GANIM and LA BANCHI
[2015] FCWA 1
•16 JANUARY 2015
oJURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: GANIM and LA BANCHI [2015] FCWA 1
CORAM: CRISFORD J
HEARD: 14, 15, 16, 17, 22, 23 & 24 OCTOBER 2014
DELIVERED : 16 JANUARY 2015
FILE NO/S: PTW 226 of 2010
BETWEEN: MR GANIM
Applicant
AND
MS LA BANCHI
Respondent
Catchwords:
CHILDREN’S ISSUES – Where the children live with the mother – Where the father’s application is to spend time with the children and for the parties to have equal shared parental responsibility for the children – Where the mother seeks an order that she has sole parental responsibility for the children and for the father to have no contact with them – Where the children have not had any contact with their father for over six years – Where the Court does not consider that is in the children’s best interests for their parents to share parental responsibility – Where the Court declines to make orders for the father to spend time with the children as he poses an unacceptable risk to the children physically, psychologically and emotionally.
Legislation:
Family Law Act 1975 (Cth) s 60CA, s 60CC.
Category: Not Reportable
Representation:
Counsel:
Applicant: Ms S Auburn
Respondent: Ms N Hossen
Independent Children's Lawyer : Ms R Cohen
Solicitors:
Applicant: Robertson Hayles
Respondent: Reader Lawyers & Mediators
Independent Children's Lawyer : Legal Aid WA
Case(s) referred to in judgment(s):
B and B (1988) FLC 91-957
B and B (1988) FLC 91-978
Johnson and Page (2007) FLC 93-344
M and M (1988) 166 CLR 69
M and M (1988) FLC 91-958
McCall & Clark (2009) FLC 93-405
Sedgley and Sedgley (1995) FLC 92-623
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction
1Even before [Mr Ganim] (“the father”) and [Ms La Banchi] (“the mother”) married in August 2004 it was obvious that theirs would not be an easy journey together. The parties each have very close ties to their family of origin. The father has a Syrian Muslim background and the mother has an Italian Roman Catholic background. Their rich and diverse cultural heritages are not a readily navigable mix.
2When the parties separated on in April 2008 their daughter [Child A] was two and a half years old and their daughter [Child B] was around two weeks old. The children have not had any contact with their father since about that time. This is the nub of their dispute.
3The parties agree the children should continue to live with their mother.
4The mother seeks an order that she has sole parental responsibility for the children and that the father has no contact whatsoever with them. She describes the father as a monster.
5The father seeks that the parties have equal shared parental responsibility for the children. He seeks to spend time with them at his mother’s home under supervision. Initially he proposes a period of three hours each Sunday through an independent supervisory agency. He seeks that his extended family be involved in the supervised time. If all goes well he proposes that this time be extended to unsupervised alternate weekend visits. He also seeks orders for time on special days. The father says it is the divine right of children to see their father.
6After hearing the evidence of the Single Expert Witness, Jean-Pierre Menagé, the father’s counsel, Ms Auburn, proposed a slightly different arrangement based on his evidence. The Court was not provided with precise proposals save that the Court was told the father would do anything to enable him to form a relationship and spend time with the children.
7The Independent Children’s Lawyer, Ms Cohen, provided a minute of the orders she sought at the conclusion of the trial on 24 October 2014. Her orders were in line with those of the mother save for an order directing the mother to provide the father, via his mother, no less than three current photos of each child on two occasions per year.
The Law
8These child-related proceedings were conducted pursuant to Div 12A, Pt VII of the Family Law Act 1975 (Cth) (“the Act”) as amended by the Family Law Amendment (Shared Parental Responsibility) Act2006 (Cth). The legislation is strongly in favour of both parents being included in their children’s lives.
9Section 60CA makes clear that I must treat the child’s best interests as the paramount consideration. In doing so I will be guided by the relevant objects of the legislation and the principles underlying them.
10The proceedings were started by the father when he filed an application for final orders on 23 June 2010. As such I am obliged to apply the legislation that was in force at that time.
11The relevant stated objects aim to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
12In making parenting orders I am required to apply a presumption that it is in the best interests of any children for their parents to have equal shared parental responsibility. That presumption does not apply if there are reasonable grounds to believe that either parent has engaged in abuse of the children or family violence. If there are no reasonable grounds to believe there has been such violence or abuse, the presumption can only be rebutted by evidence to satisfy the court that it will not be in the children’s best interests for their parents to have equal shared parental responsibility.
13I will return to the issue of parental responsibility later in the judgment after the factual matrix has been canvassed.
14Section 60CC of the Act sets out how to determine what is in a child’s best interests. Section 60CC(1) provides that in determining what is in a child’s best interests the Court must consider the matters set out in s 60CC(2) being the primary considerations and also the matters set out in s 60CC(3) being the additional considerations. To a certain extent a number of the considerations overlap and there may be a need for dual consideration of some issues.
15There are two primary considerations. I consider each to be of the utmost importance in this case. The primary considerations here will define the final orders I need to make. I will now turn to those considerations in determining what would be most likely to promote the best interests of Child A and Child B:
•The benefit to the child of having a meaningful relationship with both of the child’s parents; and
•The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
16Amendments made to s 60CC apply in proceedings started after the commencement of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth). The amendments set out that in applying the primary considerations the court is to give greater weight to the second named consideration I have outlined above. There is no such mandate in the earlier legislation and as such, for this judgment, they are of equal importance.
17For the sake of convenience in this particular matter I will deal with the second noted primary consideration first. This relates to timing, not emphasis. I do so as I see this consideration as being the best vehicle to canvas the factual matrix in detail. This will define the background for the balance of my judgment.
The Families
18Given the importance of family to each of the parties it is useful at the outset to set out the composition of the respective families with some brief comment.
19I do not consider that the credibility of the parties is pivotal to my decision in this matter. However throughout the judgment and where appropriate I do make findings about the character of some of the witnesses.
20[Ms Cain] is the father’s mother. She is 56 years of age and has seven children. Ms Cain manages a shop in [Suburb A]. She is born of an Australian father and a Lebanese mother. She married [Mr A Ganim] in 1978. He came from Syria in the 1960’s. Ms Cain embraced Islam in 1986. During their marriage, until the death of Mr A Ganim in January 2001, the family often travelled to Syria including a stay for a one year period prior to Mr A Ganim’s death.
21After embracing Islam, Ms Cain participated in Arabic and Islamic studies. She presented as having a broad knowledge of Islamic practices and on the doctrine pertaining to Muslim women.
22The father was born in 1980. He and his twin brother, [Mr B Ganim], are now 34 years old. They have a close and supportive relationship. The father is presently on sickness benefits. He has previously worked as a baker and a security guard.
23The twins and their parents spent their early years in Sydney. They moved to Perth in February 1991. The twins were enrolled in [an] Islamic College.. Ms Cain deposes:
34.… It was a private school catering for predominately disadvantaged children of migrant or refugee parents, many of whom had low incomes and settlement problems due to language difficulties and few employment prospects.
35.Many of the refugee families were suffering post-traumatic stress disorder coupled with lack of family support. Many families had lost their relatives through death or separation due to the war.
24Ms Cain further deposes that the father was struggling to cope with the move from Sydney, his increased household responsibilities given the birth of further siblings and the early stages of puberty. She describes a history of the father being severely bullied at virtually all the schools he attended.
25The father and his brother had almost daily lessons in learning Arabic, the Qur’an and Islamic history from Mr A Ganim. Ms Cain says that her husband spent one to one and a half hours after early morning prayer four to five days a week teaching the boys and helping them to memorise the Qur’an verbatim. By all accounts A Ganim was a hard task master who kept a small cane next to him which he believed was a motivational tool. Ms Cain disagreed with this method but it appears A Ganim would not be dissuaded.
26Ms Cain deposes:
58He was loving and indulgent socially with our children but demanded strict obedience, in matters of routine and responsibility to perform duties. He became more rigid as he grew older and he felt that his large family needed strong discipline to succeed.
27[Mr C Ganim] was born in 1984 and he is currently aged 30 years. He is married to [Ms Gilde]. They have three children together and a child of Ms Gilde from a previous relationship.
28[Mr D Ganim] was born in 1987 and is aged 27 years. He is married to [Ms Burlington] and they have a daughter. [Ms E Ganim] was born in 1989 and is aged 25. She is now married with one daughter. She is the only female sibling of the father.
29[Mr F Ganim] was born in 1991 and is aged 23. He is recently married. [Mr G Ganim ] was born in 1998 and is aged 16. He is a student and lives at home with Ms Cain and the father.
30I have no doubt whatsoever that the Ganim family is very close and loyal to each other. The family was present throughout this difficult trial and they clearly support the father in him wanting to establish and maintain a relationship with his daughters.
31Despite their closeness, the family have had their difficulties both internally and within society.
32Although I was given less information about the background and origins of the [La Banchi] family there is no doubt, that in common with the [Ganim] family, they are close knit and have traditions stemming from Italy, their historic country of origin. Like the Ganim family their support and love for their daughter often distorted their account of both the history of the marriage and the troubles between the families.
33[Ms A La Banchi], a child care worker and the grandmother of the children, is married to [Mr B La Banchi] and has been for 34 years. She has five children, including the mother. The mother met her present husband [Mr Monk] in early 2010. They married in July 2011 and now have a young son, [Child C] who is almost three years old.
34Ms A La Banchi said she was tolerant of all religions and was careful to point out her difficulties with the Ganim family stemmed, not from their Islamic beliefs, but rather from their poor behaviour generally. Despite this I accept there were times when her actions belied these words. She was concerned about the speed at which her daughter embraced Islam and the changes it then wrought in her. She certainly disliked the personalities that comprised the Ganim family unit but she also displayed some ignorance and intolerance towards their beliefs especially if they impacted on her daughter.
35The mother’s father, Mr B La Banchi did not give evidence. He was present in Court for a portion of the trial and his demeanour in the gallery made it clear that he held the Ganim family in contempt. I accept it is likely he made the derogatory comments attributed to him about his daughter wearing a head scarf and gown such as “take that rag off your head” and “be normal”. I also accept the evidence of the father’s witness [Ms Anni] that she had heard him say words to the effect the Ganim family were terrorists.
36[Ms C La Banchi], the mother’s sister, gave evidence. Of all the witnesses she was the most measured and instructive. She is close to her nieces and had insight into the past and the present dynamics of the parties.
37Mr Monk has an extensive criminal record which includes, in the last 10 years, many breaches of violence restraining orders, trespass and what are commonly referred to as stalking offences. There are offences of dishonesty and breaches of community based orders.
38I did not find Mr Monk to be an impressive witness, although the La Banchi family are loyal to him and say he is an appropriate role model for the children. I do not know the barometer upon which this assessment is made.
39Ms A La Banchi said that in terms of his dark past he had experienced a bad childhood, he had done an anger management course and was now a loving and caring family man.
40Despite any misgivings I might have about Mr Monk this is not a case about where and with whom the children should live.
41I find the family dynamics, about which Ms Cain comments in referring to a time prior to the parties’ marriage, to reflect the tension between the two families:
79.At this time [the mother’s] mother [Ms A La Banchi] told me she was “worried about [the mother] marrying into a terrorist family”. I replied that “I was not exactly happy with my son “marrying into a mafia family””.
42I will now deal with the primary considerations.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
43Given the nature of the orders sought by all the parties the focus is very much on the father and the risk, if any, posed by the environment in which he seeks the children spend time.
44Although the father initially proposes any time he would spend with the children is to be supervised he also seeks that:
The Applicant’s extended family members be entitled to join in and participate in the Father’s supervised contact time.
45One of the issues raised by the mother involves the close knit male members of the Ganim household. It is said they hold discriminatory and sexist views about females. The mother complained that the children may be at risk in the father’s household given certain behaviour of the father and his brother Mr C Ganim which took place between around 1993 and 2003.
46In January 2007 Ms E Ganim reported to the police that the father and Mr C Ganim had been sexually inappropriate with her.
47It is alleged that when she was aged between four and six years, the father had “sexually interfered” with her. At that time the father was aged between 13 and 15 years. There was a further complaint that her brother Mr C Ganim, when he was aged between 16 and 18 years, “sexually interfered” with her and also sexually penetrated her. She was then aged between 11 and 13. The disclosures were apparently made at a Muslim women’s meeting. The timing of the disclosures was in dispute.
48Ms E Ganim made ten visits to the Sexual Assault Referral Centre after her disclosures. Ms Cain and other witnesses said Ms E Ganim was extremely affected by these matters and the subsequent reliving of them through her disclosures.
49It is common ground that inappropriate acts took place. Mr C Ganim’s wife, Ms Gilde, said that her husband had digitally penetrated his sister. She had been told that by both Ms E Ganim and Mr C Ganim. Ms Gilde was very supportive of Ms E Ganim. She said that both she and her husband had attended counselling together on four occasions and that her husband had attended alone on six occasions. She said this took place at the end of 2006 and had been arranged through her husband’s employment.
50Ms Gilde said that the mother and father expected Ms E Ganim to get over what took place but the mother expected her husband to pay the price. I found Ms Gilde to be a forthright and credible witness.
51The father expressed regret about his actions. He said it was a “vial of poison” and something he has to live with. However, he has not undertaken counselling to address any underlying issues.
52In the main the Ganim family collectively minimise the boys’ behaviour on the basis that they were children at the time and thus very immature. They say it is something unlikely to be repeated. Ms Cain denied the children would be at risk. She said her sons were “truly sorry”.
53However, the boys were of an age at which they could have attracted criminal responsibility for their acts. They were teenagers not young children. Their sister was very young and vulnerable. To his credit Mr C Ganim undertook counselling.
54The Ganim family says that Ms E Ganim disclosed these events in around 2005. They maintain that unlike Ms Gilde, who found the behaviour unacceptable, the mother excused the father’s behaviour. As a result of this stance the mother’s previously good relationship with Ms E Ganim became fractured. They say that the mother felt Ms E Ganim should move on from this incident and that the family should not make any changes to their practice in allowing the father and Mr C Ganim to visit the home where Ms E Ganim continued to reside.
55The Ganim family say that the mother should not now point to this intra familial sexual inappropriateness as a mark against the Ganim family given that the mother allowed her daughter Child A to continue to live with the father and that she also bore him another child.
56The mother, on the contrary, says that the disclosures were made at or around the time the parties separated. She said the father had blamed Mr A Ganim for being strict about women. She said she did not condone the behaviour at all. She said she was disgusted by it.
57Despite the fact that no charges were laid I consider the intra familial abuse of Ms E Ganim to be more than simply sexual experimentation. Ms Cain said Ms E Ganim would wake up in bed with the father beside her. He had used his fingers and penis to rub up against her vagina and backside outside of her clothing. This reflects a complete breach of trust in a sibling relationship. It is unnecessary to make a finding on the timing of the disclosures. However, I note that a report to the police does not necessarily correlate either with the date the offences took place or any initial disclosure especially in offences of this nature. There was a considerable imbalance of power. It is against the law. I do not consider it was dealt with appropriately. The Court has a responsibility to make decisions in the best interests of the children and to protect them if necessary.
58The father’s twin, Mr B Ganim was arrested, interviewed and charged in September 2004 for indecently or attempting to indecently penetrate [an international] student. There were 11 charges in total. These incidents were alleged to have taken place in September 2004. The initial alleged incidences commenced approximately a week after the father’s marriage to the mother.
59The complainant left the country to return to [Country C] and did not return for the committal proceedings. The charges were withdrawn. Mr B Ganim dismissed these complaints as “charges only” and completely irrelevant. He said they were consensual sexual encounters. Given the circumstances I make no findings in relation to these matters. Generally, Mr B Ganim was an unimpressive witness. He was dismissive of any suggestion of bad behaviour and was totally aligned to his twin.
60Mr D Ganim was charged with two counts of armed robbery in company in July 2006. For these offences he received a suspended imprisonment order and an intensive supervision order. In April 2009 he was again convicted of armed robbery. On this occasion he received a term of imprisonment of three years. The offence took place in 2008. There has been no further reoffending or complaints. Mr D Ganim told the Court the offences had occurred over a period of time when he used hard drugs. I accept this is no longer the case. I found Mr D Ganim a considered and credible witness. I also accept that this offending falls into a different category to the other matters or allegations which precede his.
61When the parties met in around the middle of 2004 the father was 24 years old and the mother was 21 years old. There was considerable mutual attraction and I find they fell in love very quickly. Despite their different backgrounds there was much commonality. Their different backgrounds in fact appear to have been an attraction, especially for the mother.
62Traits the mother found endearing and flattering in the father initially became, over time, oppressive, stultifying and demeaning. I accept she embraced Islam with an initial passion. This was likely borne from a lack of knowledge about how her life would change given the manner in which the Ganim’s interpreted the Qu’ran.
63It may well have been the case that without the influence of both families on the lifestyle of these parties their relationship would not have suffered as it did. However, as family is all important to each of them it was inevitable that the different backgrounds would clash. In particular I accept that there has been pressure, albeit unspoken, on the father to conform to certain values that have existed within his family from well before his birth. His father was a harsh disciplinarian with high expectations, at least for the males in his family. There was pressure to conform to those expectations which appear to have been based on a quite literal interpretation of the Qu’ran.
64The mother describes a relationship in which violence between the parties escalated as time went on. She talks of the father watching her obsessively for hours on end from the pavement outside the supermarket where she worked even prior to their marriage. The father explained his actions by saying it was to show his love for her. According to the mother, the father did not want other men looking at her and he was constantly asking that she cover herself up. The father took steps to drape sheets over a wire or line in the backyard of the parties’ home so that she could not be overlooked or observed by male neighbours.
65The mother described being assaulted both verbally and physically, being isolated and indoctrinated to adopt certain cultural practices. She said this occurred initially prior to their marriage. She maintains she was subject to serious threats of harm including threats to kill. She describes being made to participate in an exorcism and to having a knife held to her throat. She says the father made threats to kill not only her but the children and her sister. She says the children are at a direct risk from this behaviour and also from being exposed to it when it is directed at others.
66I find there was some physical violence between the parties. The father made some concessions about violence toward the mother. He said he could not recall many of the incidents. Dr [Z], Consultant Psychiatrist, prepared a report concerning the father for use in these proceedings. This was prepared in August 2014. He said the father reluctantly admitted several incidents leading to a brief physical altercation. The father said that he had hit the mother on her upper arm and pulled her hair. He also admitted to some pushing. Dr Z observed that the father felt ashamed and uneasy in recalling incidents of violence.
67The father admitted that he had a bad temper and that he was occasionally angry.
68The father denied the extent of the violence as described by the mother and tended to minimise any physicality between the parties. He said the mother was very strong herself and she had a background in kickboxing. On the other hand the mother tended to be rather dramatic in her description of the violence and made continual references to the father being a monster.
69I am satisfied that the violence included punching the mother’s upper arms and back, yanking her hair, stomping on her feet and pinching her. This was sometimes done in public although in a covert fashion.
70I accept that even on the father’s evidence he would have implements handy to protect himself. He accepted he had either a crowbar or metal pole filled with cement near his bed. I also accept that on one exchange between the parties a knife was involved. The father said the mother kept a knife under the bed.
71The father’s criminal record includes an unlawful wounding conviction on 4 May 2010 after an incident in 2009 in a bar where he worked as a bouncer. He received a 12 month suspended imprisonment order.
72The mother details specific incidents which include an incident after a family picnic in [Suburb D] in late 2006. The mother was driving the father and Child A home in their motor vehicle. The parties were arguing about the mother’s family. The mother became uncertain as to how she would find her way from Suburb D to Suburb A where the parties lived and became confused about direction. The father became angry. He shouted and punched at the mother’s upper arms and her thighs.
73Following in a four wheel drive motor vehicle was the mother’s siblings Ms C La Banchi, Mr D and Mr E La Banchi. Ms A La Banchi was also in the vehicle. Each party described seeing the father punch the mother and the car swerving.
74The mother pulled the vehicle over and stopped by the side of the road. Her family did likewise. There was a further angry exchange whereby the father blamed the mother for not driving as he would wish. I accept this incident took place.
75Between September and November 2007 the parties and Child A made a trip to Syria with other family members. At the time the mother was four months pregnant with Child B. This was not disclosed to any family members. Although there were some aspects of this trip that the mother found agreeable there were problems. The mother was a source of embarrassment to the father. She wore an anklet which could be seen as the gown she was required to wear did not cover it completely. This caused considerable consternation amongst the father’s family and the father exerted pressure on the mother to conduct herself in a more decorous fashion. The father also became upset when the mother wore eye makeup because his Syrian relatives objected. I accept he hit her.
76I also accept that during this trip the mother and Child A were often left alone during the day whilst the father made excursions with others. The mother was unable to access what she considered to be appropriate food. The living conditions may well have been different from what she experienced in Australia. She said the water was dirty. Both she and Child A became unwell. Given she was pregnant this was very stressful for her. The mother told Ms A La Banchi over the telephone that she wanted to divorce the father.
77I find the Syrian trip cemented the differences between the parties and their family. Matters went from bad to worse on the return to Australia. Both the mother and Child A were in a fragile state. Child A was underweight. She had lost small patches of hair. The mother says that this was a result of the father yanking her hair. I accept that the loss of hair was caused by some form of trauma. Whether it was the father pulling it out or through an excess of stress I link this state of affairs back to the father.
78In early 2008 the parties were attempting some counselling with a Christian church recommended by Ms C La Banchi. This was unsuccessful. The father arranged for an Imam from a local mosque to perform what the mother described as an exorcism on her. She says that this was unsuccessful and the husband continued to criticise her for what he considered to be wayward behaviour.
79During this very unhappy period in 2008 the mother says she contacted Anglicare, Crisis Care and often rang the Women’s Help Line to get assistance.
80On the date of separation, 17 April 2008, the behaviour of the father culminated in violent verbal abuse to the mother and Ms C La Banchi. There were threats to seriously harm the women and despite there being differing versions, a knife was used in the process. As a result the police were called. The father was served with a 24 hour Violence Restraining Order. Although not always on a continuous basis, there have been Violence Restraining Orders against the father to the present time. These have included the children.
81I accept that the father often spoke in what can be best described as an immoderate fashion. He was derogatory and abusive for no apparent reason about and towards people he would come across in the street. He was also very derogatory about the mother. He called her family and friends “bush pigs” and infidels. Apart from demeaning comments there were threats to kill or slaughter including threats to kill the children. I accept these words were spoken. Even without intent the result was to create fear in the mother.
82Dr Z said the father continued to struggle with his own feelings related to perceived injustice. This is exhibited in the father’s often inflammatory comments to members of the public he considered to have caused some affront to him. Another example is the father’s conduct during the hearing of the divorce order application on 30 April 2010. Although he deposes that he “behaved inappropriately and I regret that occasion” he was not so remorseful during the course of cross-examination.
83He opposed the divorce order application on the basis there had not been any marriage counselling and that the separation had caused him a great deal of unhappiness. The mother sought a security officer escort her from the court room. The proceedings were concluded in this manner:
[GANIM, MR]: Yeah, that’s what it’s all about. Destroy the children’s life, speak on behalf of the children. Do you know what children are thinking when they’re babies? They’ve been murdered and raped their rights from seeing their father. I’m not a sperm donor, I’m their father. Do you understand that? You live with it, you criminals. Murderer, that’s what you are. Homosexuality and lesbians and everything else. You’re a sick person, you are. They let paedophiles released in Queensland, one’s like Denis Ferguson. Women like you.
84I also find that on occasion Child A is likely to have been present and upset by the father’s behaviour. The behaviour impacted on the mother who was Child A’s primary caregiver. I accept that from time to time the father has pushed Child A away forcefully and is likely to have pinched her and chastised her verbally for minor behavioural infractions. He has been heavy handed and impatient from time to time.
85The mother filed a Notice of Child Abuse on 27 July 2012. In that she alleges:
1.[Mr Ganim] has physically assaulted [Child A] by pulling her hair, pinching her, slapping her leaving raised marks, pushing her, braking [sic] a wooden spoon when slapping her on her upper arm, all of these incidences were without reason or significant justification.
2.[Mr Ganim] in the past has told me that he has sexually assaulted his sister [Ms E Ganim] when she was a very young girl.
86Given the parties had long separated when this was filed there was no investigation. The children were having no contact with the father.
87The father has always categorically denied any threats or inappropriate physical chastisement of Child A and Child B.
88On 11 November 2012 Mr Monk made a complaint to the police that he had been assaulted by the father and a group of his friends at [B Bar, Suburb E]. No charges were laid but I accept that Mr Monk was subject to an incident of intimidation and bullying by the father and a group of either his family or friends. This happened after the father became aware that Mr Monk was in a relationship with the mother.
89The mother complains about the lifestyle of the father and his family. In his Papers for the Judge it is said that the father is “a practising and moderate Muslim”. There can be no doubt that the mother was aware that by forming a relationship with the father this included a relationship with his family. They were of Islamic heritage and embraced their Arabic culture. She was aware that by marrying the father there was an expectation the children would be brought up as Muslims. However, as Dr Z remarked, having a theoretical understanding of a religion is different from being born into it and knowing instinctively what is expected in terms of behaviour.
90There were other expectations. Prayer was to take place five times a day. Men and women were to be largely segregated save for close family members, regulating how they conducted themselves within their household and in public. Men and women ate separately. Women were not unaccompanied outside of the home. A male needed to be present. A modest style of dress, including a veil and gown in order to “cover up”, were seen as being appropriate. I find that the pressure to conform to such a mode of dress was likely to have been very difficult to resist. There are degrees to which the family, and Muslim women in general, embrace these requirements. However I find the father’s family expected a high degree of modesty and behaviour in order to conform to their belief system.
91I do not agree with Ms Cain that the mother had a freedom of choice in this matter. There was much pressure to conform albeit subtle. It may be that without his close family circle and left to his own devices the father would have taken a more, and not uncommon, liberal approach.
92Dr Z remarked on this by identifying the conflict within the father. He said that although the father would consider a more relaxed approach, his background created a tendency for such an approach to be seen as a failure towards his religion and deeply ingrained values.
93The mother described how in Syria many of the local people were subject to less rigid expectations of dress and behaviour than she was. She described other Muslim friends in Australia who were allowed a greater degree of choice.
94The mother’s unwillingness or inability to comply with the strict requirements imposed by the father’s living environment caused frequent and significant differences between them.
95Dr Z said the father had a concrete and inflexible way of thinking. The father described the wearing of a veil and covering up as being a “protective and positive” practice in living an Islamic lifestyle. When I consider his acts towards Ms E Ganim I find the disconnect between words and actions disquieting.
96In general when the father was asked questions about his conduct he routinely said he could not remember. An example of this is an incident which occurred when he was terminated from his position as a baker. I find he spat at the supervisor during a verbal altercation. The father simply maintained he could not recall that part of the conflict. This was in sharp contrast to his ability to recall with precision the injustices he felt had been directed to his family and the discrimination he felt he was subjected to. At no time was there ever any genuine insight in relation to the mother’s position and the impact of the living arrangements on her. He did not accept she felt isolated or that he had done anything that may have impacted on her health.
Mental Health of the Parties
97The Court accepts that mental health difficulties, properly controlled if appropriate, do not disqualify a person from being a good parent.
The Father
98The father is diagnosed as suffering from a bi-polar disorder in partial remission. Dr Z identified that given his background the father was predisposed to a major psychiatric disorder. Dr Z identified prolonged bullying and abuse at all of the father’s schools as a factor. He included in this sphere of education the home teaching by the late Mr A Ganim. He also identified insomnia as being a trigger for depression and mood instability. The father had sleep difficulties when he was working nights as a baker early in the marriage.
99It is clear that a trigger for the bi-polar disorder was the separation of the parties. The father’s family remarked that this was the genesis of the father’s mental health difficulties.
100In a letter written to the father by the mother after separation she recounts her and Child A’s fear of him. She refers to the father as needing help and begging him to seek such help. She refers to him as having “mental imbalance” and suggests it might be caused by working long night shifts as he did as a baker. She refers to having always supported him totally and that they could still have a life together if he addressed his issues of family violence. From this and some other evidence it appears the father was struggling for some time during the relationship with health issues.
101Substantial medical records were subpoenaed and presented in evidence. I am far from satisfied that the father’s bi-polar disorder is presently managed appropriately. On 16 October 2013 the father’s then general practitioner noted that he had concerns about the father’s hypomanic symptoms. In April 2014 the father presented at [Suburb E] Health Service with rapid speech and hypomania. I am uncertain whether he is presently compliant with his medication and whether appropriate blood testing and kidney function testing is conducted on a regular basis. Regular psychiatric referral is also desirable but this is not presently accessed by the father.
102The father deposes that in 2013 he had three individual sessions with a domestic violence men’s group. In late May 2008 he enrolled for a 24 week men’s group domestic violence course. He completed 13 group sessions.
103The father deposes:
174.I am also going to seek further psychological treatment and I have asked my lawyer to find me a specialist psychologist I can attend upon in order that I can do whatever necessary to be the healthiest person that I can be. I am also either recommencing or continuing to complete the Domestic Violence Course at [Suburb F] Relationships Australia.
104There was no evidence at trial that continuing appropriate psychological or psychiatric assistance had been sought by the father.
The Mother
105The mother suffered a breakdown shortly after the separation in August 2008. Her difficulties remained until late 2009. She deposes:
97.In or about August 2008 to Late 2009, I had many sleepless nights leading up to my break-down and I do not recall any events clearly. I was medicated for a year with mood stabilizers. I was admitted on three separate occasions for under a week each time. I had regular psychiatric appointments to help with my recovery. In late 2009 I stopped taking mood stabilizing medication.
98.In 2008 I attended Domestic Violence counselling on a weekly basis.
106At that time she was residing with her parents in [Suburb G]. On 4 August 2008 she was admitted to the emergency department of the [Suburb H] Regional Hospital. She attended with her family and was obviously delusional. She was combative, resistant and half naked. She had been “sucking evil spirits out of her daughter’s mouth”. The mother’s presentation was described as of a “religiose preoccupation”. She had one hospital admission on an involuntary basis.
107The mother presented as being traumatised by the relationship and her reaction to it. She said she hated reliving that period.
108Dr [H], Consultant Psychiatrist, gave evidence in support of the mother. He said when she was hospitalised her symptoms of mania were consistent with her presentation. He said the trauma she recounted having experienced during her marriage was likely to have occurred.
109The Suburb H Regional Hospital file notes reveal that the mother’s difficulties are likely to have been triggered at about the time of separation. This was approximately two weeks after the birth of Child B. The initial diagnosis was of post-partum acute onset mania. The records then reflect the diagnosis to be bi-polar disorder which at the time of trial was in remission.
110The records note that the mother was a troubled teenager and had been angry throughout those years. She had dabbled in drugs and there is some suggestion of a family member having psychiatric difficulties. Between the middle of 2008 and late 2009 the mother struggled to deal with her disorder. There were difficulties with appropriate medication and with her compliance to it. However, I am satisfied that presently the mother has a good understanding of the likely triggers for any further episodes and has sought appropriate advice. An example of this is when Child C was born in early 2012. She sought help before the event and was monitored.
111In a report by Dr [P], Consultant Psychiatrist at Suburb H Regional Hospital, dated 21 January 2009 it is stated that the mother has a genetic vulnerability to mood disorders.
112The mother has shown insight into her condition but I accept she remains vulnerable.
The benefit to the child of having a meaningful relationship with both of the child’s parents
113It is now accepted that meaningful in this context is synonymous with significant. Thus, to have a meaningful relationship is to have an important relationship or one of some consequence. The Full Court in the matter of McCall & Clark (2009) FLC 93-405 set out what it considered to be the three possible interpretations of s 60CC(2)(a):
118. …
(a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b)a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c)the third interpretation is that 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 (“the prospective approach”).
114The court concluded that the preferred interpretation of benefit to a child of a meaningful relationship is the prospective approach. However, the court accepted that depending upon the circumstances of the case, the present relationship approach may also be relevant. The court went on to say:
119… If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
115This is very much the situation here. The father has not seen the children since about 19 April 2008. The children were then very young. Child B was born about two weeks before the separation and Child A was two and a half years old.
116Before it is even possible to contemplate whether there is likely to be a benefit to the children in having a meaningful relationship with their father it will be necessary for them to undertake what can only be a long and arduous process of unification. The father acknowledges that it will take time and he accepts that initially any time with them would be supervised. His ultimate aim is to see the children in an unsupervised setting and for his family to be involved in their lives.
117The maternal family is implacably opposed, on the whole, to any form of contact. The mother could unhappily contemplate a relationship akin to that of pen pal but she was agitated and apprehensive about such a prospect. Mr Menagé who provided a report dated 1 October 2012 said the mother felt letters were the only safe form of communication. The wider family could not even contemplate this. Ms Cohen asked Ms A La Banchi if she would consider being the conduit of information, letters and gifts for the children and the father. Ms A La Banchi took time to consider this idea but rejected it. Ms C La Banchi was equally disinclined to have any involvement in the sense of being a line of communication between the father and the children. She would however, support the mother in any outcome.
118There can be no doubt that the La Banchi family, rightly or wrongly, are scarred greatly by their experience with the Ganim family and its effect on their family member. The impact of the mother’s psychosis on the family over an 18 month period has left an indelible mark. Although the psychosis arose as a post-partum event there can be no doubt that the mother’s experience during the relationship played its part during and in the aftermath of the psychotic event. I accept the mother remains susceptible under pressure. She said she would be fearful for the rest of her life.
119The mother, although inclined to a rather dramatic and perhaps sometimes inaccurate re-telling of events, harbours what appears to be a genuine fear of the isolation and treatment she feels she received from the Ganim family. She accepts there are aspects of their lifestyle and religion that she continues to find attractive. However the method of Islam as practised by the Ganim family was a far cry from what she initially imagined and what she saw in the wider Muslim community. She fears the same attitudes and beliefs will be imposed on her daughters once they enter puberty.
120The mother’s fear extends to the supervision of contact in a formalised setting. She says she would be on edge all the time. Her fears range from a possible kidnapping to violence involving the father’s friends, especially if the supervisors are female. She says she will be re-traumatised. Her fears are likely to remain. Mr Menagé remarked she and Child A displayed genuine anxiety and fearfulness at interview. This was often the case for the mother at the trial. The potential safety of supervised contact holds little attraction for her given the ultimate aim of the father is to progress to unsupervised time. This she finds completely unpalatable and it impacts upon her ability to cope. I accept contact with the father or between the father and the children is likely to impact on her capacity to function generally and to impact on her ability to parent the girls and Child C.
121Despite denials that there is pressure on women to conform to certain standards of dress and behaviour, the manner in which the Ganim family conduct themselves suggest this is not quite as clear cut as it seems. There is considerable pressure to conform to certain customs, albeit often unspoken. There are high expectations of how lives are lived including regular prayer, segregation of the sexes in most circumstances and constraints on women generally. I accept that some individuals such as Ms Gilde have managed to carve what on the surface appears to be an independent identity but overall there is a strong ethos of modesty and what some may describe as submissiveness. These issues arise for women on attaining puberty.
122When the Court critically considers the likely benefit to the children in having access to two very diverse and rich cultural backgrounds against the incompatibility between the lifestyles that go with each background it struggles to see the benefit to the children in terms of routine, stability and identity at this stage in their lives.
123The father’s family, without exception, maintain they will do everything possible to allow a relationship to develop between the father and the children. I accept this is a strongly held desire of the family. Mr Menagé said that even before there could be any attempt at a unification of the children and their father he would have to undertake considerable preliminary work. This would involve remedial counselling to help him understand how his actions have impacted on the mother and the children. He would need to understand the mother’s stress and her impression of her life with him. This was not something the father appeared to have much insight about or could even contemplate, at least at trial.
124Although Mr Menagé said children generally fare better if they are able to maintain a relationship with significant others, here the risk to the children outweighed the benefit. This is based on the father’s present thinking. Mr Menagé said that if the father could acknowledge he went too far in some aspects of their married life but he was now addressing the issues this may be a tentative step forward. However at this stage the father is firmly of the view that the mother’s family is to blame for their broken marriage.
125Mr Menagé considered that the father would need to have achieved some therapeutic gains before spending time with his daughters under supervision was even started. Any reintroduction would need to be within a therapeutic context. Mr Menagé said that the father needed a fair chance to develop different ways of being before the children could be involved.
126Thus, at this stage it is impossible to consider any benefits there might be from a meaningful relationship between the father and the children except in a strictly hypothetical sense. There is no relationship between them. For there to be a meaningful relationship this would require a considerable shift in the father’s thinking. Thereafter, a long reunification program would need to follow. The benefits could be assessed then. At this stage it is not possible for the Court to come to a definitive conclusion there may be some benefit in the future.
127Despite all this I find it would be a travesty if the children did not have a window of opportunity to explore the heritage, traditions and religion of the father’s family when they are older and in a manner they consider appropriate. The benefits to be gained at this point in time are likely to be marginal and at the cost of the health of the children’s primary care giver.
Additional considerations
128I will now turn to the additional considerations although, it will become obvious there is considerable cross-over with what has already been canvassed in the primary considerations. I do not intend to repeat those matters here.
129Not only are the children very young but they have neither seen nor known their father since separation in 2008. Mr Menagé interviewed Child A in 2012. He said she had a recall of the father being “mean to mummy”. She had heard him shout at her. She said her father had also pulled her mother’s hair. She said she saw the father do it herself. In recounting this she was anxious and fearful. Mr Menagé observed that it is likely the father became quickly exasperated with Child A. This was my impression of him at trial.
130There was some divergence of opinion as to whether Child A would have any memory of her father’s actions given she was only two and a half years at separation. Whether or not she has any independent recollection her views genuinely mirror those of her mother. I accept that this is likely to have been unavoidable given the trauma suffered by the mother after separation. I am not persuaded that any views of Child A arise from a sinister motive of the mother. The father maintains the mother has brainwashed Child A and frightened her. I do not accept there has been such brainwashing but, to the contrary, there is simply no discussion about the father in the mother’s household. It is a period of her life that she simply wants to forget about.
131The father held contradictory views about the mother. He felt she had brainwashed the children although he willingly said she was a good parent and a “loving feminine mother”. However he had, I accept, a rigidly controlling attitude to her during their relationship.
132Mr Menagé said the children’s memory of their father could simply be based on the maternal family’s perception of him.
133The children have a very good relationship with their mother and her family. The children have no present relationship with the paternal family. They have a stepfather and a younger brother. This is what they presently consider to be their family unit. During the marriage the mother said the father played a peripheral role only in Child A’s life. He worked long hours as a baker. I accept the father’s family were fond of the children and had a good relationship with them at that time.
134The mother is neither willing nor able to facilitate and encourage a close and continuing relationship between the children and their father. The mother is very protective of the children and wants them to be safe. The father says he would be willing, if he was given a chance, to ensure the children maintained their good present relationship with the mother. I find his good intentions likely to be, in practice, impacted upon by his lifestyle and fairly rigid religious beliefs. If there is a disconnect between the mother’s lifestyle and his there may be a tendency to criticise the mother and her family.
135There is unlikely to be any practical impact on the children of supervised time. However it would impact severely on the mother. I accept she would be fearful and may well relive what she perceives to be the injustices meted out to her during the marriage. A practical consideration is that the mother simply does not want to have the children spending time with their father. She would reluctantly allow some form of written communication.
136The mother has the capacity to provide for the children in a physical and intellectual sense. She is unable to provide them with the ability to discover, explore and know the father’s cultural heritage and lifestyle. I find the father has a limited capacity in the same domain.
137Each of the parties have had mental health difficulties. I am not persuaded that the father’s difficulties are being appropriately addressed at the present time. In order for the Court to even consider his capacity he would need to undergo appropriate ongoing medical supervision and possibly therapy to address behavioural issues.
138One matter that weighs heavily with the Court is the ability of the children to understand the rich and varied lifestyle, cultural and traditions of the father and his family. I consider these to be diverse and enriching. It forms part of who these children are and they need to retain some connection to it.
139The mother has an appropriate and responsible attitude to the children. I am not satisfied the father has always demonstrated such an attitude. He has allowed family pressure and lifestyle considerations to override his responsibilities as a parent in Australian society no matter what his background.
140I have canvassed the issues of family violence and restraining orders earlier in my judgment.
141Regrettably in this case the orders most likely to allow the children the chance to simply grow up without conflict may mean excluding the father from their life at this stage.
Discussion
142The first point to now consider is whether the presumption that Mr Ganim and Ms La Banchi should have equal shared parental responsibility for Child A and Child B applies.
143Any order for shared parental responsibility imposes on parents an obligation to consult on major long term issues. These long term issues are specifically defined in s 4 of the Act.
Major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
144The parties must make a genuine effort to come to a joint decision about the issues. The obligation to consult arises from an order for equal shared parental responsibility irrespective of the amount of time that either party spends with the children and irrespective of where each lives.
145The children have had no input from their father since the date of separation. I accept that he has been willing to involve himself in the lives of the children but that his own mental health difficulties and lifestyle have militated against his ability to do this. In any event, I find these parties have no ability to communicate, negotiate or consult with each other in a manner that is conducive to the short and long term welfare of their children.
146In 2012 Child A and Child B were baptised in accordance with the Roman Catholic faith. The religious views of the father and his family are diametrically opposed to such a course. Although the father said it was not important what religion the girls follow, but rather who they are and what they want to become, I did not find his actions married with these words. I accept he has a tendency to call non-Muslims “infidels”. When Ms Cain was asked whether her preference was for Child A and Child B to cover up at age ten she said “I hope they aspire to be humble servants of God whatever that may be.”
147The Ganim’s belief system is that the children should be brought up as Muslims. I am not critical of this. It was an expectation well known to the mother before marriage. I do, however, consider this to be an example of an unhelpful impasse between the couple as a result of a conflict based, to some extent, on religious principles. At this stage there does not appear to be any room to genuinely accommodate the differences such that the children are able to move freely between the very different households.
148I consider this divergence in fundamental beliefs is likely to spill into other major long term issues, for example education. I do not consider the presumption for equal shared parental responsibility applies here.
149I now turn to the issue of whether the father is to spend time with the children and if so in what circumstances. Section 60CC(2)(b) requires the Court, in determining the best interests of the child, to consider as a primary consideration, “the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.” This mandatory consideration canvasses all aspects of risk to a child when considering what is in that child’s best interest. In order to understand the process of assessing risk it is helpful to seek guidance from the High Court and the Full Court of the Family Court of Australia. Often the assessment of risk in the cases relates to that of sexual abuse but I find it has a wider context as well.
150In M and M (1988) 166 CLR 69 the High Court confirmed that consideration of abuse is not confined merely to a determination of the occurrence or risk of occurrence of abuse, but must be within the context of the Court’s broader and ultimate determination of what arrangements are in the best interests of the child.
151Their Honours (Mason CJ, Brennan, Dawson, Gaudron and Toohey JJ), in joint reasons for judgment, said (at p 76-77):
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
…
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
152In B and B (1988) FLC 91-978, a judgment delivered together with the decision in M and M (supra), the High Court endorsed the statement of the Full Court majority (Baker and Maxwell JJ) in both M and M (1988) FLC 91-958 at p 76,924 and in B and B (1988) FLC 91-957 at p 76,935:
We are of the view as a matter of general principle, that in assessing whether or not there is risk to a child if access were to occur or risk that the welfare of a child could be endangered in the event of access, the ordinary civil standard of proof must be applied. If a trial Judge considers, upon the balance of probabilities, that the welfare of the child may be endangered or there is a risk that the child may be physically, sexually or emotionally harmed if access were to occur, then a trial Judge may, in our view, suspend access.
153In Johnson and Page (2007) FLC 93-344, the Full Court (May, Boland and Stevenson JJ) conducted a comprehensive review of the application of “unacceptable risk” following the High Court’s decision in M and M (supra), and agreed with an enumeration of factors expressed by a former judge of the Family Court the Hon. John Fogarty A.M writing ex-judicially:
68.In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
1 The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
…
71.We generally agree with Mr. Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).
154In assessing whether there is an unacceptable risk in this case it is useful to refer to a number of areas of evidence that impact on this issue.
Physical harm
155The physical harm alleged and canvassed during the course of evidence ranges from at best neglect and disinterest by the father to his threats of harm including to kill. This incorporates references to seeing others in the “next life”. One significant example is the loss of Child A’s hair as a result of her father’s actions or physical punishment.
156I am satisfied there has been family violence. The definition of family violence according to the applicable legislation is:
family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note:A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
157The father accepts he can get angry. He often acts impulsively. His interactions at work and on social occasions which have been canvassed show this to be the case. At times the anger manifests in violence as evidenced not only by his criminal record but by the incidents he has been involved in, for example with Mr Monk.
158I am satisfied that the father has exhibited extremely controlling behaviour towards the mother. I have previously addressed his behaviour consisting of observing her at her place of employment prior to marriage, for what can only be described as, extended periods of time. He went to considerable lengths to shield her from neighbours’ eyes by hanging sheets in the backyard, around the perimeter, to prevent such a view. In public he has pinched and stomped on her feet to ensure her compliance with what he considers to be appropriate and modest behaviour. He has used aggression when she has lost direction whilst driving.
Emotional and psychological harm
159There were a number of matters raised during the course of evidence which fit within this description. Although referred to as “extreme beliefs” by some of the parties during the trial this Court is reluctant to use that terminology when describing the father’s views on Islam. There were some aspects of the Ganim family’s interpretation of the Qu’ran which did not fit with the beliefs of either Ms La Banchi or, indeed, other members of the Muslim community. However, to describe such beliefs as extreme is ill advised. I do not consider it is a matter of the quality of their beliefs but simply a matter of degree.
160The Ganim’s were keen to follow the tenets of Islam in the way they felt most appropriate. This included a high expectation, often unspoken, that women would cover up unless in the presence of certain family members. It also discouraged certain social activities which are a common part of Australian society. The designated roles for males and females did not always fit with the expectations of a considerable part of the population who strive for gender equality. However, discriminatory gender practices are not simply the province of the Muslim community but are routinely experienced in our society.
161Be that as it may I find that cultural and religious sensitivity is no excuse for moral blindness. In this respect I specifically refer to the sexual abuse of Ms E Ganim and its effect on her throughout the years. I consider it was not dealt with effectively or appropriately by the family. The abhorrent behaviour of the male members who were involved in the inappropriate behaviour was excused and minimised in the extreme.
162Criminal or socially unacceptable activities were also generally minimised and excused by the family, including Ms Cain. I did not get the impression there was any genuine acceptance of responsibilities save for Mr C Ganim who had counselling.
163The father and his family held negative views of the mother and her family. This ran the gamut of open hostility to veiled politeness. There were times when the father’s hostility to the mother’s family and his blaming of them for the marriage difficulties spilled into his language without check. The father said that it was only the mother’s family who generated the violence. These attitudes and how they may impact on the children and their relationship with their primary caregiver are concerning.
164In saying this, I also accept the mother’s parents have been unhelpful.
165In the Ganim household, girls who have attained puberty have certain strictures placed upon their social activities and behaviours. This may not be problematic if it is voluntarily adopted but if it is imposed either consciously or subconsciously I consider it is likely to place the children in an invidious position. It makes any transition between households difficult.
166I consider this mixture of matters pose a risk of emotional and psychological harm for the girls given the factual matrix here.
Mother’s concerns
167The mother is genuinely frightened that the children are likely to be at emotional and physical risk in the father’s milieu. She is also frightened that even supervised time with him may allow an opportunity for kidnapping or gang-violence.
168I have previously noted that the mother can present in a rather histrionic fashion. The medical evidence supports the fact that she has very real memories of past trauma and the possibility that she could be re-traumatised in the future. The Court cannot simply sweep her concerns away. Dr H noted that, although she has been in remission for about five years and thus the chance of a reoccurrence of her bi-polar affective disorder is much less, she is still at some risk. If the mother is re-traumatised this will impact on the children.
169After the first four days of trial the mother, over the weekend, was having difficulty sleeping. She was experiencing nightmares and as a result needed to seek medical attention for medication to assist with anxiety. I accept this was a genuine response to the highly charged and emotional court proceedings. The mother was able to resume the balance of the trial in a composed fashion. She did not seek to maximise the impact on her to gain an advantage.
170Dr H said that any re-introduction to the father would need to be managed not only by medication but with the support of at least a general practitioner and preferably a psychiatrist. He said it was not a certainty that the mother would experience any reoccurrence of the bi-polar disorder but because of the trauma associated with her first marriage she would need considerable support. Of course there are issues of stress and anxiety unrelated to her mental illness that need to be considered.
171In this case the mother is the unchallenged carer of the children. There is no other care option for them. The mother and her family provide the children’s support unit. The Court must take into account that her functioning is extremely important for the children. They were without a fully functioning mother for approximately 18 months after separation. She now appears to be stable and happy. She says she loves being a mother and her time revolves around the children’s care and their needs.
172I accept that supervised contact centres represent, on an objective basis, a safe way for the children to develop and maintain a relationship with a parent. However, the use of such centres does not prevent fear in a parent or a reminder of past difficulties. This must be weighed against the benefits to the children of seeing the other parent.
Father’s mental health
173Mr Menagé said that in this case he would recommend the court adopt a prudent approach. He held ongoing concerns about the father’s actions to fully address his bi-polar disorder.
174I agree with this and have raised it earlier in my judgment. The father has a propensity to use this disorder as an excuse for his behaviour. As Mr Menagé pointed out, whilst the mental health issues should not be underplayed, bi-polar disorder is a mood disorder and does not prevent the father understanding what his position is. It should not be an excuse for violence especially given his daughters may also be affected by the condition. It is important that they do not equate the mood disorder with a propensity for violence.
175Mr Menagé was of the view that the father needed to demonstrate some sensitivity and understanding about Child A and the mother’s impression of their life with him. He felt that the father needed to be in a position to give an apology for acting in a way that frightened them. He needed to show authentic remorse. He saw this as a preliminary position before even supervised time could commence. He thought some objective therapeutic gain needed to be made first. The issues facing the father needed to be contained. The mother’s concerns needed to be recognised.
176Mr Menagé put it in practical terms that the father needed to genuinely accept that at a certain stage in his life he had become aggressive but that he was now addressing this issue.
177He dismissed the claims of the father that the children, especially Child A, had been brainwashed by the mother. He acknowledged there would be an interplay between them given the mother’s experience but that was a far cry from brainwashing.
178Mr Menagé accepted that children generally fare better if they maintain relationships with significant others – here their biological father. However, having conducted his assessment as Single Expert Witness he was of the opinion that the risk to the children’s long term welfare outweighed the benefit of an immediate re-introduction of supervised time.
179The father’s counsel, Ms Auburn, said the father and his family would do anything to have a relationship with the children. Ms Auburn referred to the report of Dr Z where it was suggested that the father had some insight into his situation. The father was resworn in order to assess whether this insight was to such an extent that he was able to acknowledge his behaviour during the relationship and his role in the breakdown of the relationship.
180The father gave what appeared to be a heartfelt apology to Child A and the mother. He said it was for “anything that made the marriage untenable”. He said he would do anything including family therapy and he confirmed that he had unconditional family support. He accepted that his actions had made the mother fearful and that Child A was also fearful.
181He denied any violence towards Child A or any threats to kill anybody.
182The more he was questioned the more agitated he became. He reverted to describing most events as injustices meted out to him. He blamed the mother’s family.
183I am far from persuaded at this stage the father has made any holistic change to the attitudes that are the foundation for the present difficulties that confront the parties.
184I accept the evidence of Mr Menagé that the father needs to demonstrate some real change in attitude and to have made some therapeutic gains before any reintroduction with the children can begin. I consider this essential in terms of managing any possibility of re-traumatisation of the mother and Child A.
185The father has expressed the willingness to undertake this step and it will be for him to ascertain a way forward if he chooses to change the present circumstances.
Conclusion
186I can find no positive pathway to follow at the present time in relation to possible unification of the children and their father given his current attitude. I am not satisfied that even with safeguards, such as supervision, the risks will be ameliorated. Both parties have suffered significant trauma as a result of their relationship. They both remain vulnerable. This leaves the children in an invidious position. I consider their welfare to be at risk the level of which is unacceptable.
187The cessation of a relationship with a parent is an option of last resort for a court, it “is one which ordinarily the Court takes only with considerable hesitation” (Sedgley and Sedgley (1995) FLC 92-623).
188A child has a right to know their origins and identity. I consider it necessary that Child A and Child B are supplied with information on their cultural origins including the tenets and practices of Islam. I accept that despite what may have transpired in the past they should be able to maintain this very important link not only with their identity and origins but their father, if they so choose. When they attain a greater degree of maturity they will have a foundation upon which they can make their own choice.
189The mother’s evidence about what she does to assist the children in maintaining links with Arabic culture such as belly dancing and “food” was, in my view, relatively superficial and reflected form rather than substance. I am not satisfied that the mother has an understanding of, or if she has, the ability to actively encourage those origins.
190To this end I consider the father should be able to receive photographs from, and also provide photographs to, the children.
191Having taken all this into account, I do not consider that it is in the children’s best interests for their parents to share parental responsibility for them. The mother will have sole parental responsibility for Child A and Child B. I will not make orders for the father to spend time with his daughters. To do so at this juncture poses an unacceptable risk to the children physically, psychologically and emotionally.
Orders
1.The children, [CHILD A] and [CHILD B] (“the children”) live with the Respondent, [MS LA BANCHI].
2.The Respondent have sole parental responsibility for the said children.
3.The Applicant, [MR GANIM], be restrained by injunction and an injunction is hereby granted restraining him from:
(a)molesting, harassing or abusing the Respondent and / or the children or from interfering with the Respondent or the children or having someone do so on his behalf;
(b)removing or attempting to remove the children from the Respondent’s care and control:
(c)coming within 100 metres of the residence of the Respondent and / or the children; and
(d)attending at the children’s school or having any other person do so on his behalf.
4.On two occasions per year, the Respondent provide the Applicant via the paternal grandmother’s home address, with no less than three current photos of each child.
5.On an annual basis, the Applicant be at liberty to provide the children, via the maternal aunt, with photographs in an album (or any other suitable electronic medium) of himself and his family.
6.In the event the Applicant seeks to engage in therapeutic counselling with Mr Menagé or any other therapist specialising in family violence, he be at liberty to provide a copy of this judgment to that therapist.
7.The Respondent be at liberty to provide a copy of these orders to the children’s school.
8.The Independent Children’s Lawyer be and is hereby discharged.
9.The proceedings otherwise be and are hereby dismissed.
I certify that the preceding [191] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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