Ganim & Sabet

[2021] FCCA 2196

FEDERAL CIRCUIT COURT OF AUSTRALIA

(DIVISION 2)

Ganim & Sabet [2021] FCCA 2196

File number(s):

BRC1503 of 2020

Judgment of:

JUDGE JARRETT

Date of judgment:

11 June 2021

Catchwords:

FAMILY LAW AND CHILD WELFARE – The Family Law Act 1975 (Cth) and related legislation – best interests of the children – interim arrangements

Legislation:

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Cases cited:

 Briginshaw v Briginshaw (1938) 60 CLR 336

Division:

Division 2 Family Law

Number of paragraphs:

40

Date of hearing:

11 June 2021

Place:

Brisbane

Counsel for the Applicant

Mr Neaves

Solicitor for the Applicant

Hodgson Lawyers

Counsel for the Respondent

Ms Murphy

Solicitor for the Respondent

JMR Lawyers & Mediators

Counsel for the Independent Children’s Lawyer

Mr Anderson

Solicitor for the Independent Children’s Lawyer

Berck Solicitors

ORDERS

BRC1503 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR GANIM Applicant
AND:	MS SABET Respondent

ORDER MADE BY:	JUDGE JARRETT
DATE OF ORDER:	11 JUNE 2021

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1.The mother shall have sole parental responsibility for the children;

(a)W born in 2004; and

(b)X born in 2006.

2.The parents shall have equal shared parental responsibility for the children:

(a)Y born in 2013; and

(b)Z born in 2019.

3.The parents shall do all acts and things and sign all documents necessary to engage Dr E (or such other person who might be agreed between the parties) for the purpose of counselling the child Y and the child Z in relation to developing their relationship with the father. Each of the child W and the child X are at liberty to attend any such counselling, but are not required to do so.

4.For the purpose of clause 3, within seven days of the date of these orders, the parties shall contact Dr E and take all steps to engage her.

5.The parties shall take the first appointment available with Dr E and attend upon her (including with the children) as directed by her.

6.The parties shall follow the recommendations and advice of Dr E.

7.The parties shall be solely responsible for their individual appointments with Dr E (if any) and shall be jointly responsible for any sessions involving the children, including sessions involving the children and either parent.

8.For the avoidance of any doubt, any counselling attended in accordance with these orders shall be reportable.

9.The parties have liberty to apply in respect of the appointment of an expert.

10.The application is adjourned to 23 November, 2021 at 9:30am for directions.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Ganim & Sabet is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE JARRETT:

1. The evidence in this case demonstrates that these parties, when they were young, moved from place to place to avoid the terrors inflicted upon the population generally in Country H and Country F.  The evidence is that they were at one time in a refugee camp in Country H.  From there, the father took himself to Country J with a view to securing income for his family.  The mother in the meantime cared for the parties’ children.  From there, when the refugee camp in which the mother and the children were then living was to be closed by the United Nations, they were resettled in Australia.  That was in 2015.  Soon thereafter, about two and half years later, the father came to Australia, assisted in his partner visa application by the mother and they commenced to live together.  That did not last very long and they soon separated in July of 2018. 

2. Since that time, their children – there are five of them – have not spent any time with their father.  One of them is now 18.  The others are not, with an age range down to two years of age.  The experiences of these parties and their children are completely at odds with the ordinary experience of those who have had the privilege of being born in and living in this country. 

3. There are cultural matters at play here, in respect of which, there is, sadly, absolutely no evidence.  The parties are both of the Muslim faith.  That might have a bearing on some of the interactions between the parties.  Again, there is no evidence about that.  But it might go to explain some of the attitudes and behaviours exhibited by each of the parties.  I do not know.  I am only speculating.  It might have been nice to have some evidence about it. 

4. By these proceedings, the father seeks some orders that he spend time with his children.  The mother says that there should be no time and that she should be entirely responsible for them.  I have the benefit of an Independent Children’s Lawyer in this case and she supports the orders sought by the mother.  I remarked in the course of submissions that when this matter came before me and the parties asked me to set it down for a trial, the issues that were said to exist in the case centred around allegations of violence – physical, emotional, sexual and violence.  It was said that by reason of those matters, there was an unacceptable risk of harm to these children in spending any time whatsoever with their father. 

5. So serious were the allegations that I was moved to make a direction, about which neither party complained, that the rules of evidence should apply in this case. I was concerned to ensure that I had some probative evidence upon which I might be able to make some proper findings that would support a conclusion that these children were at an unacceptable risk of harm from their father as the mother alleged. Proper probative evidence is helpful – one might say essential – particularly in light of s. 140 of the Evidence Act 1995 (Cth) which essentially codifies what the High Court said in Briginshaw v Briginshaw, that in relation to very serious allegations like those made here, matters should not be left to inexact proofs, indefinite testimony or indirect inferences.  But yet, that is what we are left with here. That is not to say that the parties’ affidavits are bereft of evidence.  There is some evidence in there.  But on the important issues, it is sadly lacking. 

6. I need to say something about the veracity of the witnesses.  I have no reason to doubt what the father said in cross-examination or what he says in his affidavit.  There does not seem to be on the face of any of the material any inconsistencies that might tend to suggest that his memory has failed him or worse.  The same cannot be said for the mother’s case.  In a case where the parties’ first language is demonstrably not English, one might have thought that some care would be taken to ensure that the evidence that they placed before the Court was reliable.  There are rules in place to ensure that that is so.  Again, sadly, those rules do not seem to have been observed in this case.  The mother told me in the witness box that she cannot read English. There is a particular rule that covers that situation which requires an affidavit sworn by a person who does not speak English or read English to have the document read to them by somebody who can and can also speak their native language.  The affidavit is to carry a modified form of jurat in accordance with the rules.  The rules have not been observed here.  Indeed, on the mother’s own evidence, the document was read over to her by her support worker, whomever that might be.  She told me that person could not speak Country H language. 

7. So I am not even sure that the mother knows what is in her affidavit.  I doubt she does.  In fact, she cannot, because she swears in her affidavit that she has read and understood the family report.  But it turns out, that is not so.  What she said in the affidavit, if I was to take it at face value, seems in significant respects inconsistent with a document that was properly – or at least appears to be properly sworn by her.  That is the statutory declaration made to the Department of Immigration.  At the risk of it being said that I have placed too much weight on that document, it needs to be seen in context.

8. According to the evidence, it was a document sworn by the father’s sponsor to support his entry into this country under the visa regime set out in the Migration Act.  His sponsor was the mother in this case.  There are significant penalties for the giving of false information in visa applications.  There are significant penalties for swearing false statutory declarations.  The declaration in this case, at its conclusion, carries the warning that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence, the punishment for which is imprisonment for a term of four years.  It also carries the statement within the body of the declaration that the statement was read back to the deponent by an accredited “TIS interpreter” and the number of the interpreter (registration number presumably) appears there.  So one can be confident that the mother, when she swore the statutory declaration, knew what was in it and that she was swearing to the truth of it.  One cannot have the same confidence in respect of her evidence in this Court, constituted by her affidavit.  There are glaring inconsistencies in the two documents.  There are also other inconsistencies in the mother’s evidence.  There are inconsistencies between her evidence in this trial and statements made to the other agencies set out in exhibit 1 and exhibit 2. 

9. So in the event that there is a contest in the evidence between that of the mother and that of the father, I prefer the evidence of the father.  His evidence is consistent and it is consistent, by and large, with what is sworn by the mother in the statutory declaration she made for immigration purposes.  In that declaration she gives a history of the parties’ relationship which is consistent with that given by the father.  It generally paints a picture of a family who, in the circumstances that I have earlier described, have done the best that they can. 

10. One cannot help feeling a significant sense of loss for these children, given the lengths to which both of their parents, but the father in particular, has gone to ensure their welfare.  He was removed from their lives for some 11 years and, to her very great credit in what must have been no doubt very trying circumstances, the mother cared for them.  There is not a shred of evidence before me to suggest that these children have not thrived in her care. 

11. So in the context of s.60CC of the Family Law Act1975 (Cth), I think, first of all, I can conclude that in a general sense there would be a benefit to these children having a meaningful relationship with each of their parents. I say in a general sense because the evidence does not extend beyond that. Ms D gave evidence that generally it is much better for children, emotionally and psychologically, for them to have a relationship with each of their parents.

12. I am not satisfied that there is an unacceptable risk of harm to these children by reason of them being exposed to or having witnessed family or domestic violence against their mother, because in the terms that she has described it, I do not accept that it has occurred.  Her evidence does not prove it on the balance of probabilities or to any other standard. 

13. These children do not have a relationship with their father.  That is the evidence.  That is the reality, having regard to the way in which this family has existed over the past nearly 20 years.  To have one of their parents, it does not matter whether it is their mother or their father, absent for such a period no doubt has had an impact upon these children.  He is, essentially, a stranger to them. 

14. I have taken into account the statements from the children recorded in Ms D’s report that they would speak with him on the phone very regularly while he was away and they liked it.  So much appears from the statements to Ms D from the older two children.  But beyond that it is difficult to conclude that there is any relationship, or was any relationship, between the children and their father and the relationship that exists now, according to the only expert evidence I have about it, is that the relationship is either non-existent or a bad relationship.  The children do not like him and do not want to have anything to do with him.  The evidence from Ms D is that, as I have just said, the children do not like him, do not wish to have anything to do with him and some of them have expressed that they are scared of him. 

15. There can be no doubt that both of these parents have discharged their responsibilities to these children to ensure that they are cared for as best as they could be and they have discharged their financial responsibilities to these children.  The evidence about the father’s financial support was impressive.  There is a dispute between the parties about the level of the financial support provided to the family since the mother and the children came to Australia, but I prefer the father’s evidence about that.  In particular, I accept his evidence that he paid for driving lessons and purchased a car for the mother when she requested it.  That was a discharge by him of his responsibility to these children and the family more generally. 

16. The question of violence towards the children seems to inform their wishes.  The only evidence upon which I am prepared to place any weight about this matter appears from the report of Ms D.  The parties’ oldest child, Mr V, told Ms D that once his dad came to Australia his mother and his father had lots of arguments.

17. He said that he and his dad would argue sometimes too.  His father did not like him playing a female character on computer games and he would get really mad about it and he hit him one time.  There is evidence from others that the father might have called the child “gay” and, at times, fat.  But according to Ms D, Mr V was ambivalent really.  According to her report, he, “Sought to take a fairly neutral stance.”

18. He is now 18 of course, but his statements to Ms D inform the question of violence by the father towards these children and whether that represents an ongoing and continuing risk, unacceptable or otherwise.  Mr V also told Ms D that he had heard his mother screaming and he ran out and his dad was hitting her.  There is little other description than that.  I am prepared to place the worst interpretation on that, but beyond that there is not much else.  He said that his father used to hit W as well.  So they’re the statements from Mr V. 

19. W was the subject of much inquiry in the course of this case.  Sadly, she was the recipient of what I described in the course of submissions as “a belting” from the father.  There are two version of how this occurred in the evidence, or what passes for the evidence.  The weight of the evidence seems to suggest that the mother was not home.  The father was home.  The father asked W to make him some tea, or cook him some tea as Ms D records.  She went into the kitchen, turned the jug on, returned to the lounge room to collect some dirty cups and the father “turned on her and started hitting her.”  That comes from Ms D’s report, paragraph 64. 

20. The child reported that the father hit her with an object “many times”.  There is no explanation of what the phrase “many times” means.  W told Ms D that her sister – that must be a reference to Y – came in and tried to stop him and he hit her as well and they cried.  She does not really recall how the episode ended.  She also told Ms D that there were other times when he had hit her, but there is no description about how or when that occurred, other than to say that the episode with the object was the worst time.  She says that the father said to her at that point that, when he mother comes home, he is going to slaughter her.  That seems to have been interpreted as a threat that the father would kill the mother, although, given that the words used are not set out in Ms D’s report other than a paraphrase of them, it is difficult to be clear about that. 

21. In any event, the father’s evidence was that he did indeed strike the child with an object.  He said it was three times.  Maybe to a child who is being struck with an object that is many times.  I do not know.  But he accepts that he did that.  He gives a different version as to how it occurred but he nonetheless accepts that that is what happened.  W told Ms D that she is scared of seeing the father again and she does not want to do it. 

22. The next child in the list is X.  He is 14.  As we go down the list of children, of course, their memory of their father becomes less and less because they were younger and younger when he left one the first occasion and when the parties finally separated.  This child told Ms D that it was good when his father first came to Australia, but, again, his parents started arguing and it got bad after that.  He reported something which is consistent with what the mother says in her affidavit, but not consistent with what she says in the statutory declaration.  That is perhaps not surprising given the statutory declaration might well have been executed before the relevant events but it is hard to speculate about that.  In any event, he told Ms D that the father would tell them that their mother was seeing other men when she left the house and that he would tell them that the mother was a bad person.  He found that hard, because his mother is not a bad person.  He told Ms D that he would go along with the things that his dad said, because he did not want to get into trouble.  He reported that the father had hit W and he said that he had tried to strangle her.  There is no description of that and W never reported it to Ms D.  But it is what it is.  That is what this child’s perception was.  He said that it has been better since his father had left the house.  He has not heard or seen from his father since then and he is very certain, apparently, that he does not want to see him. 

23. Between X and Y there is a space of seven years.  Y was at the time of Ms D’s interview, seven years old.  Perceptively, she told Ms D that her mum hates her dad.  I accept that is true.  She told Ms D that they used to fight a lot and she would hear them fighting.  She apparently said to Ms D that, “Dad sometimes hit Mum,” but she does not say that she saw it or how she knew that.  Maybe she heard it.  Maybe she thinks she heard it.  I do not know.  It is just not explained in the evidence. 

24. She said that her older brothers and sisters did not like their father, that he was rude to them and he would hit them.  She said that her father had hit her too, when she tried to stop him from hitting W.  She said that she had been very scared.  It must have been a very frightening event. 

25. The episode when the father struck W with an object appears to be the most significant and well particularised episode of violence between the father and one of the children.  But, it needs to be seen in context.  This is an event that occurred in a household where the father had not been for many years.  He was, despite the phone calls to which I have earlier referred, essentially a stranger to these children.  They recognised him as their father and apparently, liked him when he first arrived.  I am satisfied and I accept the father’s evidence that it was a “one off” incident.  Nothing similar had happen before it or since.  It must have frightened these children terribly.  It would have led them to feel frightened and scared and instilled in them a sense of instability and insecurity as a result of not knowing whether another explosion might occur.  I think that is probably the best explanation for the fear that these children have expressed in relation to this incident.  I am satisfied that this is a single incident. 

1. Notwithstanding the statements by the children that the father had hit the children on other occasions, there is such a lack of evidence and particularity about that as to render those statements not particularly probative.  I do accept that the episode to which I have referred, at least for W and Y, has instilled in them a deep sense of fear.  Indeed, in paragraph 81 of Ms D’s report, she records that Y says that she does not want to see him again because he might start hitting them again. 

2. The youngest child, Z, was born after the parties separated.  He has never seen his father.  He does not know who the father is. 

3. So, against that background of the children’s views and what has informed them, there is a risk of harm to these children, I think, in spending time with their father.  I do not think it is a risk of physical harm.  I am satisfied that the father’s remorse and his statements about the particular episode with W were genuine.  He has taken steps to address his behaviours.  There is evidence that he has done something positive.  Those things auger well, but they do not deal with the impact of this upon the children and their perceptions.  Whilst I do not think there is a risk of physical harm, there is certainly a risk of emotional or psychological harm if these children are required to spend time with their father in a way in which they feel uncomfortable or unsafe.

4. I accept Ms D’s opinion that I should give significant weight to the expressions and wishes by the three older children.  I have included Mr V because he is part of the assessment, notwithstanding he is 18 years of age.  But I should give significant weight to those wishes.  I am not so sure that I should give such weight to the wishes of Y and that is because of the significant age difference between her and X and because, I guess, there is still some prospect that her relationship with the father might be restored.  So too with Z – not restored, but established.

5. Until the children have the experience of feeling comfortable and safe with their father, they will not feel comfortable and safe.  To not try to give them an opportunity to feel comfortable and safe and have a proper relationship with their father just because they do not feel comfortable and safe is really just to give up all hope.  I do not intend to do that. 

6. There are lots of obstacles to the re-establishment of the children’s relationships with their father and the establishment of a relationship with the youngest child.  I accept that.  Ms D spoke of things that might or might not happen.  But the Court’s task is to decide matters on the balance of probabilities; what is more probable or likely than not and nothing that she said suggested that it was more likely or probable that any particular course of action would work as oppose to not work. 

7. I am attracted to the idea that there should be some form of counselling or therapy as between the father and the younger two children - Y in particular – and some form of unification counselling or introductory therapy or counselling that would see the youngest child introduced to the father and a relationship be given an opportunity to form.  This child is entitled to that and having regard to my findings, there is no reason why it ought to be denied. 

8. Having regard to the findings that I have made about what these children have experienced and perceived, I am satisfied that the presumption of equal shared parental responsibility does not apply.  There has been family violence here by the father towards one of the children of this family.  He admits it.  That is sufficient to mean that the presumption of equal shared parental responsibility does not apply.  But that does not mean I cannot make an order for equal shared parental responsibility because if I am satisfied that it is otherwise in the best interests of these children or some of them then I can still make such an order.  And I am so satisfied.

9. I think it is in their best interests for there to be an order for equal shared parental responsibility in respect of the two younger children.  Why separate the two younger children out from the three older ones?  Mainly because of the views expressed by the children and the fact that they will not be included in the counselling or family therapy unless they wish to be so included. 

10. I have had regard to the evidence of Ms D that trying to establish a relationship between the younger children – Y in particular – might work a schism between the older children and her.  It might.  But that does not mean it will, or that it is likely.  Just that it might.  And as the Full Court has said on more than one occasion, trial judges are entitled to experiment in difficult cases and this is a very difficult case.  These orders might be seen as something of an experiment.

11. I accept the submissions by counsel for the mother that if there are to be orders in the nature of those that I have just discussed they could only be interim orders.  That really is like a dagger through my heart because this is set down for a final hearing and making interim orders in a case that has been going since February of last year after a trial like this is really not an attractive proposition for these parties or these children.  But sadly, I think it is unavoidable, really, because one will need to see what happens. 

12. Having regard to the evidence that I have heard from each of the parties it might be the case that they are unable to agree on moving the matter forward even if there is some success in the counselling or therapy. 

13. In respect of parental responsibility there should be an order for equal shared parental responsibility in respect of the two younger children.  They are very young still and there will be decisions to be made for them.  These parties have not communicated since separation effectively.  But I accept the mother’s evidence in cross-examination that is because there is a protection order in place and she thinks that that prevents her from contacting the father.  In any event, even if that is so, the protection order can be put to one side for the purposes of the parties communicating by email or another written form for the purposes of the welfare of their children.  Secondly, her reason for not communicating with him was that she did not want to.  If that was a reason not to make an order for equal shared parental responsibility we would never make such orders in any case where that outcome was contested.  These children deserve two parents who are going to make decisions for them jointly.  And having regard to my findings about the evidence and the evidence of the mother in particular I am satisfied they will be able to do that especially given that the father has commenced understanding, through the course that he has done, about his attitudes to certain things. 

14. Ms Murphy pointed out that there are many variables that have not been answered in the evidence.  None of those stand in the way of the parties coming up with some plans about how they might implement the counselling, so that if one or other of the parties finds somebody who can do it before Dr E and there’s some disagreement about that the matter can be brought back to Court and I can make an order about it to get it started sooner rather than later. 

15. I will stand the application down to permit Counsel to agree orders consistent with these reasons.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett.

Associate:

Dated: 20 January 2022