GAWEESH & GAWEESH
[2013] FamCA 107
•26 February 2013
FAMILY COURT OF AUSTRALIA
| GAWEESH & GAWEESH | [2013] FamCA 107 |
| FAMILY LAW – CHILDREN – Best Interests – Child related proceedings – Evidence relating to child abuse and family violence – With whom the child lives – With whom the child spends time – Supervised time – Family violence – Risk – Where there are allegations of family violence against the father – Where the children have witnessed family violence against the mother FAMILY LAW – CHILD ABUSE – Allegation – Sexual abuse – Supervised contact – Where there is no finding with respect to whether sexual abuse did or did not occur |
| Family Law Act 1975 (Cth) s 60B, s 60CC |
| B and B: Family Law Reform Act 1995 (1997) FLC 92-755. |
| APPLICANT: | Mr Gaweesh |
| RESPONDENT: | Ms Gaweesh |
| INDEPENDENT CHILDREN’S LAWYER: | Patrick Dooley |
| FILE NUMBER: | BRC | 7482 | of | 2007 |
| DATE DELIVERED: | 26 February 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 11, 12, 15 & 16 August and 12 & 13 December 2011 |
REPRESENTATION
| FOR THE APPLICANT: (on 11, 12, 15 and 16 August 2011) | Mr Gaweesh in Person |
| COUNSEL FOR THE APPLICANT: (on 12 and 13 December 2011) | Ms Chekirova |
| SOLICITOR FOR THE APPLICANT: (on 12 and 13 December 2011) | Hunter Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Pratt |
| SOLICITOR FOR THE RESPONDENT: | Hofstee Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Zande |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dooley Solicitors |
Orders
That the mother have sole parental responsibility for the children E born … September 2004 and B born … August 2006 (“the children”).
That the children live with the mother.
That the children spend time with the father for up to four hours on one occasion every four months, such time to be supervised.
That the supervised time that the children are to spend with the father shall take place by arrangement with C Contact Centre or, should that service not be able to accommodate or facilitate it, by arrangement with an independent, private provider of such supervision services agreed between the parties.
That the father shall pay the cost of the facilitation of such supervision whether it takes place at a children’s contact centre or is privately arranged.
That should the supervision need to be facilitated by an independent, private provider of such supervision services and the parties cannot agree as to the identity of such a supervisor, the mother shall, within 7 days of receipt of a written request from the father, provide the father the names, addresses and contact details of at least two or at most three proposed independent, private providers of supervision services and the father shall choose one of those providers to facilitate the supervised time with the children.
That any time the children spend with the father supervised by an independent, private provider of such services shall take place at a location determined by the supervisor.
That the father shall give the mother at least 4 weeks written notice of the date upon which such supervised time is to take place and all the details as to where the supervised time is to take place, who the supervisor will be if it is an independent private provider, the time it is to start and finish and the place the children are to be delivered to and collected from at the start and finish of the time.
That within 7 days of receipt by the mother of the written notice from the father in accordance with paragraph (8) of these Orders, the mother shall write to the father confirming her understanding of the arrangements that the father has made for the supervised time with the children to take place in accordance with these Orders.
That the mother and the father shall keep the other parent informed at all times of a postal address at which they will receive mail on an ongoing basis, advising the other parent in advance of any proposed change to such postal address.
That the mother shall at least once every 6 months send at least one recent photograph of the two girls to the father at his postal address along with a written report as to the girl’s educational progress and state of health, and in respect of any sporting, cultural or religious activity in which the girls are or have been engaged, including details of any significant changes there have been in respect of those matters between such reports.
That the father Mr Gaweesh and his servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of E born … September 2004 (female) and B born … August 2006 (female), from the Commonwealth of Australia.
That E born … September 2004 and B born … August 2006 be and are restrained from leaving the Commonwealth of Australia.
That it is requested that the Australian Federal Police give effect to the preceding paragraphs of these Orders by placing the names of the said child or children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List for a period of eight years from the date hereof.
That upon expiration of the period referred to in paragraph (14) of these Orders and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names from the Watch List.
That the mother shall neither encourage nor permit the children to continue to refer to their maternal grandfather by use of the English term “daddy”, “dad” or “father” or any words of equivalent meaning in the Arabic language, but shall encourage the children to refer to their maternal grandfather by use of a term in the English or Arabic languages that appropriately connotes or describes his relationship of grandfather to them.
That the Independent Children’s Lawyer is discharged two weeks from the date of these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gaweesh & Gaweesh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 7482 of 2007
| Mr Gaweesh |
Applicant
And
| Ms Gaweesh |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents in this case began living together when they married in late November 2003. They separated less than three years later, on the 1st of April, 2006, after a serious incident of violence that occurred in their home on the Gold Coast. At that time, they had a baby girl who was just eighteen months old and the mother was around four months pregnant with their second child, another little girl.
They have been in dispute about the involvement the father is to have in the girls’ lives ever since their separation. The father has had very limited involvement to this point in time. Soon after separation, the father commenced Court proceedings to obtain orders for the girls to spend time with him. Then, before those concluded, he went to Egypt where he stayed for around two years. Upon his return he recommenced Court proceedings and limited supervised time is all that he has spent with the two girls in almost seven years.
The mother has, since separation from the father, opposed the children spending time with him and says that he is a violent, unstable man, not capable of providing appropriate parenting for these two little girls. She says that the girls would face an unacceptable risk of physical and emotional harm, and even sexual abuse, if the Court made orders for them to spend unsupervised time with their father.
The father says that he is a gentle, kind, considerate and loving man and that he would be a good father to the two girls. He asks the Court to make orders that share the responsibility for parenting the girls equally between him and the mother. He seeks orders that the girls live with him and the mother for equal amounts of time.
As I pointed out to the parties at the commencement of the trial, it is impossible to look at this matter other than from a standpoint that accepts that one of the parents, in particular, must be lying to the Court. There are very serious contested factual issues at the centre of the dispute. Allegations of chronic domestic violence and abuse are made by the mother against the father. Findings as to where the truth actually lies will be critical in determining the eventual outcome. The Consultant Social Worker who interviewed and assessed the family and provided his report to the Court made completely contrary recommendations as to what should be the outcome, dependent upon whether the Court makes findings in respect of the contested issues of family violence primarily in accordance with the allegations of the mother or not. If they are accepted, he recommended the Court make orders that the children only spend supervised time with the father, at a children’s contact centre, about once every six months, for the long term. On the other hand, if the Court accepts the father’s denials of the behaviour it is alleged he perpetrated against the mother, then the Social Worker recommended the girls spend graduated time with their father consistent with their age and development.
Some relevant undisputed background
The father is 52 years of age. He was born in Egypt, of the Coptic Christian religious minority, the youngest of a large family. After his compulsory military service as a young adult he spent several years living and working in Europe. He came to Australia to live in the late 1980s, when he was in his late twenties.
He married an Iraqi woman in Australia in 1989 and they lived in the far western suburbs of Sydney. That woman already had a little boy of a previous relationship who lived with her, but in or around 1991 there was a girl born of her marriage to the father. That marriage ended not long after that child’s birth. The father spent little time with that child after that marriage break up, and says he has not seen her at all since she was about 12 years of age. He knows nothing of her now. The father says that his first wife was a “very, very difficult woman” and attributes the breakdown of their relationship to that fact.
The father married again in the mid 1990’s. That marriage lasted about a year. There were no children born of that marriage. When that marriage ended, the father’s second wife obtained a domestic violence protection order of two years duration from a New South Wales court. Shortly after that protection order expired, she went back to the court and obtained another such order of two years duration.
Between the father’s second marriage and his third marriage to the mother in this case, the father had a number of other relationships with women. Those relationships were of relatively short duration and they ended in circumstances where the father again came to the attention of the NSW police. I shall refer to the evidence about these circumstances in more detail later in these reasons.
The father and the mother then met in late 2003 after the father made contact with the mother by phone. She was living in Melbourne, with her father, in his home and caring for him. She was 37 years of age and had not been married before. She is of Lebanese origin, though also of Christian faith. The father was still living in Sydney when they met. They agreed to marry very soon after they made each other’s acquaintance and were married three months later in Sydney in November 2003.
After their honeymoon on the Gold Coast, the couple began living together in the mother’s father’s house, where she was already living, in Melbourne. The mother fell pregnant in or around January 2004. The couple and the mother’s father (who I shall call “the grandfather” in these reasons) moved to the Gold Coast to live in June 2004. At first, they rented accommodation there until the grandfather sold his Melbourne house. In or around December 2004, the grandfather then bought another house on the Gold Coast and they all moved into it together.
The couple’s first child, E, was born in September 2004. In or around March/April 2005, the couple took E and went to Egypt to visit the father’s family. They remained there for about six to seven weeks.
Later in 2005, the couple presented to a gynaecologist/obstetrician as they had been trying to conceive again, unsuccessfully, for about eight months. The father had semen analysis which was to be followed up, but the mother fell pregnant in the meantime.
Around this time, there were also difficulties being experienced in the household between the father and the grandfather and the father wanted the mother and their daughter to move out of the grandfather’s home and for them to find their own place to live. This generated disharmony between the couple.
On 1 April 2006, the couple went for a pregnancy ultrasound and were informed that the baby they were expecting was a female. A short time after their return home that day, there was a serious incident in which the grandfather stabbed the father a number of times in the back, chest and buttocks. The grandfather also sustained some broken ribs during the incident when the father struck him with a coffee table, and even the mother was hurt. Police were called to the home and the father was admitted to hospital and spent around a week there. He never returned to live in the home with the mother and she has stayed there with the grandfather and the girls ever since. Mutual domestic violence protection orders were made against the father and the mother in late June 2006 and put in place for two years.
The couple’s second daughter, B, was born in August 2006. Later that year, the father applied to the Federal Magistrates Court for orders that the girls be allowed to spend time with him and an order was made on 6 November 2006 that they could spend up to two hours each alternate weekend with him at C Contact Centre.
However, soon thereafter, in December 2006, the father travelled back to Egypt as his father was unwell. He stayed in Egypt for almost two years, having no contact at all with the girls during the time that he was away. His father died whilst he was in Egypt.
In July 2009, nine months after returning to Australia, the father filed another application in the Federal Magistrates Court for orders that the two girls spend time with him. On 18 September 2009, orders were made by consent reinstating the time the girls were to spend with the father, supervised at C Contact Centre, for up to two hours each second weekend. For reasons not known to me, the father only started spending time with the girls in late November 2009. This contact was supervised by a Family Consultant in the employ of the Child Dispute Services section of this Court. A short supervised visit took place with that Family Consultant monthly thereafter until January 2010. In March 2010 the visits actually started to take place at C Contact Centre.
From March 2010 supervised visits have been taking place at C Contact Centre.
The trial in the proceedings took place before me over six days, four of which were in August 2011 and two of which were in December 2011. The father was unrepresented during the first four days but was represented by solicitor and counsel during the last two days. The mother and the Independent Children’s Lawyer were both represented by counsel throughout the entire trial.
Around fourteen months have passed since I concluded the trial in this matter. I regret that fact and acknowledge that the delay in delivering judgment and reasons will have caused distress to the parties in this case additional to that which they would already be experiencing through the problems they have had in their relationship and their involvement in court proceedings. The responsibility of hearing other trials and deciding other cases has, regrettably, prevented me from finalising this judgment before now. However, as well as the notes I took during the trial, I have had the benefit of transcript of all the evidence from the first four days of the trial during the time that I have been considering and writing these reasons. That transcript has helped me to consolidate the views I formed about the parties and their credibility at the time I heard and saw them in Court and in the witness box.
The evidence of the parties on key issues of violence, abuse and intimidation
In her evidence, the mother described a history of abuse, control and violence perpetrated by the father against her right from the time of their honeymoon. She said that during their honeymoon the father came into the room in which she was sitting and began shouting at her. They spoke Arabic to each other. She said he shouted the Arabic equivalent of “you feel now you are safe with me? Wait to show (sic) you your future how it will be. The nightmare is beginning from today.” She said he then pulled her off the couch, grabbed her hand and twisted her arm behind her. She was crying and the father then said to her “now I am going to teach you how to obey me and to always be an obedient wife. This is your first lesson.” She said she has no idea why he did this to her and that night she was very scared and could not sleep.
In what became a standard response to the many and varied allegations of abuse, the father denied this allegation completely. He could give no explanation for its source other than coming from the imagination of the mother.
After their honeymoon, they travelled back to Melbourne via Sydney and stayed at the home of a woman with whom the father was friendly. That woman was part of the Egyptian community in Sydney and the father had worked with her. The mother said that on one occasion during that short stay in that woman’s house, the father came into the room in which the mother was with that woman. He saw them talking and immediately went into a rage. She said he grabbed the mother and started to hurt her. She said the friend and the friend’s sister intervened to pull the father off the mother and to chastise him for that behaviour. She said that the father said to her “I am the man and only if I give you permission to talk, you talk.”
Again, the father denied this allegation completely. However, this particular allegation of fact was corroborated by affidavit evidence of the friend in whose house they were staying, who the mother said witnessed the event. This woman, who was a friend and acquaintance of the father before he ever met the mother, said that the mother’s presentation when staying at her Sydney home after the honeymoon was surprisingly one of sadness. She said that one evening when the father went outside to get something from the car, the mother started to talk to her and that when the father came in and saw the mother talking with her he got angry, began swearing at the mother, called her abusive names and then tried to hit her. The friend said that she got between them and tried to prevent the father from hitting the mother. She said that she told the father that his behaviour was wrong, to which he said “I must teach her to obey me and never talk when I’m not present.” The friend said that she told him that this is not Egypt and that a woman has rights here and is not a slave. She said that the father said something like “I am the man. I must be obeyed no matter what.”
The friend was cross-examined by counsel who appeared for the father during the last two days of the trial. I did not consider that her credibility was in any way impeached by that careful cross-examination. She appeared to me to be a genuinely caring person, who was particularly upset at the way she saw her friend and former work colleague treating his new wife. Although her memory as to certain particulars, such as dates, was not necessarily entirely accurate, I gained no sense at all that she was not doing her best to tell the truth about matters, as best she could remember them.
The mother went on to say that whilst they were in Sydney at that time, she and the father went to a restaurant for dinner. At that dinner, she said that when her meal came before the father’s he became angry and picked up her meal and threw it in her face in front of the waitress who had served it. The mother said that this caused a disturbance and the manager of the restaurant came and told the father to “lighten up”.
The father said nothing like this happened at all.
The mother said that when they began living together in Melbourne, the father continued to physically hurt her but was, initially, careful to ensure that her father did not see this. She said that he even continued to hit her after they learned she was pregnant, including in the stomach. She said that around January 2004 he began to question her relentlessly about her father’s financial circumstances and his testamentary intentions. He wanted to know if her father had granted her a Power of Attorney to act on his behalf in respect of his financial affairs. She said she would deny knowing anything about her father’s financial affairs and that this would make the father angry and cause him to hit her and grab her around the throat, in a choking hold. She said that on one occasion, the father grabbed her by the hair and repeatedly hit her head against the floor.
The father denied all of these allegations.
The mother said that there was an occasion in or about March 2004 when a wardrobe that had been purchased was delivered to their home. The mother was already about three months pregnant at that time. She said the father started shouting at her at the time and telling her to move the wardrobe. She said her father intervened on her behalf and the father told him to go away. She said the person who had delivered the wardrobe, who was still there, then intervened and moved it into place for them.
The father denied all of these allegations.
The mother said that in or about May 2004, the father started to take her out to walk around the city each day from morning to evening, for no particular purpose. She said that whenever she complained the father would shout at her and hit her. She said if any passers by looked at them in any way, the father would shout rudely and abusively back at them.
The father denied these allegations.
The mother said that in or about June 2004, the father asked the grandfather to help him get a job with Business A where the grandfather had once worked. He became abusive at the mother about the issue, grabbing her and taking her into the bedroom where he told her she was not a good wife, that she was good for nothing and could not even get her father to do what was asked of him. She said on that occasion he hit her on the body again.
The father denied these allegations.
The mother said that the father then insisted they all move to the Gold Coast as he did not like Melbourne and wanted to make a new start in Queensland. She said that the father wanted the grandfather to go with them because the mother received a Carer’s Pension for taking care of the grandfather. She said that when they moved to the Gold Coast, they went looking for a place to live and the father made her walk around all day with him looking for a place even though she was five months pregnant. She said that her feet started to bleed at one point and when she pointed that out to the father his response was “that’s your problem”. She said that he would not allow her to eat during the day as they searched for a place to live, only allowing her to have dinner at night.
The father denied these allegations.
The mother said that when she was in labour having E in September 2004, the father was present in the delivery room and became abusive to the mother. She said that he grabbed her wrist and squeezed it hard telling her she only had fifteen minutes to give birth and not to waste his time. She said that doctors noticed his behaviour was distressing the mother and they removed him from the room.
The father denied these allegations.
The mother said that when E was only about ten days old the father got cranky when she was crying whilst he was on the phone. She said he put down the phone and picked up the baby and started shaking her and screaming at her. The mother said she ran to the father and took the baby from him and he went back to the phone call. She said when he finished he told the mother that she was responsible for what had happened and pushed her.
The father denied these allegations.
The mother says that she bathed baby E for the first time without the help of a nurse around the end of September 2004. She was very proud of herself and said that she told the father that she had done this. She said that he immediately became angry and questioned her as to why she had bathed the child without first getting his permission. She said that he began to put her down, telling her that she did not know how to do anything and that she could not achieve anything without him. She said that he asked her if she had bathed the baby with her hands and when she said “yes”, he made her hold out her hands and then he hit them until the pain brought tears to her eyes. She said the father merely laughed at her and then told her that she was not allowed to bathe the baby unless he was at home.
The father denied these allegations.
The mother said that in December 2004 when the grandfather bought the house on the Gold Coast after having sold his house in Melbourne, the father started to put pressure on her to get the grandfather to put the father’s name on the title of the property. When the grandfather refused to do this, she said the father became violent towards her that very night, telling her that she did not have his best interests at heart and that she should convince the grandfather to put the father’s name on the title. She said that he repeatedly hit her and put his hands around her neck, put pressure on her throat and partially choked her. She said that he did this in front of the baby E.
The father denied the allegations and said that he had never been abusive or violent to the mother. He denied that he had asked for the grandfather to put his name on the property.
The mother said that from that time on the father became abusive towards the grandfather. She said that he started to call him “rubbish” and started to tell him that he had lived long enough. She said that he would blow smoke in the grandfather’s face knowing that he had an allergy to the smoke. She said that he would deliberately take over the television whilst the grandfather was watching it.
The father denied these allegations although he candidly admitted that he did not like living with the grandfather.
The mother said that after E started to eat solid foods in or about January 2005, the father would restrict the amount of food that the mother was allowed to give her. The father would not allow the mother to give the child more than one meal per day. The mother said that the father would not allow the mother to have more than one meal per day either. She said that the grandfather then began to provide additional food for her and for the baby so that they did not go hungry.
The mother then said that in or about April 2005 she and the father and baby E travelled to Egypt because the father wanted to show the baby to his family who still live in that country. She said that the grandfather provided them with the money for the trip, putting money into a joint account for them. The mother said that after they arrived in Egypt the father took all of her jewellery from her and transferred all the money from their joint bank account so that she could not access any. She said the father took her and the baby to his family’s house where they stayed for the entire time they were in Egypt. She said the house was scarcely furnished with nothing really other than a bed and that during the day the father would go out and lock her and the child in the house. She said that after they were in Egypt for about a week the father took her passport and all forms of identification from her and told her to leave the house. The mother said that her sisters-in-law defended her and asked the father to reconsider. She said the father then beat her all over her body and caused her to scream and cry in fear. She said her sisters-in-law then told the father that the mother would be a good and obedient wife. The mother said that while they were in Egypt they did not do any sightseeing and she did not even get to see the pyramids near Cairo.
The father denied all these allegations.
The mother went on to give some more disturbing evidence. She said that whilst they were in Egypt she overhead the father and other members of his family talking about having baby E circumcised. The mother said that she was horrified with the thought of the idea and told the father that she would not allow him to do this. She said that he and members of his family told her that they were not asking for her opinion and that it was an aspect of their culture. She said that one of her sisters-in-law said that E was still too young and that they would wait until she was five years of age before circumcising her. She said that she began to plan escaping from Egypt with E but could not do so because she was locked in the house. About a week later she said that both she and E became sick because of lack of food and drinking contaminated water. She said that the father would not allow her to seek medical attention but eventually, as E’s condition deteriorated, he got a doctor to come to the house. She said that the doctor gave them medication but, when ultimately they returned to Australia, she had lost eight kilograms in weight whilst baby E had lost two kilograms.
The father denied all of these allegations. He said that female circumcision is not a part of his culture or his religion. He said that it is certainly not an Egyptian custom and that he would never allow it to happen to his daughter. He said that his eldest daughter who lives in Sydney is not circumcised and he has never heard his sisters talk about female circumcision. No evidence was put before the Court as to whether or not the practice is widespread in Egypt or practiced in the Egyptian community in Australia or as to whether or not it is practiced amongst Egyptian Coptic Christians.
The mother went on and said that whilst they were in Egypt the father drove them to a convent that the mother said was “in the middle of the desert”. She said that the father registered baby E to become a nun in that convent without even asking the mother for her consent or without her even being present with him when he was discussing this with the nuns. The mother said that she found out about what the father had done when one of the nuns came out to her and asked if she could see the baby E, and called her “our future nun”. The mother said that she was shocked and asked the nun what she was talking about. The mother said the nun then asked her who she was and when she told her that she was the baby’s mother, the nun informed her that the nuns had been told by the father that baby E was an orphan. The mother said that the nun then dismissed the application for the child to become a nun and the father became very angry that this had happened. The mother said that the father told her that he would have the child sent to Egypt later on to put her into the convent and that the mother would be able to do nothing to stop it. The mother said that she would not let E go to any other person after that point because she was so scared that the baby would be taken from her and circumcised or sent to the convent.
The father denied the allegations, whilst accepting that they had the child baptised in the Coptic Church whilst in Egypt. He produced photos that did appear to at least corroborate that assertion. He denied that he ever wanted the child to become a nun saying that it would not be possible because there are no nuns in the Egyptian Orthodox Coptic Church. No other evidence was put before the Court as to the issue of whether there are nuns in the Coptic Christian Church.
The mother said that upon their return the father wanted to start bathing E, who was only nine months old at the time, by himself without the mother being around. The mother said that she was not comfortable with this and that the child herself became agitated when the father was in the room and when he held her. The mother said that she said “no” to the father and that he became angry and began to swear at her. She said that he said the words, “soon, she will replace you, nothing more lovely than a baby’s skin on your body”. She said that she always ensured that she bathed E after that time and never left her alone with the father. All of that evidence was in her affidavit evidence. However, during her cross-examination by counsel for the ICL, the mother told the Court that the reason why she was particularly concerned to ensure that the father did not bathe E was because she saw him once touching her genitals in an inappropriate way during bathing when she was about nine months of age. She said that she was bathing the baby on this occasion and the father was with her. She said that she asked the father to get and pass to her the baby lotion. She said that he refused and told her to go and get it. She said that she went off and got the lotion and on her return she saw him touching her genitals with his finger. She said she did not consider that he was washing the baby by his touching and that it was a different form of touching that she considered improper and inappropriate. It was from that time on that she said she never let him bathe her alone again.
The father denied the allegations that had been made in the affidavits by the mother in respect of issues surrounding the bathing of the child. He put into evidence some photographs depicting him holding baby E, including during bathing. The child does not look to be agitated in his presence in any of those photographs. I do not know when the photographs were taken though. The father was not challenged by counsel for the mother in respect of inappropriately touching the baby girl whilst bathing her. It is clear that the mother’s evidence in the witness box on that point was the first time it had been asserted by her in these proceedings.
The mother went on to say that the father would force her to have intercourse with him several times each week throughout their marriage. She said that after E was born he wanted to have another child, more particularly a boy, and that in early 2006 he took her to a doctor because she had not yet fallen pregnant again. She said the doctor’s name was Dr M. She said that the father came into the doctor’s room with her and told the doctor that there was something wrong with the mother because she had not fallen pregnant after one and a half years. She said they were referred to a specialist for fertility issues. They then went to see Dr G who was an obstetrician and gynaecologist. The mother said that the father would not allow her to speak to the doctor. Again, according to the mother, the father told the doctor that there was something wrong with the mother because she had not fallen pregnant. The doctor examined the mother and told the father that there did not appear to be anything wrong with her. He told the father that he wanted to test his sperm. The mother said that the father became very angry with the suggestion that their failure to fall pregnant may be something to do with him. He, however, allowed himself to be tested and when the test results came back the mother said that the doctor told the father that he had a low sperm count. The mother said that the doctor told the father that he would do another test after he had taken some medication that he would prescribe. The mother said that the father then took the medication but before another test was taken, she found out that she was pregnant.
The father denied that they went to see Dr M in early 2006 and said that in fact they went to see Dr S as early as 3 October 2005. The father agreed that they then went to see Dr G who tested his sperm but that when the results came back his sperm count was normal. He denied being prescribed medication but agreed that the mother had fallen pregnant just after they saw Dr G in any event. He also denied the allegation that he forced the mother to have sexual intercourse.
The mother said that in or about February 2006, whilst she and the father and baby E were visiting a friend of the father’s in Sydney, the father’s interest in bathing E again caused trouble between the parties. The mother said that she went to the bathroom to bath the child and closed the bathroom door. The father came to the bathroom door and started banging on the door and demanding that she open the door. The mother said that the friend with whom they were staying stepped in and began talking to the father about why he was so interested in going into the bathroom with the mother whilst she was bathing the child. The mother said that the friend urged the father to stop doing what he was doing. The mother said that after she finished bathing the baby the father grabbed her by the back of her clothes and by her hair and pulled her towards him. He then said “soon you are never going to see her. I’ll be the only man in her life”. She said that his particular interest in getting into the bathroom whilst she was bathing the baby continued unabated after that night, but she also continued to lock the father out whilst she was bathing the baby.
The father again denies these allegations in their entirety.
The mother said that when they returned from Sydney after their stay in February 2006, the father’s violence towards her escalated. She describes an incident where the father forced her to wash his feet in the lounge room in front of her own father and in front of baby E. The mother said that the father looked at her whilst she was washing his feet, slapped her across the face with his open hand and said “I will teach her (referring to E) to beat you like that”. She said that the father then forced her to clip his toenails in front of the grandfather and the child and that he then made her go through this ritual on a daily basis until their relationship ended.
The father again completely denies the allegations saying the he never expected the mother to wash his feet.
The mother went on to say that in March 2006 she was in the kitchen when she heard a strange noise in the bedroom. She said she quickly went in and saw the father naked and masturbating. Baby E was in the cot in the bedroom at the time. The mother said that this shocked her and that she took E from the bedroom although the father tried to stop her doing so. She said she ultimately got the child out of the bedroom but the father just stood in the doorway laughing at her. He said “I told you I don’t need you. I’ve got your money, your jewellery, your life in my hand. No one to contact, no one to go to, you are ruined, like I was planning it. Soon this house will be under my name.” The mother said that day that she then immediately took baby E and left the home taking her to a local shopping centre where she spent much of the rest of the day even though she had no money. On her return home later that afternoon she said the father just laughed at her but then just left her alone. The father completely denies the allegations. He said that he has not masturbated since he was 16 years old.
The mother then gave evidence about the circumstances of the day of the parties’ separation. She said that on that day, 1 April 2006, the father took her to the hospital for a pregnancy ultrasound. The mother’s evidence is that the doctor told them both that the baby she was carrying was female and that the father immediately became angry and started shoving medical equipment in the room around. The doctor tried to calm the father down by telling him that they were blessed to have a beautiful, apparently healthy baby, even if it was female. The mother said that the father appeared to calm down but on the way home from the hospital he abused her and during the drive the mother said that after they returned home the father took her and E into the bedroom, closed the door and started hitting her in the stomach and on her back with his fists. She said that he kept punching her all over while she was lying on the floor. Baby E was screaming and trying to hold onto the mother.
The mother said that the father then opened the door and in his anger went to the kitchen where her father was and confronted him. The grandfather was in the kitchen with a knife cutting up fruit to eat. The mother said that the father was screaming at the grandfather yelling at him and telling him to die. The mother went out into the kitchen and heard the grandfather say to the father “leave me alone I don’t want to talk to you”. She saw him pick up his fruit and knife and walk towards the lounge. She said that the father followed the grandfather and started hitting him and picked up a small side table and broke it against the side of the grandfather’s body. She said that the father then tried to twist the grandfather’s arm. The grandfather was still holding the knife in his hand and the father took the grandfather’s arm and tried to twist it back towards the grandfather’s body so that the knife the grandfather was holding would actually hurt the grandfather. She said that the father grabbed the knife with his hand and suffered a cut to his hand. He then dragged the grandfather outside into the yard where he was still hitting the grandfather and trying to push the knife that the grandfather was holding tightly in his hand into the grandfather’s own chest. She said she heard the father shouting “I’m going to send you to hell. You are a goner”. The mother said that neighbours called police and they arrived fairly soon thereafter. She said that the father had injuries to his body caused by the knife. The grandfather had four cracked and broken ribs and injuries to his own body from the knife. She had injuries to her own body from the beating and a dislocated rib. She said the police removed the father from the property and applied for a domestic violence order on her behalf.
The father completely denies much of the description given of the incident by the mother. He said that he was not disappointed at all with the fact that the ultrasound revealed that the baby the mother was carrying was another female child. He said that when they returned from the hospital he simply went into the bedroom and quietly stayed in the room worrying about how he was going to support the family with another baby coming into it given that he did not have a job. He said that the mother began to pester him about whether he was going to have lunch and as to why he was apparently upset. He said that he stood up and was talking to her with his back facing the bedroom door when the grandfather attacked him with a 30 cm knife from behind, stabbing him in the back. He said that he then began to defend himself to prevent the grandfather from stabbing him further whilst the mother was shouting “kill him, kill him” to the grandfather. He said that in struggling with the grandfather they spilled out the front door and into the yard where the grandfather continued to stab him until a neighbour came to his rescue, disarming the grandfather.
There was another interesting piece of evidence the father put before the Court. He exhibited a letter to his affidavit of evidence in chief filed 20 July 2009. It was in Arabic script. He also exhibited an English translation done by a NAATI accredited Arabic – English translator. He said the letter was written by the mother in October 2005 and given to him by her. He maintained, in evidence, that he had nothing to do with the letter being written. On the other hand, the mother said she had written the letter but that the father had forced her to write it and told her what to say in it. The content of the letter is, in my view, worth setting out in full. It says:
I, undersigned, [the mother’s name], hereby attest and declare the following without any pressure, or under any weakness or similar, and of my free will:
Myself and my partner, [the father’s name], fully knowing that it is impossible for us to continue living in my father’s house under the constant emotional and psychological pressure placed on us while we live there (rented house) have decided the following:
That I and my partner in life, my husband, and my child will leave this senseless life and move to another place, even if its rent be higher and cost us more, so that we can live a happy life away from the conflict and troubles caused by my father in his house. I have also made an oath before God to my husband and my child, that I will remain with them and shall not return to my father’s house again. I shall not even contact my father by phone to check on him, because I have tried and the results after having lived with him for two years. As such, I have decided to look forward to the future and not to return to the past again, and to live a happy life with my small family.
Other relevant evidence on these key issues
The grandfather gave evidence both in affidavit form and orally during the trial through the assistance of an interpreter in the Arabic language. He was 83 years of age at the time of the trial and relatively frail in his physical presentation. His evidence essentially corroborated the mother’s evidence in all important respects. He said that soon after his daughter married the father and the father moved in to live with them in Melbourne he began to notice what he described as strange and inappropriate behaviour from the father.
He recalled the time the wardrobe was being delivered to their home in Melbourne and the father demanded that the mother who was then pregnant with the first child help him physically move the wardrobe. The grandfather said that he actually verbally criticised the father for this and this is when the delivery person intervened and helped move the wardrobe.
He said that he observed an occasion when baby E was about two months of age, when she began to cry whilst the father was on the telephone. He observed the father’s response was to run into the bedroom where the baby was and to pick her up and shake her in a way that was described as “viciously non-stop”. Both he and the mother responded by going to the father to take baby E from him.
He gave evidence that he observed disputation and argument between the mother and the father over E’s bath time. He recalls a time when he went to the bathroom to investigate and saw the father pushing and pulling the mother by the hair. He said that the father stopped when he saw the grandfather approach and the grandfather said he admonished the father.
He gave evidence of recalling an occasion in February 2005 when the father grabbed all his shirts from the wardrobe that the grandfather observed were clean and ironed. He said that the father demanded that the mother re-wash all the shirts by hand and not with a washing machine. He heard the father tell her that he expected her to wash his shirts by hand as the washing machine ruined them. The grandfather said that his daughter refused as the shirts were already cleaned. The grandfather said that he saw the father grab his daughter by the hair and force her to wash the shirts. He said he heard the father say to her “when I order you to do something, you do it”. The grandfather observes that he saw the father take off his shoes and force the mother to wash his feet, shouting at her to do so. He said that he heard the father forbidding the mother to talk to the grandfather. He said that he saw the father push the mother into the bedroom, locking her and baby E in the bedroom for much of the day. He said that he remembers the father doing that often to punish the mother.
The grandfather said that he recalled an occasion when the father yelled at the mother “you stupid, go make me a cup of coffee”. The grandfather said that the mother did do that and when she returned with the cup of coffee the father had a sip then threw the hot coffee at the mother causing her to suffer a burn on her stomach. He describes another occasion when he was talking with the mother in the kitchen when the father suddenly appeared, grabbed the mother by the hair, pushed her and punched her and told her not to speak to him.
The grandfather said that the father would not let him (the grandfather) speak to his granddaughter, baby E. He said that whenever the father saw the baby coming to the grandfather he would become furious, pick the child up and take her into the bedroom and put her into the cot and tie her into the cot with a belt. He said that the mother’s response would be to run into the bedroom and to untie the child and that arguments and fighting would result.
The grandfather refers to the period of time that the mother and father travelled with the baby to Egypt. He says that on their return he observed the mother to be pale and looking as if she had lost weight. He said that when he asked the father where he had taken the mother during their visit to Egypt, the father’s response was simply “no time for touring”.
The grandfather says that on 12 November 2005 he actually contacted the police as he was scared that the father was ruining his life as well as the mother’s and the baby’s lives. The grandfather says that the father told him that he wanted him (the grandfather) dead and that he would take E away and deprive her of her mother.
The grandfather gave evidence about the incident that occurred at the house on 1 April 2006. He said that the father attacked him. He said that he woke after his daytime nap and went to the kitchen to prepare himself some fruit to eat. He said that he was peeling the fruit and then suddenly felt himself being pushed. He looked around and saw that it was the father and that he had a very angry look on his face and was swearing and screaming at the grandfather. The grandfather says that he simply put out his hand to the father and said “enough is enough. I don’t want to talk to you”. He said he walked from the kitchen to the lounge carrying the fruit and the knife on a plate to eat. Whilst he was holding the knife the father grabbed his hand in which he was holding the knife and in that process the grandfather says that the father cut himself on the knife. The grandfather said that the father was hitting him and pushing him and biting him on the left hand. He said that the father then picked up the coffee table and hit him with it and that he suffered broken ribs as a result. He said that the father pushed him outside and kept hitting him and that as they went outside they fell down and rolled on top of each other. He said that the father kept hold of his hand in which he was holding the knife and was shouting “you’ve lived long enough, it’s time for you to go now”. The grandfather gave evidence that neighbours called the police and the fight subsequently ceased.
The father’s Sydney friend, Ms D, with whom the couple had stayed after their return to Sydney from their honeymoon, said that she observed other things that troubled her when the couple and baby E were visiting her in Sydney on another occasion. This was when E was one year old and starting to walk. She said the family was staying with her again. She said she observed the way the father related to baby E in that he would treat her poorly and with excessive force. She said that he would restrict and control the amount of food that the mother fed the child. She said that she observed the father pushing the mother and swearing at her in front of every other person in the house. She said she also saw the father trying to teach baby E to hit the mother on the face during that visit.
She gave further evidence that during the course of that visit, when the mother was preparing to give baby E a bath, the father started to take quite an interest in proceedings. She said she observed the mother take the baby into the bathroom and to shut the door. She then saw the father push the door open insisting that he wanted to bath the baby. She saw a struggle when the mother tried to push the father out of the bathroom and she heard screaming after which she then determined to intervene. She said that she told the father that the way he treated the mother was not appropriate.
Ms D said that the family visited and stayed with her again when the mother was pregnant with the second child in early 2006. She said that again she witnessed the father constantly calling the mother names and treating her with no respect at all. She said that the father suddenly wanted to go out one night at around 10.00 pm and that he then ordered the mother to put a child’s car seat in the car. After the mother had fitted the car seat into the car, the father pushed her away and said “you are not that genius”. She said that during that visit she also saw the father demand the mother bring their bags into the house while he just sat there and smoked a cigarette. She said that she observed the father would never leave the mother on her own, that he insisted that she stay with him and would not permit her to speak to any other person without his permission. She said that if anyone actually spoke to the mother that the father would take over the conversation directing it away from her and towards him.
Ms D said again the family visited her in July 2005 after their return from their holiday in Egypt. She said the mother appeared to be sad whilst the father was excited and full of energy. She said the mother also looked to be pale and appeared to have lost weight. Ms D said that the mother told her that whilst in Egypt she did not even get to see the pyramids and was locked indoors sick with baby E. Ms D said that the father confirmed that in Egypt he had been busy and had had little time for his wife and baby.
Ms D then described the breakdown in her friendship with the father after he began to abuse her in her own home, after Ms D again was telling him that his behaviour towards the mother was not acceptable in her house. She said that he then started to abuse her and accused her of taking sides, saying that she should take his side as they are from the same background. Ms D said that even her children had to intervene, telling the father that they did not wish to see their mother getting stressed like that. Ms D said that she went to bed after telling the father that she did not want to see him in her home again.
Ms D finished her evidence by setting out that the mother had contacted her on or about: the 24th of October 2005; the 7th of November; the 20th and 21st of November 2005; the 6th of December; the 18th of December; the 20th of December 2005; and again on the 1st of January 2006 – all the time asking Ms D for advice as to how to handle the father’s poor behaviour towards her. She said that she advised the mother to go to counselling with the father. She said that the mother had told her that the father refused to go to counselling with her and threatened her that she should not mention this word again.
Extensive records from the Queensland Police Service, the New South Wales Police Service and Hospital F were also produced to the Court pursuant to subpoena and much of the material was tendered into evidence by counsel for the Independent Children's Lawyer.
Hospital F records certainly revealed that the couple had been to see Dr S in October 2005 about pregnancy issues as the father had said. They were referred by the doctor to Dr G at the hospital. The notes record that the parties had been attempting to fall pregnant for some ten months and had been unable to, thus explaining why they were seeking medical assistance. The notes certainly reflect that sperm analysis was requested by Dr G and that the outcome of the first test was that the father was considered to have a low sperm count. There is no indication that medication was prescribed to him but arrangements were made for a further test to be undertaken. The notes reveal that before that happened the mother discovered that she had fallen pregnant. That evidence revealed that both of the parties were mistaken in some aspects of their evidence about that matter. Particularly though, the father was wrong when he asserted that sperm analysis had shown that this sperm count was normal.
The New South Wales Police records reveal that in February 1990 in the Local Court, the father was convicted of a charge of assault and that he was sentenced on a recognisance of $250 to be of good behaviour for two years and not to assault or molest the victims. There is no mention of who the victims were. In his cross-examination, the father alleged no memory of the circumstances giving rise to that charge or who the victims were. He did concede at one point that it was probably his first wife. It is noted that at that time he was married to his first wife and there was a child of that marriage.
Police records went on to reveal that in January 1996 the police received a complaint from a woman who had been the father’s second wife. She is reported to have told police that she and the father had divorced in recent months after having been married for one year. The woman is recorded to have told police that the father had been harassing her, following her and starting verbal arguments. The record reveals that the woman said that she would attend at court and obtain an order in relation to the father’s behaviour. The police records reveal that in February 1996 an apprehended violence order was made against the father.
The records then reveal that in June 1998 police received a further complaint from the woman who was the father’s second wife. Reference was made to the fact that she had an apprehended violence order in place against the father between February 1996 and February 1998 but since it had expired the father had started to phone the woman and had said to her “I will not give you any chance to work anywhere, and I will follow you all over the country”. She complained that he had also been ringing her place of employment and abusing her boss as well as ringing members of her family and abusing them. She was seeking a new apprehended violence order. The records reveal that she obtained one later that month.
In his oral evidence, the father confirmed that he was aware that his second wife had obtained apprehended violence orders against him, but stated that he was not even in the country at the time she was alleging he was harassing her in 1998. He says that he turned up at the Local Court on the apprehended violence application but just left and did not defend the application when the police allegedly told him that the order would be made regardless of what he said. Although the father referred to having records that would corroborate his evidence that he was out of the country throughout the time the woman complained he was harassing her, none of those records were put into evidence by him.
The records reveal that in November 2000 the father actually made a complaint to police that he had been assaulted by being slapped on the face after a traffic incident. The records reveal that the father complained to police that he had been driving when he indicated to move into the right hand turning lane on a highway in the west of Sydney. He said that he was partly in the lane when he noticed a car drive up onto the grass median strip in the centre of the road, overtake him and then suddenly jump in front of the bus. He said that the driver of that vehicle got out of the car walked up to the father and said “did you see me in the mirror” and then slapped him with his left hand on the father’s right cheek. The records record that the father told police that the assailant then returned to his vehicle and drove off. The father wrote down the number plate of that vehicle and went to the police station to complain. The police record reveals that police contacted the alleged assailant who told police that he had actually been run off the road by the father and forced to drive up onto the median strip to avoid collision. He said that he did get out of the car and had approached the father and touched him on his shoulder. The record reveals that the alleged assailant strongly denied that he had slapped the father as alleged. Police recorded that no visible injury had been observed on the father’s face. There is no suggestion that the matter was taken any further.
Police records refer to another traffic event involving the father that occurred on 22 December 2000. Police received a complaint. The records show that the driver complained that he had been sitting in his car making a phone call, parked close and parallel to the gutter. Whilst on the phone he said he saw the vehicle being driven by the father driving towards his car and about to hit it. He blew the horn on his car but the vehicle kept going and hit the front driver’s side bull bar of the complainant’s car. The father stopped and got out of the vehicle and the other driver asked him to supply his details. The other driver complained to the police that the father had said “no, your fault, it’s a government vehicle, you will be paying for it”. He said the father then drove off. Police interviewed the father about these allegations and he said that he was in the street and had checked both of his mirrors and saw nothing. He said he did a u-turn and then heard a noise and felt a bump, so he stopped the vehicle and got out. He said he saw the car with the other driver in it who was on the mobile phone. He said that the other driver said to him “you hit the bumper bar” and then showed him damage which the father said was on the front gutter side of the bumper bar. The father denied having caused that damage. The father said that there was some conversation between him and the other driver after that. The father denied to police that he had actually hit the car that was stopped. It appears no further police action was taken.
Police records reveal further contact with the father on 25 May 2002. They record that police were called to the father’s address by his girlfriend who had called police because she was worried about his emotional state and was fearful for his wellbeing. Police records reveal that when police arrived the father was crying uncontrollably and would not talk to police. His girlfriend told the police that he had threatened to jump off the balcony and that she had locked the doors preventing him having access to the balcony. Police recorded that the father was in an inconsolable state and that they had serious concerns for his safety and well being. They spoke to him for about 20 minutes and told him that they intended to take him to the hospital so that he could be spoken to by a doctor. When he refused to accompany police they picked him up by his arms and he began to wave his arms around, refusing to be taken. Police then handcuffed him out of concern that he might injure himself or one of the police officers. They recorded that the father continued to cry and scream in the back of the police vehicle but upon arrival at the hospital he calmed down and began to behave quite normally. He was seen by a doctor who said that they could not keep the father at the hospital under the terms of mental health legislation. Police offered him a lift home but he declined saying that he would rather catch a taxi.
When the father was cross-examined about this particular record during the trial, he told the Court that he had become upset that day when his girlfriend had asked him to participate in sexual relations with her and with her former boyfriend at the same time. He said that that is what had distressed him.
The father again came to police attention in August 2003. Police were called to a domestic dispute at an apartment occupied by another former girlfriend of the father’s. Police had been called by a friend of the woman. When they spoke to the woman she told them that she and the father had met about two months previously and begun dating. She said that their relationship had soured recently when the father became obsessive and possessive towards her. She said that the week before this incident the father had taken her kitten after they had had an argument and had returned the kitten the next evening after she had ended the relationship over the telephone. She said that he had come to her apartment at about 11.30 pm that night to speak to her. She let him inside. She said that the father had contacted her friend on the woman’s mobile phone and had an argument with him. That friend was the person who called the police. She said that the father had started to struggle with her and a fight had broken out. She said that she had been grabbed around the neck by the father and they ended up struggling on the kitchen floor. She said that she kicked and punched him until he got up and ran outside the apartment. She said she had been screaming throughout the incident. The police records note that the woman said she did not want to pursue an assault charge against the father but wanted to apply for an apprehended violence order as she feared for her safety and she believed that he had started to stalk her. The records also reveal that the woman said she also assaulted the father in her self defence and did not wish for charges to be laid against him because she had given as good as she had received from him. Police records reveal that no charges were to be laid but that an application was to be made for an order on behalf of the woman.
Police records also reveal that on the same day the father presented at a police station where he informed police of the incident. He said that he had visited the woman at her home and that an argument had begun when the woman accused him of stealing her kitten which had gone missing over the previous weekend. He said that the woman began shouting at him and had told him that her neighbours would call the police because she was screaming and that he would get into trouble. He said that she was pulling at his jacket and jumper and struck him on the left cheek whereupon he left her premises. He said he had driven straight to his local police station to report it and that he has no immediate fears for his safety and is aware of the procedure to obtain an apprehended violence order if he felt it was necessary.
When the father was cross-examined about this at the trial, his evidence caused me to conclude that he had left the woman’s place that night knowing that someone was likely to have informed the police of the incident that was occurring. He then attended a police station close to where he lived in order to put some exculpatory story on police records.
The police records go on to reveal that a little later that month the same woman again complained to police that she had been to the father’s place to retrieve some of her belongings that he still retained at his home but that he would not give them back to her. She told police that she had immediately informed him that she was going to go to the police station and make a complaint. Police records show that the father then turned up at the police station and gave the woman her property back. The records reveal that after the woman satisfied herself that nothing was missing from her property she left the police station and then the father asked police to take a record of the incident. That of course is around the time that the father and the mother in this case made acquaintance and quickly committed to marry.
Queensland Police Service and Hospital F records that were tendered into evidence also included a significant amount of material in respect of the incident of violence that happened in the parties’ home on 1 April 2006. The injuries that the father suffered were quite serious, though not life threatening. He spent a number of days in hospital as a direct result. He suffered stab wounds to his back, buttocks and chest as well as lacerations to his hands. Police undertook investigations and detectives of the CIB interviewed the parties involved and witnesses to the incident.
The police records reveal that when the father was interviewed at a police station the police considered it to be a very difficult process. They had noted that the father’s behaviour was erratic and dramatic and tended to hinder their investigation more than assist it. However, statements obtained by the police from the father, the mother and the grandfather were basically consistent with the positions they each offer to the Court in these proceedings. It is clear that detectives chose not to charge the grandfather with any offence after their initial investigation, apparently accepting the version of events given by the mother and the grandfather and rejecting that given by the father. Detectives appear to have recorded a view that the grandfather acted in self defence.
However, after the father returned from his two year stay in Egypt, unsatisfied with the outcome of the police investigation, he made complaints to the police and to the Crime and Misconduct Commission about the way in which the investigation had been conducted and concluded. Ultimately, apparently consequent upon the consideration of those complaints, the grandfather was charged and eventually indicted before the District Court on a charge of unlawfully wounding the father. In August 2011, just prior to the commencement of the trial in these proceedings, the grandfather pleaded guilty to that charge. The grandfather was sentenced to two years imprisonment which the District Court Judge wholly suspended.
Queensland Police records reveal that the knife that the grandfather had in his hand that day that caused the wounds to the father was in fact only a 20 cm long blade, not 30 cm as asserted by the father. They also revealed that Queensland Police had been called to the home of the parties on several occasions in the period of time that the parties lived there leading up to the incident on 1 April 2006, to attend to incidents of domestic violence. Some of those calls were made by neighbours and some were made by occupants of the house themselves, such as the grandfather. The records also reveal that mutual domestic violence orders were applied for and obtained by police in respect of both the father and the mother as a consequence of the incident that occurred on 1 April 2006.
My findings in respect of these key issues
Whilst I am satisfied that the mother’s evidence was certainly not correct in all respects, and that the father has demonstrated by documents that the mother had some dates and timing wrong, as well as erring in relation to other things such as the identity of the particular doctor who referred them to Dr G in respect of fertility issues, I am most certainly satisfied that the mother’s evidence was otherwise honestly given by her. I do not put the mistakes she made down to dishonesty but rather to mistaken recollection.
In respect of some significant matters, the evidence of Ms D and the evidence of the grandfather corroborated the evidence of the mother and contradicted the evidence of the father. Ms D, it is worthy of again pointing out, was the work-colleague and friend of the father even before he knew the mother. She is also of Egyptian background. The father could offer no plausible explanation as to why Ms D might be giving false evidence against him, in favour of the mother. I had no cause at all during the course of her cross-examination, or other consideration of her evidence to conclude that she was not telling the truth. As I have already remarked, I accept that her evidence was shown not to be entirely accurate in all respects but I attribute that to vagaries of memory after the effluxion of time rather than any determination on her part to be untruthful.
Similarly, although the grandfather did not get all of the dates and times correct, I found no reason not to believe his evidence overall. Although he is the mother’s own father, he impressed as a man who had put up with a lot of poor behaviour from his son-in-law, growing to resent him and to believe that he was not a good husband to the mother nor a good father to the two girls. However, I got no sense that he was determined in some way to do harm to the father through the Court process.
I preferred the mother’s evidence generally where it conflicted with the father’s evidence. I clearly reject as preposterous the father’s evidence that the grandfather and the mother conspired to murder him on 1 April 2006 and to set up the defence of self-defence. I do not accept that the grandfather snuck up behind the father and wilfully stabbed him in the back trying to murder him or that the mother shouted to her father “kill him, kill him” as the father alleges. I accept the mother’s evidence and the grandfather’s corroborating evidence as to what happened on the 1st of April 2006, including the mother’s evidence that the father’s bad mood and extreme behaviour that day began when they both learned from a doctor that the baby the mother was carrying was another female. It is extremely concerning, and in my view a clear pointer to the lack of credibility of the father generally, that he would go so far as asserting a belief that the mother and her father conspired to murder the father and to create a defence of self-defence. Although the grandfather pleaded guilty to a charge of unlawfully wounding the father, I am satisfied that the events of 1 April 2006 did not happen as alleged by the father.
Counsel for the mother pointed out in his submissions that the mother was not aware at all of the matters that the NSW Police records contained when she deposed to her case against the father in her affidavit material. His submission was, in essence, that the evidence contained in those records demonstrates long-standing attitudinal and behavioural characteristics on the part of the father that are completely consistent with the behaviour that the mother asserted the father demonstrated throughout their relationship. I consider there is substantial merit in that submission.
I got to observe the father and listen to him as a litigant in person for the first four days of the trial before counsel appeared for him for the final two days. I watched him in the witness box being cross-examined and I watched him cross-examine the mother and the grandfather. I could not say that I considered the father to be a truthful witness. I found him to be coldly calculating in respect of most of the answers he gave and most of the things he said. By that I mean that I thought the father carefully considered most of what he was going to say before he said it to determine the advantage or disadvantage it would give him in the proceedings. Two examples I immediately give are:
(i) When cross-examining the grandfather through the interpreter, after the grandfather gave an answer in Arabic and before it was interpreted into English, the father sternly said in English to the grandfather (who would not have understood it) something like “don’t you swear at me like that, you should not be so rude as to swear at me like that here.” I was satisfied that the father was wanting the Court to accept that the grandfather was being rude to him and swearing at him so as to discredit the grandfather. However, I immediately asked the interpreter if the grandfather had actually rudely sworn at the father in the Arabic language as asserted by the father. The interpreter told the Court, quite earnestly, that the grandfather had not done so. The father did not even attempt to quarrel or argue to the contrary and, without apologising, just went on with his questioning;
(ii)When asked questions about his reasons for not having any contact with the daughter of his first marriage since she was a young girl, the father gave the explanation that the child’s mother was a “difficult” woman and that she simply made it too hard for him. Later in the day, immediately after the luncheon adjournment, the father asked the Court if he could say something more about that issue. When given leave to do so, the father went on to tell the Court that he did not believe the girl, who he had previously referred to as his daughter, was actually his daughter. He said that she had been born during a period when he and his first wife had not had sexual relations for two years and that she had to be some other man’s child. He did not go on to clarify how that explained his decision, on his case, to cease spending any time with her when she was about 12 years old or to explain why he had otherwise continued to refer to her as his daughter. He went on to tell the Court that he simply continued paying child support for that child after separation out of the goodness of his heart. In contrast, the mother gave evidence that the father had refused to pay child support for that girl whilst they were together and that she overheard him shouting on the telephone to officers from the Child Support Agency that he was not working and would not pay. She gave no evidence that she ever heard him assert that the child was not his child.
I ultimately considered the father to be a man who would say anything that he thought would help his case at the time without much regard for the truth. He tried extremely hard to have the Court accept him as a patient and considerate man, but often slipped into impatience, sarcasm and what I considered to be over-acting and obsequiousness.
On the balance of probabilities, I accept the mother’s evidence that the maintenance of control through violence commenced during their honeymoon. I accept the evidence that the father demonstrated anger, control, violence, disrespect and abuse to the mother in the presence of Ms D on the return to Sydney from the honeymoon. I have no reason at all to consider that the mother made up the evidence about the father’s behaviour at the restaurant when they were first back in Sydney. Sometimes evidence has a distinct ring of truth about it. The mother’s evidence about that incident did. It is difficult to conceive where the idea to make such an assertion could have sprung from if it did not come from the well of truth.
Similarly, notwithstanding the father’s “righteous” assertions that female circumcision is not part of his religion or his culture and that there are no such things as nuns in the Egyptian Coptic Christian religion, absent independent expert evidence supporting his assertions, I accept the evidence that the mother gave about the father’s expression, during their relationship, of his determination to have baby E circumcised when she was a little older. I accept evidence the mother gave about the father’s family’s discussion of the subject when they were in Egypt. I accept the mother’s evidence that the father took her and the baby to a convent in the desert somewhere outside
Cairoand attempted to make some arrangement with the convent for E to be committed to join the convent in later life, without prior discussion with the mother. I do not accept his “indignant” assertions that the mother simply made up such allegations to discredit him. I do not accept that she fabricated those allegations.
I accept the mother’s evidence that the father did not show her around the tourist sights in Egypt and, contrary to his assertion, did not even take her to see the pyramids outside Cairo. I do not accept that the mother would make up an assertion that the father did not even take her to see the pyramids on a seven week holiday to Egypt, an assertion that her father said she complained of on her return, if he had in fact taken her to see them. I consider his assertion that he had taken her to see them to be wilfully untrue.
I do not accept the father’s evidence that the mother wrote the letter that I have set out in these reasons without his intervention. All of the content of the letter, from beginning to end, particularly the expressed commitment never to even contact the grandfather again by phone to check on him, in my view, goes entirely against the loving commitment the mother has demonstrated to the care of her aging father since before she even met the father. I do not accept that she wrote that letter single handed and of her own volition as the father contends. I accept her evidence that the letter contained that which the father said she had to write and sign. It is further evidence of the control the father tried to continually exercise over the mother’s life and his denial of that conduct. This denial like his denials of most of the matters alleged against him, is very concerning.
I accept the mother’s evidence that the father was physically violent to her as well as verbally, emotionally, sexually and financially abusive of her. Although the mother had an incorrect recollection of the state of advance of her pregnancy at the time she said she saw the event, on the balance of probabilities, I particularly accept her evidence that sometime in the month before their final separation she witnessed the father masturbating in their bedroom whilst the baby was present in her cot in that room. More importantly, I accept the mother’s evidence as to the father’s reaction and what he said to her when she went in and took the baby from the room. The father was abusive and threatening and his conduct would have seriously disturbed the mother. I do not accept his denial and his evidence that he has not masturbated since he was 16 years of age.
In respect of the mother’s evidence that she saw the father inappropriately touch the baby girl’s genitals, I stop short of making a positive finding that it happened. I am not positively satisfied that it did not happen, but given that the mother only apparently asserted it for the very first time when she was in the witness box during the trial, and the father was not even cross-examined about it by the mother’s counsel, I am not prepared to find that it happened as the mother says. In so deciding, I am mindful of the principle that does not require me to make a finding one way or the other as to whether such an asserted act of sexual abuse occurred or did not occur, and that ultimately it is a question of determining whether or not there would be unacceptable risk to the child or children if the orders sought by the alleged abuser were made.
I go on to record that I accept the evidence that the father slapped the mother on the face in front of the child and said that is what he was going to teach the child to do. I also accept the evidence that the father forced the mother to bathe his feet and give him pedicures. I reject as untrue the father’s denials of these allegations.
The mother also gave evidence that since their separation and the father’s return from his two year stay in Egypt she received abusive telephone calls from a private number fairly regularly for nearly a year. She kept a contemporaneous record of the date and time each such call was received. She said that she recognised the father’s voice and that he made threats to her such as “I shall revenge” and “you are a dead woman”. She said that she made complaints to the police but was told by the police that as the calls were recorded as coming from a private number it could not be proven that it was the father. She said that she changed her landline telephone number and received no more calls. She said that the father has also been rude and abusive to her on a couple of occasions when she has accidentally come into proximity with him outside courts. She said she has even experienced the father coming by her home in his car and calling abuse to her. I accept all of that evidence. Those facts depict a character quite different in fact to the one the father would have the Court accept he truly is. The father was not able to persuade me that he did not do those things and that he did not have the sort of character the mother’s evidence depicted.
Other evidence and the consequent findings
A psychological assessment of the father was undertaken by a forensic and clinical psychologist in early 2011. I understood it to have been prepared in respect of an application being made by the father for criminal injuries compensation following the 1 April 2006 incident. The report was tendered by the father and, without objection, admitted into evidence (exhibit 9) in the trial before me. There was no cross-examination of the report writer.
The report reveals that the psychologist has, not unexpectedly, recorded and, prima facie, accepted the father’s version of the manner in which he received his injuries. Relevantly, the report records the following observations:
A number of aspects of [the father’s] self-description suggest noteworthy peculiarities in thinking and experience. He is likely to be a socially isolated individual who has few interpersonal relationships that could be described as close and warm. His social isolation and detachment may serve to decrease a sense of discomfort that interpersonal contact fosters. His thought processes are likely to be marked by confusion, distractibility, and difficulty concentrating, and he may experience his thoughts as blocked, withdrawn, or somehow influenced by others.
[The father] describes a level of suspiciousness and mistrust in his relations with others that is unusual even in clinical samples. Such a pattern is often associated with prominent hostility and paranoia. He is likely to be a hyper-vigilant individual who often questions and mistrusts the motives of those around him. He is extremely sensitive in his interactions with others and likely harbours strong feelings of resentment as a result of perceived slights and insults.
…
[The father] describes a number of problematic personality traits. His responses suggest that a major problem for him lies in the area of identity issues. He appears uncertain about major life issues and has little sense of direction or purpose in his life as it currently stands.
The psychologist also recorded that the father reported experiencing recurrent thoughts related to a suicidal act. The psychologist noted also that the father described himself as a very meek and unassertive person who has difficulty standing up for himself. He reported that the father scored in the extremely severe range on the depression scale and on the anxiety scale and on the stress scale. He expressed the opinion, at the end of his report, that the father meets the criteria for major depressive disorder and chronic post-traumatic stress disorder and that his day to day functioning would be significantly impacted by these psychological problems.
Given my findings of fact about the incident in which the father suffered his wounds and the acceptance thereby that some of the information given to the psychologist by the father was not correct, I do not consider that I can place a great deal of weight on the psychologist’s report and the opinions expressed within it. The fact that the report was not actually put into evidence by affidavit in advance of the trial with the writer being made available for cross-examination during the trial also reinforces my view on this. Similarly reinforcing of that view, is the fact that I do not accept the father’s self-description reported by the psychologist (as referred to in [20] hereof) that he is “a very meek and unassertive person” who has difficulty standing up for himself. Nevertheless, the personality and psychological issues that it points to do provide additional basis for concern about the emotional well-being of the father and his capacity to provide appropriately for the emotional well-being and development of the two little girls who are at the centre of this case.
The ICL put into evidence an affidavit and attached report of a Family Consultant from the Court’s Child Dispute Services section who undertook the s 65L supervision of time the children spent with the father in late 2009 and 2010. She expressed the opinion that the father does not present as having a natural ability with young children and that at the end of the four visits there had been little progress in the girls developing a relationship with their father. The Family Consultant’s concluding remarks include observation that the mother has maintained a high degree of anxiety about the father which she does not appear to be able to contain. The Family Consultant thought that the mother presented as genuinely believing that the father poses a real risk to her and that he intends exacting revenge on her. It is clear, from the mother’s evidence, that she thinks he intends to do this through the children.
Evidence from the Co-ordinator of C Contact Centre was also before the Court. She reported on the observations of contact centre staff during the supervised sessions the father and the children spent together between February 2010 and July 2011. Some concerns about the father’s interaction with contact centre staff on one occasion, particularly his expression of his views about the conditions being imposed upon him, were noted. However, I do not consider them to be of serious concern in the overall circumstances of this case. Otherwise, the report of the Co-ordinator presented a reasonably positive picture of the father’s commitment to attending for his scheduled time with the girls over a reasonably lengthy period of time and some increase in the affection the girls showed to their father over that time after initially demonstrating levels of distress at the commencement of the visits. The report noted that there had been progress in the relationship between the father and the children and an evident reduction of distress exhibited by the children. It noted that the girls “have shown signs of their enjoyment of contact visits”.
The Co-ordinator also reported that the staff considered that the two children are a little confused over who is their “daddy”. The children were heard and understood to be calling the grandfather “daddy” and it was said that they believe him to be the “real daddy”. Whilst they were also reported to be calling the father “daddy” during the contact visits, the evidence supports a finding that the girls call their grandfather “daddy” and think of him as their “dad”. The mother was cross-examined about the issue and said that whilst they call the grandfather “daddy” they know he is really their grandfather and do not believe him to be their father. If that is the case, it seems to me that continuation of the use of the word “daddy” by the girls is conducive to confusion for the girls and for third parties and not in their best interests. In my view, changing that practice would better serve the children’s best interests.
The Consultant Social Worker who provided the family report that was put into evidence by the ICL observed that if the mother’s allegations of violence are accepted by the Court then it might be classified as “episodic family violence.” He opined that such violence can produce issues of complex trauma for adults and mental health issues to clinical levels for children who witness it. He expressed the opinion that it is reasonable for the mother to be most apprehensive of the father and fiercely protective of her children if she has actually experienced that which she has reported. He said it is also a factor which may contribute to more enmeshed dynamics between the children and the mother, such as he observed to some extent in his interviews with them.
The Social Worker expressed the view that the children’s interaction with their father would, most likely, be “shaped by the heightened arousal and concern of the mother”. He went on to say that if the violence happened as alleged by the mother that the children will experience “vicarious trauma” if they continue to see their father. I understand that to mean that they would continue to suffer by experiencing the ongoing anxiety of their mother.
He then went on to express the view that it “is difficult to see how it would be safe for the children to spend time with [the father] unless it is supervised” in circumstances where the allegations made by the mother against the father were accepted as true. He said that acceptance of the mother’s allegations would have to lead to concerns about the parenting capacity of the father who would have to be found, in such circumstances, to have a propensity to violence and abusive behaviour towards the mother and an inability to filter his stance with his children. He also expressed the view that if the mother’s allegations are accepted, it would be likely that the mother would be most apprehensive and concerned about the children spending time with the father and that her mistrust and hyper-vigilance would be very obvious to the children.
The Social Worker then went on to discuss arguments for and against the maintenance of contact between the father and the children through long-term supervision. He acknowledged that structured, long-term supervision does little to allow meaningful relationships to develop between children and parents as it limits the extent to which a child experientially trusts a parent. He observed that this disadvantage is compounded where the parent with whom the children live is unable to contain her mistrust of the other parent. However, he then pointed out that long-term supervised contact still presents the children with the opportunity of gaining independent knowledge of their father within a structure that minimises risk to them. He said this assists the children, in the long term, “somewhat” to know and appreciate the significance of their father in terms of their origins and identity. He did ultimately express the opinion that if the Court accepts the allegations of the mother and considers that any time the children spend with the father should be supervised on a long-term basis that such supervised visits should not occur as frequently as they have been. He recommended a supervised visit about once each six months, in the event of such an outcome.
The Social Worker also recommended that the mother be given sole parental responsibility as it is very difficult to see how the parents in this case would be able to make joint decisions for their children over the long term having regard to the history of conflict between them and the absence of co-parenting to this time.
What are the principles to be applied in determining the parenting orders to be made?
Parenting orders to be made in respect of the parties and their two daughters must be made with regard to the best interests of the little girls as the paramount consideration.[1] The Family Law Act 1975 (the FLA) expressly sets out how the Court is to determine what is in the best interests of children who are the subject of proceedings in the Court.
[1] s 60CA and s 65AA of the Act
Determination of what is in the best interests of a child requires consideration to be given to expressly listed “primary” and “additional” considerations.[2] The process of determination is a broad one. Indeed, one of the expressly listed “additional” considerations, namely s 60CC(3)(m) lists “any other fact or circumstance that the Court thinks is relevant”, as a matter to be considered.
[2] s 60CC(1), (2) and (3) of the Act
There are expressly listed “Objects” and “Principles” that underlie those Objects set out in of Part VII of the FLA. I consider it worth setting those out.
Section 60B
(1)The objects of this Part are 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.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
I have previously discussed the application of these Objects and Principles in parenting cases and the relationship between them and the matters required by s60CC to be considered when determining the best interests of the children in question.[3] I have also previously referred to the Full Court’s decision in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 and to the principles that were there set out. I am mindful of what I have said previously about these matters.
[3] Preston v Preston [2011] FamCA 618, at paragraphs [37] – [47]
As the Full Court said in B and B, the ultimate obligation of the Court is to apply, in a commonsense way, the individual sections of the FLA so as to achieve the best interests of the children in the particular case. The actual weight to be attached to the individual components of the statutory provisions will vary, sometimes significantly, from case to case.
In that decision of B and B, their Honours observed that it is well accepted that in most cases meaningful contact by a child with both of their parents is important to their welfare in the short-term and the long-term. Their Honours were quick to acknowledge though, that there may be cases where the best interests of the child will require contact with a parent, or even both parents, to be curtailed or even terminated. Sadly, many of the parenting cases now dealt with in this Court are just such cases.
Which parent a child lives with, where the child lives, how much time the child spends with the other parent and in what circumstances the child spends that time are matters to be determined in each particular case having regard to the evidence that is presented. That evidence is to be considered with regard to the paramountcy of the best interests of the child, against the Objects and Principles set out in Part VII of the FLA, and in accordance with the statutory pathway also provided for in that Part.
What parenting orders are in these children’s best interests?
The competing proposals of the parents in this case could not be more polarised. The father began the trial wanting an equal shared parenting arrangement. However, at the end of the trial, counsel who appeared for the father made submissions that the time the girls spend with the father should initially be supervised for a period, progressing to unsupervised, regular visits after a while. On the other hand, the mother seeks sole parental responsibility for the girls and orders that provide for one period of supervised time with the father each six months.
I have already observed that I have found that the father in this case behaved appallingly to the mother, the grandfather and their first child during the course of his marriage to the mother. I have accepted the allegations of violence, control and abuse the mother has made against the father. They reflect behaviour that is completely unacceptable and an attitude towards women that is not conducive of responsible, co-operative, child-focused parenting alongside the mother in this case. The NSW Police Service records that are in evidence support a finding that the father’s attitudes and behavioural patterns are long-standing. I am satisfied that at the moment they are entrenched. Certainly, the father’s false denial of every serious factual allegation made against him by the mother and her witnesses reflects complete incapacity on his part to change, at least at this point in time. Therefore, as the Social Worker said, it is difficult to see how the children would be safe with the father unless the time they spend with him is supervised. It is also very difficult to see how the mother could feel comfortable and not experience any debilitating anxiety if the children were to spend unsupervised time with the father.
Although the father has demonstrated commitment to maintaining relationships with these two children over the last few years and the interaction between him and the girls has been observed to reflect increasing comfort and enjoyment on the part of the girls, it has always been supervised and very limited in duration. I am certainly not satisfied that the father’s behaviour in the presence of supervisors would be the same behaviour he would demonstrate if the girls were to spend unsupervised time with him. I am convinced by my own observations of the father, as well as all of the evidence before me, that he is a man who is able to carefully maintain a degree of self-control when in the confines of the Court room or a children’s contact centre but that he has a propensity to obsessive control, abuse and violence in his personal relationships, particularly with women. I am satisfied that propensity is unlikely to be controlled and kept in check if he has the two girls in his unsupervised care.
The following reasons – my acceptance of the mother’s evidence of the father’s stated intent to have his daughters circumcised; my acceptance of the mother’s evidence of the father’s stated intent, before the second child was born, to remove their eldest daughter to Egypt and even put her into a convent; my acceptance of the mother’s evidence that the father has threatened revenge against her, even since these proceedings were commenced by him; my acceptance of all of the evidence given about the father’s obsessive, controlling, abusive, violent nature; my rejection of the father’s obsequious denials of the allegations made against him; my acceptance of the genuineness and reasonableness of the mother’s fear of the father and anxiety for her daughters; and the young age of these two girls (8 and 6) – all combine to persuade me that there is an unacceptable risk that these two girls would suffer physical and emotional at the hands of their father if they were to spend unsupervised time with him. In addition, I am satisfied that the anxiety their mother would likely experience if the girls were spending any unsupervised time with the father and the detrimental impact that might have on the girls well-being adds to the unacceptable nature of this risk.
My findings in respect of the father’s behaviour towards the mother rebut the statutory presumption that it is in the girls’ best interests for the mother and the father to equally share parental responsibility for the two girls. Furthermore, I am completely satisfied that the children’s best interests demand that their mother be granted sole parental responsibility for them. That recommendation of the Social Worker is one that I consider is completely supported by all of the evidence in this case. It cannot serve the best interests of children to put in place an order in respect of parental responsibility that requires respectful, co-operative, child-focused discussion and negotiation about the major long-term issues in relation to the children when the evidence satisfies the Court that the parents do not have the capacity for such exchange.
Being satisfied that the mother should have sole parental responsibility for the children and that the children’s best interests require any time they spend with the father to be supervised, the Court is not required to consider whether the children spending equal time or even substantial and significant time with the father is in their best interests and reasonably practicable.
That leaves the Court to determine what orders, if any, should be made providing for the girls to spend supervised time with the father. In this task, I am acutely conscious of the requirement to provide cogent reasons supporting my determination if it be that orders should be made providing for the girls to spend supervised time with their father on an indeterminate basis.[4]
[4]See Moose & Moose (2008) FLC 93-375 and Slater & Light [2013] FamCAFC 4
I begin my consideration of this issue, by repeating my earlier observation that the father has no current relationship at all with his eldest daughter. She is a young adult woman, around 21 years of age, and he has not seen her, if his evidence is to be believed, for nearly 10 years. In fact, I consider it likely that even that evidence was not true and that it is probably a lot longer since the father spent any time with his eldest daughter, a likely result in my view, of a combination of that girl’s mother not permitting it and the father not pursuing it. It should be clear that I do not accept his evidence expressed orally during the trial that he believes this young woman is not his natural child. I consider he gave that evidence, which I did not believe, simply to try and justify the non-existence of any form of current relationship with his eldest daughter. I mention this matter as I consider it points to the prospect that making orders for the girls’ time with their father to be supervised over the long-term might result in a waning of the father’s commitment to maintaining relationships with the two girls. I am concerned that may not in itself be a good outcome for the girls. However, as that is a matter within the father’s control. I am satisfied that he has, at least in the last few years, demonstrated ongoing commitment to developing and maintaining his relationships with these two girls even in the face of a requirement that his time with them be supervised. The girls have been independently observed as increasingly comfortable in their father’s presence. I am prepared to accept that providing for long-term supervised time with the father is, on balance, in the girls’ best interests at this stage of their lives.
Whilst I accept the Social Worker’s observation that long-term supervision does little to allow meaningful relationships to develop between parent and child, in this case I consider supervision is necessary to avoid the unacceptable risk to the girls’ well-being to which I am satisfied unsupervised time would give rise. On the other hand, the Social Worker’s opinion - that ongoing supervised time still offers the benefit to the children of gaining independent knowledge of their father in an environment of minimised risk; knowledge that will assist them in knowing and appreciating the significance of their father in terms of their origins and identity in the long term - is one that I attach significant weight to. If the girls spend no time at all with their father and have no contact with him then I expect there is potential for them to develop completely distorted views about him over time. By spending time with him on an ongoing basis, albeit in a supervised setting, they can be expected to remain safe whilst still being able to continue to know and experience their father and be in a position to maintain at least some basis for a continuing relationship with him if they choose to have one when they are mature enough to safely and sensibly make that decision for themselves.
Ultimately, the careful balancing of the two s 60CC(2) primary considerations and all of the additional considerations causes me to determine that the girls’ best interests are served by making orders for the girls’ time with their father to be supervised and for such supervised time to be of indeterminate duration at this point in time. I also accept that it should not be as frequent as it currently is, as the Social worker has opined in his recommendations. I consider that the orders should provide for the girls to spend supervised time with their father for up to four hours at a time on a frequency of one such occasion each four months. I consider that providing for three such occasions each year will provide greater prospect of the father’s commitment being maintained and the girls retaining more accurate personal memories of their experience of their father between such occasions.
I understand the regime I propose to provide for in the Court’s orders not to accord entirely with that which was proposed in the submissions made by counsel for the ICL. Counsel’s submission, as I understood it, was ultimately that supervised time spent with the father once per month should be considered by the Court in the children’s best interests. However, that is at odds with the recommendation of the Social Worker who was retained by the ICL to report and make recommendations to the Court and I do not recall counsel for the ICL taking up the point with the Social Worker in oral evidence during the trial. I am persuaded that less frequent visits are more appropriate, particularly having regard to the constraints imposed by supervision.
Finally, on this point, I turn to the question of what I currently consider would be required to justify a change from supervised to unsupervised time at some point in the future. At least in my view, any such change to the regime for which the Court’s orders will provide would, in the absence of agreement between the parents, require clearly demonstrated attitudinal and behavioural change on the father’s part and/or a finding of a maturity and capacity in the girls to act in a way to protect themselves from harm at the hands of the father. The first of those requirements could, in my view, only begin to be met by the father through his acceptance of the actions that he has been found, in the face of denial by him, to have been responsible for in the past, along with participation by him in suitable counselling or psychotherapy that helps him to understand and address such inappropriate behaviour. Of course, those are matters for him to consider and act on if he pleases. I will not make them the subject of order in these proceedings.
The orders that I intend to make will provide for the girls’ supervised time with their father to be spent either at a children’s contact centre or with an independent, private provider of supervision, the likes of which, I am aware, can be found on the Gold Coast. This will enable the girls to spend supervised time with their father on an ongoing basis in circumstances where a community based children’s contact service provider, which is prepared to facilitate supervised visits in the form provided for in the orders on an indeterminate basis, may not be found. In all the circumstances, but more particularly having regard to the acceptance of the fact that the mother has borne, currently bears and will likely continue to bear almost all, if not all, of the total responsibility of providing financially and practically for the day to day needs of the girls, the Court’s orders will provide for the father to meet the costs of the supervision of the time the girls are to spend with him, whatever that cost might be. I expect now that these proceedings are concluded by delivery of judgment that the father will be able to focus his energies on obtaining remunerative employment again, if he has not already done so. I do not expect the costs of supervision of up to four hours with his girls, three times each year, will be prohibitive for him.
The Court’s orders will provide for the parents to keep each other informed of at least a postal address at which they can be reached by postal communication on an ongoing basis. They will provide for the arrangements for the supervised visits to be put in place by appropriate written notice provided by the father to the mother and confirmed by the mother. They will provide for agreement with default provision in respect of the identity of an independent private provider of supervision. They will also provide for the mother to provide photographs and reports to the father as to the girls’ educational, sporting and cultural progress and development, as well as reports regarding their health, on a regular basis. The orders will leave in place the Airport Watch PACE alert order and restraint on the girls being taken from the country. Finally, the Court’s orders will provide for the girls to not be encouraged or permitted to continue to call their grandfather “daddy” or “dad” or “father” but rather a word in English or Arabic that connotes his relationship to them as their maternal grandfather. I consider that to be in their best interests.
I make the orders set out at the commencement of these written reasons for judgment.
I certify that the preceding one hundred and fifty one (151) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 26 February 2013.
Associate:
Date: 26 February 2013
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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