefended hearing does not mean that I automatically make the orders sought by the mother or the Independent Children’s Lawyer. I explained that he was entitled to tender documents but that otherwise the evidence before me was the affidavit of the mother, the Family Report and documents proposed to be tendered by the Independent Children’s Lawyer, including the earlier Child Impact Report. I explained that he was entitled to make submissions as to what orders were in Y’s and X’s best interests based on that evidence. I also explained that I can make orders which are different from those sought by the Independent Children’s Lawyer or the mother, provided I give everyone an opportunity to make submissions about the orders I am considering making. I explained to Mr Bashir that he would not be able to cross-examine the mother because of the operation of Family Law Act 1975 (Cth) (“the Act”) s 102NA(1)(c)(i) and in circumstances where, in 2021, he had been convicted of family violence offences against the mother. He has subsequently been convicted of further offences against the mother.
Mr Bashir sought and was given leave to make an oral application for an adjournment.
Mr Bashir told the Court that he expected to be released from jail within the next few weeks and that he would attempt to find legal representation and would subpoena some documents to put before the Court. When he was asked what documents he would subpoena, he told the Court that he wanted to subpoena the mother’s medical records because he thought she was mentally ill. He was unable to tell me about any concrete steps he had taken to secure legal representation.
I initially refused the adjournment, but it then became clear that Mr Bashir had not received the recently filed documents in the matter and was not therefore even on notice as to the specific orders sought by the Independent Children’s Lawyer and the mother. In those circumstances, I granted Mr Bashir a short adjournment to today. My Associate emailed the relevant documents to the corrections authorities, and Mr Bashir was provided with those documents in hard copy on the screen in Court on 26 August. He subsequently confirmed he had received-
·Affidavit of the mother and its annexures, filed 22 August 2024;
·Child Impact Report dated 14 November 2024;
·Minute of Proposed Order sought by the mother;
·Outline of Case on behalf of the mother;
·Tender Bundle of the Independent Children’s Lawyer;
·Outline of Case of the Independent Children’s Lawyer; and
·Minute of Proposed Order sought by the Independent Children’s Lawyer.
I made a further order pursuant to s 77 of the Crimes (Administration of Sentence) Act 1999 (NSW) requiring Mr Bashir to be brought before the Court by electronic means in the event he remained incarcerated today. I listed the matter for hearing by Teams. I explained to Mr Bashir that he would need to attend by Teams. I explained to him that he should read the documents and work out what he wanted to say to me about the orders that were in Y’s and X’s best interests based on the evidence before me.
Mr Bashir had been released from the correctional facility before today and attended today, representing himself and made submissions which I have summarised below in my reasons.
THE EVIDENCE AND ORDERS SOUGHT
The mother sought the following orders by her Amended Minute of Proposed Orders, emailed to my Associate on 5 September 2024 (as in original):
(1)All previous parenting orders shall be discharged.
Parental Responsibility
(2)The mother Ms Fogarty ("the mother") shall have sole parental responsibility for making decisions relating to major long-term issues in respect of the children: X, male, born in 2016 and Y ("Y"), male, born in 2028 [sic], collectively referred to as the "the children".
(3)In her exercise of parental responsibility, the mother shall:
(a)Notify the father Mr Bashir ("the father") in writing of any proposed decision relating to a major long-term issue in respect of the children, or either of them.
(b)Ensure that such notification is given to the father in writing, not less than seven (7) days before a final decision is made, except in the case of an emergency.
(c)Take into consideration, although not be bound by, any views expressed by the father in respect of such proposed decision.
(d)Ensure that she informs the father of any decision she has made in writing within seven (7) days of such decision.
(4)The mother is not required to consult the father when making decisions relating to issues that are not major long-term issues in respect of the children, X, born in 2016 and Y, born in 2028 [sic] while they are in her care under this order.
Live with
(5)The children shall live with the mother.
Spend time with
(6)That the children spend no time with the father until they each attain the age of 18 years.
Communication with the children
(7)The father has no communication with the children until they each attain the age of 18 years.
Communication between the parents
(8)Unless otherwise agreed in writing, communication between the father and the mother shall be in writing directed to the parties legal representative/s.
Notification
(9)The father shall, within 24 hours of any change of email or postal address, provide the mother's legal representative with:
(a)the email and or postal address to be used for the purpose of parental communication.
Australian travel documents
(10)Pursuant to section 11(1)(b) of the Australian Passports Act (Cth) 2005, the mother be permitted to apply for, obtain and or renew an Australian Passport or any necessary travel document to enable the children to travel internationally not withstanding [sic] that the father has not signed the passport application form.
Travel
(11)The children be permitted to travel internationally without the permission of the father
Restraints and injunctions
The mother and father
(12)The mother and the father shall be restrained from abusing, belittling, criticizing or denigrating the other parent, members of the family, and/or any other person with whom the other parent may maintain a genuine domestic relationship with directly to, or in the presence of the children or from permitting any other person to do so, and from discussing these proceedings, or any aspect of them with the children and from making critical or derogatory remarks in relation to the other parent and/or referring in any way to the current proceedings on social media.
The father
(13)The father, his servants and/or agents be and are hereby restrained by injunction from taking, sending, or attempting to take or send the children from the Commonwealth of Australia. This order ceases to have effect upon each of the children attaining 18 years of age.
(14)All officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders.
(15)The father shall be restrained from exposing the children to violence including physical or verbal threats or intimidation whether such violence, threats or intimidation is directed at the children, the mother, or any members of either parent's household and/or any person with whom the mother may maintain a genuine domestic relationship.
(16)Except as otherwise specified in this Order, pursuant to s 68B of the Family Law Act 1975 (Cth), the father, Mr Bashir, born in 1980, is restrained and an injunction shall issue, prohibiting him:
(a)Approaching the children or either of them, or attending upon or being within one hundred (100) metres of the children's place of residence or employment, child-care service, pre-school, school, or extracurricular activity location in which the children attend or participate from time to time;
(b)Dwelling in or frequenting the locale of the children's place of residence, employment, school, or extracurricular activity;
(c)Contacting or communicating with or attempting to communicate with the children or either of them, by any means, including by third party, or by mail, by telephone, or electronic platform such as SMS, iMessage, Facebook, Skype, Instagram, or other social media;
(d)Removing or attempting to remove the children or either of them from the care of the mother or child-care service, pre-school or school or any other person with whom the mother may maintain a genuine domestic relationship or the mother's nominee or including by third party; and
(e)Taking the children or either of them into his care or having the children or either of them in his care.
(17)Pursuant to section 68B of the Family Law Act 1975 (Cth) the father is restrained by injunction from:
(a)Approaching the mother or attending upon or being within one hundred (100) metres of the mother's place of residence or employment;
(b)Dwelling in or frequenting the locale of the mother's place of residence or employment; and
(c)Contacting or communicating with or attempting to communicate with the mother directly by any means, including by third party, or by telephone, electronic platform such as SMS, iMessage, Facebook, Skype, Instagram or other social media with the exception that communication between the parents about matters directly related to the welfare of the children shall be conducted through the party's legal representatives or as agreed in writing or permitted by an order or directions under the Family Law Act 1975 (Cth).
These orders sought differed only marginally from her previous Minute, emailed to my Associate prior to the previous date for an undefended hearing.
The Independent Children's Lawyer sought the following orders by her Minute of Proposed Orders, emailed to my Associate on 25 August 2024 (as in original):
(18)That the mother has sole parental responsibility for the children X (male) born in 2016 and Y (Male) born in 2028 [sic].
(19)That the children shall live with the mother.
(20)That the children spend no time with the father.
(21)Pursuant to Section 68B of the Family Law Act 1975 (Cth), the father is hereby restrained by injunction from:
(a)Approaching or contacting the Applicant (mother) by any means, including in person, in writing, or by electronic communication.
(b)Approaching or contacting the children, by any means, including in person, in writing, or by electronic communication.
(c)Approaching the children's residence, any school which the children attend from time to time, or any place where the children may be present.
(d)Approaching the mother’s residence or place of employment.
(e)Causing other persons to remove the children or either of them from the care and control of the Applicant Mother; or any other person with whom the Mother may maintain a genuine domestic relationship or the Mother's nominee.
(f)Relocating the children or either of them outside the Sydney Metropolitan area.
(22)That the Applicant Mother is at liberty to travel with the children outside of the Commonwealth of Australia and the Respondent father's consent to the issue of a passport to the children be dispensed with.
(23)That within 21 days from the date of these orders, the Respondent Father pay Legal Aid NSW his share of the Independent Children’s Lawyer’s cost [sic] being $2,502.50.
At the hearing today, counsel for the Independent Children’s Lawyer indicated that it was the Independent Children’s Lawyer's submission that the restraints could not be made, given s 114AB(2) of the Act. I deal with that matter in my reasons, but I indicate here that s 114AB(2) does not prohibit me from making the restraints sought. I have also considered whether they are necessary or appropriate in circumstances where an Apprehended Domestic Violence Order (“ADVO”) is in place for five years and contains similar constraints. I have decided that that is appropriate to cover the period after the ADVO expires, in the event that there is no extension to the ADVO.
The Court has the benefit of a recent, comprehensive and nuanced Family Report which contains a clear recommendation in relation to the parenting orders that should be made for X and Y. Both parents were interviewed for the purposes of the Family Report and Y and X were talked with and observed with their mother. The Court Child Expert acknowledges that the interview with Mr Bashir was shorter than the interview with Ms Fogarty. She also acknowledged there may have been some language issues with Mr Bashir. The Court Child Expert records in the Family Report that Mr Bashir speaks English and emigrated to Australia to complete his final year of high school, and subsequently post graduate studies (at [28]).
The recommendation of the Court Child Expert at [81] of the Family Report is that, unless evidentiary material should indicate otherwise, orders be made for X and Y to spend no time with their father. Since the finalisation of the Family Report, as set out below, Mr Bashir has been convicted of further offences against Ms Fogarty.
The Family Report was received into evidence and marked ICL 1. The Child Impact Report dated 14 November 2022 was received into evidence and marked ICL 2.
The following further documents were received into evidence:
·Independent Children’s Lawyer’s Tender Bundle, containing records of NSW Police and Local Court (ICL 3);
·Final Apprehended Domestic Violence Order dated mid-2024 (M1); and
·Advice of Court Result for the father dated late 2024 (M2).
The father tendered a statement for a bank account in the mother's sole name for the period 28 August 2018 to 28 February 2019. He told me its relevance is that it shows, contrary to the mother's assertion, that he did not financially control her because he gave her money, including "pocket money". I received that statement into evidence and marked it F1.
The mother's Case Outline was filed 23 August 2024 was marked M3. The mother's Minute of Orders sought, which was emailed to my Associate on 5 September 2024, was marked M4. The Independent Children’s Lawyer's Case Outline was marked ICL 4. The Independent Childre’s Lawyer's Minute of Orders Sought was marked ICL 5.
Also admitted into evidence was the affidavit of Ms Fogarty filed 22 August 2024 with its annexures ("the mother's affidavit"). While Ms Fogarty's evidence was not tested under cross examination, in her affidavit she provided a detailed, consistent and coherent account of the history of her relationship with Mr Bashir and his behaviour towards her, and was frank about her own difficulties, including some historic drug use. Her evidence has also been consistent across the history of this matter, including in her accounts to the Court Child Expert. I unequivocally accept her evidence.
WHAT PARENTING ORDERS ARE IN Y’S AND X’S BEST INTERESTS
I am required to make orders which are in Y's and X's best interests (s 60CA of the Act).
In working out what is in their best interests, I am required to have regard to the factors in s 60CC of the Act.
Neither X nor Y is an Aboriginal or Torres Strait Islander child, so I have left out the considerations that apply to such children.
FAMILY LAW ACT 1975 (CTH) – SECTION 60CC
Section 60CC(1)(a) of the Act provides that the general considerations set out in s 60CC(2) are to be taken into account when the Court is determining the best interests of the child, these being:
(a)what arrangements would promote the safety (including the safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
Safety
The first factor that I am required to have regard to is what arrangements would promote the safety, including the safety from being subjected to or exposed to family violence, abuse, neglect or other harm of the child and each person who has their care, whether or not the person has parental responsibility for the child. In considering safety I must, pursuant to s 60CC(2A) of the Act, have regard to any history of family violence, abuse or neglect involving the children or Ms Fogarty. I must also have regard to any family violence order that does or has applied to any of them.
Additionally, s 60CG of the Act requires me, to the extent possible and in a manner which is consistent with the best interests of X and Y being the paramount consideration, to make an order which is consistent with any family violence order on foot and that does not expose any person to an unacceptable risk of family violence.
Mr Bashir made the following submissions that were relevant to the matter of safety, in summary:
·The domestic violence was an isolated incident only;
·He is not a violent person;
·He has learnt his lesson and it won't happen again; and
·There was an ADVO in place for two years and he never breached it.
I have taken account of those submissions.
The evidence establishes the following matters relevant to safety:
(a)Mr Bashir was convicted of offences against Ms Fogarty in early 2021. He was sentenced to a term of imprisonment to be served by way of an Intensive Correction Order in the community. That sentence commenced in 2021 and expired in 2022 (ICL 3, pages 27-33);
(b)A provisional ADVO granted in early 2021 protecting the mother and the children from the father was made final in late 2021, following his conviction for these offences. This ADVO expired in late 2023 (mother's affidavit, at [24]-[25]);
(c)In mid-2024, Mr Bashir was convicted of further offences in which Ms Fogarty was the victim. He was sentenced to a Community Correction Orders, to commence in mid‑2024 and to expire in early 2026 (Advice of Court Result, M2). An ADVO (M1) protecting the mother, children and maternal grandmother from the father was made by the Magistrate in the criminal proceedings. Among other things, and subject to the usual exceptions, it prohibits the father from contacting or approaching the mother or the children. It will expire in mid-2029;
(d)The offences referred to in paragraph (c) occurred in circumstances which included Mr Bashir placing a recording device in the home where Ms Fogarty and the children were living. Mr Bashir admits to this at [39] of the Family Report, although he says that Ms Fogarty consented to this and that he had good reason to do it because he needed to check on the care of the boys. He has of course subsequently been found to the criminal standard of proof to have committed the offences;
(e)Mr Bashir has used behaviour towards Ms Fogarty, which has had significant impacts upon her and upon the boys in addition to those matters referred to above. This includes verbal abuse, further physical violence, assault, (Family Report at [30]-[34]), threatening to kill her and the boys (Family Report at [30]) and stalking. Mr Bashir has also engaged in financial abuse, including by transferring $850,000 from the party's joint bank account and apparently disposing of it without any consultation with Ms Fogarty and in ways which have severely impacted her access to financial resources (mother’s affidavit at [39.2]). Poignantly, she also told the Family Report writer about him having taken a small amount of money she had accidentally transferred to a joint account and which she needed to meet the needs of herself and the boys;
(f)Ms Fogarty has at times been deeply fearful as a result of this conduct, such that at one stage she left paid employment so that she could remain close to the children (Family Report at [37]). I accept her evidence at [39.5] of her affidavit that she remains very afraid and intimidated by the father as a result of his behaviour towards her;
(g)Mr Bashir takes no responsibility for his behaviour, nor for the impacts which it has had on the mother and the children. Rather, he continues to blame Ms Fogarty, and to criticise her parenting. The Court Child Expert opines at [27] of the Family Report that the father "was very blunt in his choice of words … and deeply contemptuous of [Ms Fogarty]", giving her no credit for the difficult parenting she has had to undertake in the circumstances. To the Court Child Expert he expressed the view that Ms Fogarty would still make the choice to depart from the children's lives the moment that he gives her money (Family Report at [72]);
(h)Mr Bashir has had an historical interest in firearms and has owned firearms. He took toy guns for the boys to the supervised contact centre and told them he used to own guns (Family Report at [59]);
(i)Mr Bashir has a history of illicit drug use, at least including illicit drugs, and has also been charged with offences relating to the use of illicit drugs. He has not undertaken a drug test for the purposes of these proceedings. He does not take responsibility for his drug use nor have insight into its potential impact on his parenting, reflecting to the Court Child Expert that leaving the children in the care of their paternal grandmother during 2020 whilst he used drugs was due to a need to "work out the marriage", and that the children's presentation during his most recent supervised visit indicated that this drug use appeared to have had "'minimal impact'" (Family Report at [60]). I was also referred this morning to the Child Impact Report (ICL2) where the father told the Child Court Expert that in fact his taking of illicit drugs was a positive (at [39]). This all, needless to say, demonstrates no insight into the impact that drug use has upon parenting and general functioning, and can give me no faith that he will not continue to use illicit drugs. Indeed, Mr Bashir told the Child Court Expert that he could choose to use illicit drugs again following his release from jail (Family Report at [71]).
The Court Child Expert opines at [72] of the Family Report that this and other behaviour from Mr Bashir is consistent with the type of family violence which can broadly be described as a pattern of coercive and controlling behaviour. I so find. I note also that since the Family Report, Mr Bashir has been convicted of other offences against Ms Fogarty which are consistent with a pattern of coercive and controlling behaviour including stalking and monitoring her using technology.
The Court Child Expert opines that these matters give rise to serious safety concerns for the children and Ms Fogarty if time is to occur unsupervised, and that there are a number of factors on the evidence which "increase the level of risk for lethality, including stalking and choking offences, threats to kill, and an interest in and prior ownership of firearms" (Family Report at [72]).
Given the findings I have made above, I find that there are a number of unacceptable risks to the boys and their mother, other than in the context at least of professionally supervised time, including but not limited to:
(1)The prospect that the father would use unsupervised time with the children as a vehicle for resuming coercive control of the mother through, for example, presenting the children with self-serving versions of events. That was a risk identified by the Court Child Expert (Family Report at [76]);
(2)That unsupervised time with the children may provide the father with opportunities to physically harm the children, for example as a result of his frustration towards the children’s behaviour or as a means of “vengeance” towards the mother, and that such risk includes a risk of lethal violence (Family Report at [77]).
I have then considered whether I should make an order for the children to spend time with the father professionally supervised. I should note, however, that no party nor the father proposed such an order.
I have considered the impact on the mother of the children spending professionally supervised time with the father, and the impact, in turn, on the children of any such impact.
The Court Child Expert observed that court orders providing for the father to spend time with the children would not be in the children's best interests due to their need to receive care from a parent "who is not in a state of perpetual stress" (Family Report at [75]). In this respect, the Court Child Expert was informed by the mother's reported high levels of stress following the introduction of supervised time with the father, and opined that orders compelling the mother to interact with the father in a parenting capacity could induce stress at the possibility of abuse from the father, or retraumatise her by inducing recollections of his previous abuse (Family Report at [75]). I accept that evidence.
There are other matters which are contra-indicators to orders for professionally supervised time. The Court Child Expert referred to supervision reports and opined that the father's attitude towards such visits, illustrated by his regular lateness and engagement in inappropriate conversations with the children, were indicative of "resistance to supervision" (Family Report at [78]). In those circumstances, I find that professionally supervised time, which is the only time which could be safe, is not in the children’s best interests.
The children’s views
I am required to consider the views of the boys. They are currently aged eight and six. Their views are relevant notwithstanding their young ages.
To the Court Child Expert, the children were able to communicate, to some extent, their insights into the family dynamics and their wishes going forward. X talked positively about seeing his father at the contact centre, describing it as "pretty fun" and made reference to eating fast-food and playing games, and also expressed enthusiasm at the idea of going on outings and having phone calls with his father (Family Report at [65]). He however stated that he wanted to continue living with his mother, saying "life is fine and I have everything I could ask for" (Family Report at [65]). Y was noted to provide a limited description of family relationships and home life, and indicated that when he saw his father at the contact centre, "Dad was nice, we played games and he was happy to see us" (Family Report at [66]). The rationale Y provided for wanting to see his father again was "because he is my Dad" (Family Report at [66]). Whilst he was aware of the mother not wanting to see the father, he was unable to identify a reason (Family Report at [66]).
The Court Child Expert opines that the children's desire to see their father in the future may have been informed by their ability to eat fast-food and play games during the supervised visits, rather than a genuine sense of connection (Family Report at [73]). The Court Child Expert ultimately opined that the views of X and Y should be afforded little weight due to their age, lack of maturity and their limited understanding of their family circumstances and "what they were expressing", particularly in light of the few memories they hold of their father and limited opportunities to develop a relationship with him (Family Report at [79]). I accept that evidence, notwithstanding the father's submissions that, in summary:
(1)The boys want to see him;
(2)The boys don't understand what is going on; and
(3)The boys were delighted to see him at supervised time.
I do not doubt that those things are true, but I accept the Court Child Expert’s opinion that limited weight should be attached to X and Y’s views.
The children’s needs and the parents’ capacity to meet those needs
I am required to consider the developmental, psychological, emotional and cultural needs of each of X and Y and the capacity of, in turn, Ms Fogarty and Mr Bashir to meet those needs.
Mr Bashir made the following submissions in relation to these matters:
(1)He has been a good and responsible husband and father and supported the family;
(2)He provided them with a good life prior to business difficulties that arose as a result of COVID;
(3)He provided them with a good home;
(4)He worked hard;
(5)He is well educated, having studied and is therefore well able to encourage the boys in their education;
(6)He wants to see the children grow up in the right way and to help them with that; and
(7)The mother needs his help to care for the children.
Based on the evidence before me I find that:
(1)Mr Bashir was minimally involved in the physical care of the boys during their infancy. He provided financially for them and for Ms Fogarty, including by engaging a nanny to assist in the children's care;
(2)Mr Bashir has not spent unsupervised time with Y or X since April 2021. Following the expiry of the ADVO, he had 10 supervised visits with them between November 2023 and March 2024, but was then arrested and incarcerated and the visits stopped;
(3)Mr Bashir was regularly late for supervised visits with Y and X and also involved them in inappropriate conversations during that time, despite being told by supervisors multiple times to refrain from doing so (Family Report at [44] and [59]). In particular, the father was reported to have spoken to the children about representing himself in future family law proceedings (Family Report at [59]);
(4)Ms Fogarty faced some significant challenges in her parenting of the boys after Y's birth and that parenting was made more difficult by Mr Bashir's behaviour towards her. Ms Fogarty engaged and continues to engage services and family and other support to assist her in the care of the boys and to address their needs;
(5)The boys are now settling down well and are well cared for by Ms Fogarty. She advised the Court Child Expert that the improvements in her mental health and her ability to dedicate more time to her children have resulted in notable improvements in the children's behaviour, such that, for example X is "'having no issues at school now'". The mother takes the children to extra-curricular activities and at the time of the Family Report was tutoring X herself after school (Family Report at [55]). I am satisfied that she well and ably meets the needs of the children in very difficult circumstances, notwithstanding early difficulties which were connected to the behaviour that Mr Bashir engaged in towards her (Family Report at [69]);
(6)Ms Fogarty and her parenting are likely to be adversely affected by having ongoing contact with or having to deal in any way with Mr Bashir. The Court Child Expert opines accordingly (Family Report at [58], [72] and [75]); and
(7)Ms Fogarty is providing the boys with access to their Australian and Country B cultures, including by encouraging them in their bilingualism.
I cannot be satisfied on the evidence that Mr Bashir has the capacity to meet the boys’ developmental, emotional and psychological needs. His behaviour in this matter suggests that he does not have the capacity.
The benefit to the children of a relationship with their father and paternal family
I am required to consider the benefit to X and Y of being able to have a relationship with their father and their paternal family, where it is safe to do so.
Mr Bashir made the following submissions in relation these matters-
(1)The boys need him;
(2)He misses the children so much;
(3)The boys need a father;
(4)He needs to see his children; and
(5)He will provide them with some sense of security.
It is certainly a significant matter to make orders which will mean that children will not have a relationship with their father, but I have decided that the only way in which X and Y could have a relationship with their father is through professionally supervised time, and that in itself carries with it the disadvantages for X and Y that I have referred to above. Given what I have found is Mr Bashir’s limited capacity to meet the needs of the children and what I find is his limited ability to put their interests ahead of his own, I am not satisfied that there would be any significant benefit to the boys from such a relationship with their father as they could have through professionally supervised time. I also find that there is an unacceptable risk that if the boys do spend time with their father, even professionally supervised, he may seek to undermine their relationship with their mother. The Court Child Expert opines that it is very important to the boys to have the continued support and parenting of a well-adjusted parent who feels safe, and again that is one of the reasons why I find there should be no time in this case (Family Report at [75]).
What orders are in Y’s and X’s best interests?
For the reasons set out above, I am satisfied that orders broadly in accordance with the orders sought by the Independent Children's Lawyer are in Y's and X's best interests.
I have considered whether to order, as Ms Fogarty seeks, that she be required to keep Mr Bashir informed about major long-term decisions she makes for Y and X. I find that the need for continuing contact with Mr Bashir carries with it an unacceptable risk of continuing (at least) “verbal” violence. I also find that the order requiring that Mr Bashir be kept informed about major long-term decisions carries with it unacceptable risks associated with Mr Bashir knowing where the children and Ms Fogarty live and where the children go to school.
I am satisfied that an order simply for the mother to have sole parental responsibility for making major long-term decisions for Y and X, without more, is in their best interests. That is the order sought by the Independent Children's Lawyer. I make that order.
I have considered whether I can make the restraints which are sought by the Independent Children’s Lawyer and the mother in light of the fact that a final ADVO has recently been made and is in force. That ADVO was applied for by the prosecutor as part of the criminal proceedings, and not by Ms Fogarty. I am satisfied therefore that s 114AB(2) of the Act does not prevent an application being made by the mother or the Independent Children’s Lawyer for the injunctions sought. I have not made injunctions which make reference to distance, as the mother sought, but rather put them in more general terms. This addresses the difficulty that it is likely the father may not know the relevant addresses. I am satisfied that the restraints sought by the Independent Children's Lawyer, with some minor modifications to the wording, are in the boys' best interests in the context of a matter where I have found there are unacceptable risks as set out above.
The Independent Children’s Lawyer seeks a modest cost order be made against the father in the sum of $2502.50. That is a modest amount of money. I am required to take into account, in making that decision, the matters set out in s 117(2)(a) of the Act, as well as s 117(5) of the Act. I have no evidence about the financial circumstances of the parties, other than the evidence about historical matters to which I have referred in these reasons. I am satisfied that it is appropriate that I make an order that Mr Bashir pay that modest amount of costs, particularly in circumstances where his conduct in these proceedings, in particular, his failure to comply with directions and rules, has led to the proceedings being extended, and to the fact that he has been wholly unsuccessful in these proceedings.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Behrens. Associate:
Dated: 20 September 2024
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