Ghani & Nassif (No 2)
[2024] FedCFamC2F 1135
•27 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ghani & Nassif (No 2) [2024] FedCFamC2F 1135
File number(s): PAC 5600 of 2022 Judgment of: JUDGE STREET Date of judgment: 27 August 2024 Catchwords: FAMILY LAW – PARENTING - family violence – pornography - real and significant risk of emotional and psychological harm - best interests of the children – no time Legislation: Family Law Act 1975 (Cth)
Convention on the Rights of the Children
Division: Division 2 Family Law Number of paragraphs: 135 Date of hearing: 8 August 2024, 9 August 2024 Place: Sydney Counsel for the Applicant: Mr SK Hartwell Solicitor for the Applicant: Scb Legal Pty Ltd Counsel for the Respondent: Mr J Farah Solicitor for the Respondent: Hazim & Co Lawyers Pty Ltd Counsel for the Independent Children's Lawyer: Mr S Scarlett OAM RFD Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
PAC 5600 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GHANI
Applicant
AND: MS NASSIF
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
9 AUGUST 2024
THE COURT ORDERS THAT:
1.That all previous parenting Orders be discharged
2.That the child W born in 2007 live with and spend time with each parent in accordance with his wishes.
3.That the children X born in 2012 and Y born in 2014 live with the Respondent Mother.
4.That the Mother shall have sole parenting responsibility, including sole decision making for the major long-term issues, of the children X and Y (hereinafter referred to as “the children”).
5.That the children X and Y spend no time with the Applicant Father.
6.Pursuant to Section 68B of the Family Law Act 1975 (Cth) the Father is restrained from entering the Mother’s home.
7.Pursuant to s 68B Family Law Act 1975 (Cth) the father is restrained from removing the children or either of them from their school or from the mother’s care.
8.The mother, MS NASSIF has sole parental responsibility in relation to signing all necessary documentation, organising and obtaining an Australian Passport for the children W born in 2007, X born in 2012 and Y born in 2014 without first obtaining the written consent of the Father.
9.Pursuant to section 11(1) and (2) of the Australian Passports Act 2005 (Cth), these orders provide authority to the Minister for Foreign Affairs or a delegate of the Minister to issue an Australian Passport for the children without first obtaining the consent of the father.
10.The Australian Passport issued to the children shall be provided to the mother to hold on behalf of the children.
11.That in accordance with section 65Y(2) of the Family Law Act 1975 (Cth) the children W born in 2007, X born in 2012 and Y born in 2014 be permitted to travel outside the Commonwealth of Australia with the Mother.
12.That the names of the children W born in 2007, X born in 2012 and Y born in 2014 be forthwith removed from the Family Law Watch List maintained by the Australian Federal Police.
13.Pursuant to s 68B of the Family Law Act 1975 (Cth) the applicant is restrained from taking any further steps to add W born in 2007, X born in 2012 and Y born in 2014 to the Airport Watch List hereafter.
THE COURT DECLARES THAT:
14.The ADVO proceedings commenced by the father Mr Ghani in the local court case number … are vexatious and an abuse of process given that the father Mr Ghani admitted in evidence on oath in proceedings number PAC5600/2022 to watching the hard core pornographic material on his computer from his google account that appeared on the mobile phone he gave his daughter (DOB: in 2012) and accordingly the statement made by the father Mr Ghani in the email dated late 2023 for the purpose of making the application for the apprehended personal violence order was knowingly false or misleading and was made for the purpose of trying to falsely denigrate his wife Ms Nassif in the eyes of his children.
THE COURT ORDERS THAT:
15.Pursuant to s 68B of the Family Law Act 1975 (Cth) the father Mr Ghani is retrained from taking any further step in the ADVO proceeding case number … other than to file a copy of these orders and declaration in that Court.
16.Pursuant to s 68B of the Family Law Act 1975 (Cth) the father Mr Ghani is restrained from making any further application for an apprehended personal violence order or an apprehended domestic violence against the mother Ms Nassif unless independently made by a police officer under s 48(2)(b) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
17.Pursuant to s 68B of the Family Law Act 1975 (Cth) the interim ADVO order dated mid-2024 is quashed.
Notation
In compliance with Division 11 of part 7 the breadth of the Courts powers under s 68B of the Family Law Act 1975 (Cth) permit the Court to make such order as it considers appropriate, and the quashing of the existing interim ADVO is for the purpose of promoting the best interest of the children, and the quashing of the interim order means it has no operation or effect.18.The Court reserves its written reasons for these final parenting orders.
THE COURT NOTES THAT:
A.The Court requests that B School permit the attendance of both the daughters of the respondent mother X born in 2012 and Y born in 2014 in all circumstances.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
INTRODUCTION
These are parenting proceedings that were commenced by the applicant father (“the father”) on 12 October 2022 against the respondent mother (“the mother”) seeking parenting orders in relation to three children, W born in 2007, X born in 2014 and Y born in 2014 (“the children”).
The originating application filed by the father sought equal shared parental responsibility for the children, and that the eldest child, W, spend time with each parent in accordance with his wishes, and that the two younger children, X and Y (“the daughters”), live with the father and spend time with the mother. The father filed an amended application on 9 August 2023, seeking that the father have sole parental responsibility for all major long-term issues and that the children live with the father.
On 11 March 2024, the mother filed a further amended response, in relation to the parenting application, that the mother have sole parental responsibility for the major long-term issues, that the children live with the mother and that the children spend no time with the father. The the daughters have not spent time with the father since September 2023.
The parties were married in Country C in 2007. The parties separated under one roof in October 2021. The father prevented the children from visiting their grandparents in Country D, in mid‑2022. In mid-2023, X found pornography on the smartphone given to her by her father. In late 2023, the father required X to make a statement purporting to absolve him of guilt, regarding the placement of the pornography on the phone, and blaming his daughter. In September 2023, the mother ceased further contact between the father and the children. There was no issue at the time of hearing, that the eldest child, W, should live with and spend time with each parent in accordance with his wishes. At the time of hearing, it is apparent that the eldest son has been living with his mother and two younger sisters.
At the commencement of the hearing, counsel for the father indicated that he and his instructing solicitor were taking a strict view that they were obtained only for the purpose of the exercise of cross-examination in purported accordance with s 102NA of the Family Law Act 1975 (Cth) (“the Act”), and that the proceedings would otherwise be conducted by the father. The Court accordingly explained to the father the nature of the proceedings and the process that would be followed, and the applicant confirmed he understood the explanation of the Court.
In the course of the father's evidence, the Court explained its concern as to the apparent lack of insight by the father in relation to his conduct and concern as to his continued denigration of the mother and his determination to pursue local court proceedings commenced by him against the mother, in which he obtained interim ADVO's, purportedly on the basis that the mother had downloaded the pornography on his mobile phone so as to impact on the potential parenting orders in these proceedings.
The father continued, in the course of his evidence and in oral submissions, to denigrate the mother, demonstrate an inability to comply with Court orders, and until closing submissions in-reply, maintained a determination to pursue the local court proceedings against the mother relating to the mobile telephone and the downloading of the pornography.
The chronology is as follows:
CHRONOLOGY
Date Event 1968 Applicant Father born in Country E, currently fifty-four (54) years of age 1985 Respondent Mother born in Country D, currently thirty-seven (37) years of age. 1998 Mr F is born (child from Father’s previous relationship), currently aged twenty-six (26) 2000 Mr G is born (child from Father’s previous relationship), currently aged twenty-four (24). 2007 Parties married and commenced cohabitation in Country C. 2007 Parties arrived in Australia. 2007 W born, currently fifteen (15) years. 2010 Parties had an argument in the car and the Father kicked the mother out of the car with W. Mother walked to Suburb H police station and made a report against Mr Ghani. The Mother went and stayed over a friend’s home for a temporary period, then stayed in temporary accommodation with W for about three (3) months before returning home. 2010 Father commences work as a public servant. 2012 Parties purchase J Street, Suburb K, NSW. Father refuses to put the property in both parties names and registers the title solely in his name.
Purchase price around $385,000.00;
Mortgage of unknown amount put in both parties’ names2012 X born, currently 11 years of age. 2014 Y born, currently 8 years of age. 2015 Parties had an issue in relation to the Father’s pornography addiction and sexual requests and separated under one roof for about a few months. Parties rekindled for the sake of the children. 2017 Parties jointly purchase L Street, Suburb M.
Purchase price just under $550,000.00;
Mortgage of unknown amount put in both parties’ names2019 Father’s pornography addiction worsens.
Mother begins working as a carer.Late 2021 Father tells Mother that he has lost a USB containing videos of their sexual relations. October 2021 Parties separated on a final basis under one roof. Mid-2022 Father put the children on the Watch List and did not inform the mother. Mid-2022 Incident at Airport where children were not able to travel after they were refused exit at immigration. Mother and children traumatised by the experience and did not attend school Mid-2022 Mother returns to work. Mid-2022 Incident occurred at matrimonial home where father slaps mother. Mid-2022 Mother files caveats on both matrimonial properties. September 2022 Father retained W in his care and has prevented him from spending time with the mother. Late 2022 Final ADVO made listing the Father as the Defendant and the Mother as the PINOP. Late 2022 Parties agree to sell Suburb M property with proceeds to be held in trust. October 2022 Suburb M property settles however the proceeds are automatically applied to mortgage on the Suburb K property rather then placed into Father’s solicitors trust account. 12 October 2022 Proceedings filed by the father in the FCFCOA. Late 2022 Father is convicted of breach of ADVO and sentenced to a good behaviour bond for a period of one year. 21 December 2022 The Applicant mother filed her Response to Initiating Application. 11 January 2023 Ms N conducts interviews for Private Child Impact Assessment. 30 January 2023 Ms N releases Private Child Impact Assessment 02 February 2023 Interim orders are made by consent for the Father to spend supervised time with the children, supervised by the Father’s brother Mr O. Early 2023 Father refuses to release money held with Real Estate agent to the Mother. Mother is promised through Mr O (Father’s brother) that if she signs the direction to release the money that he will pay her what is owed to her. Father subsequently takes the $2,500.00 himself. 08 May 2023 Mother’s solicitor is served with lapsing notice on Suburb K property. Mid-2023 Mother withdraws $7,400.01 from her superannuation in order to repair her motor vehicle. 30 June 2023 Interim orders made by consent for the Father to commence unsupervised time with the children X and Y each Sunday. Father is also to provide non-smart phones to the children for the purposes of communication. 19 July 2023 Family Report Ordered by a Judicial Registrar Mid-2023 X is provided with a smart phone by the Father. She subsequently finds pornography and other inappropriate materials on the phone.
X informs her Mother and later, her counsellor.Mid-2023 Police attend the Mother’s residence to take a statement regarding the pornography, findings of a ‘private investigator’ on the phone as well as search history of trying to locate replica guns and substances to cause someone to become unconscious. Late 2023 X and Y attend the Father’s home. The Father then calls the Police to attend the home and forces X to make a statement to them in order to absolve him of guilt regarding the placement of pornography on the phone. 04 September 2023 Mother ceases contact between the Father and the children. Late 2023 Father charged for breach of ADVO.
Father files a personal AVO against the Mother for the protection of W, X and himself.12 September 2023 Mother’s solicitor informs her that counsellor from P Centre informed the ICL that she had concerns for the children and made reports to DCJ. 15 & 16 January 2024 Family Report interviews are conducted. 12 February 2024 Family Report is released. 13 March 2024 Section 102NA order made by Judge Dunkley (order 18).
Judge Dunkley lists the matter for final hearing before Judge StreetEarly 2024 W calls Mother and advises her that he was kicked out of the Father’s home and asks her to collect him. Early 2024 Mother attends W’s school to collect him and is met by the Father. Father subsequently contacts Police and reports a breach of the person AVO he has in place.
Mother is arrested and subsequently released without charge30 April 2024 Father files contravention application alleging that the Mother is in breach of the interim orders since 04 September 2023. Mid-2024 Father’s breach of ADVO and application for personal AVO are listed for hearing. Father is found guilty of a breach of ADVO and sentenced to a Community Corrections Order (CCO). Father appeals this decision.
Application for personal AVO is adjourned to late 2024.24 May 2024 A Senior Judicial Registrar makes a further s 102NA June 2024 Parties granted divorce 19 July 2024 Applicant Father obtains legal representation (SCB Legal) 6 August 2024 Applicant Father files an Application in a Proceeding seeking an adjournment EVIDENCE
The following affidavits were read, with annexures treated as being in evidence:
(1)Affidavit of Mr Ghani dated 11 October 2022;
(2)Affidavit of Mr Ghani dated 30 January 2023;
(3)Affidavit of Mr Ghani dated 10 August 2023;
(4)Affidavit of Mr Ghani dated 24 August 2023;
(5)Affidavit of Mr Ghani dated 11 September 2023;
(6)Affidavit of Mr Ghani dated 15 April 2024;
(7)Affidavit of Ms Nassif dated 22 July 2024;
(8)Affidavit of Mr Ghani dated 7 August 2024; and
(9)Affidavit of Mr Ghani dated 6 August 2024.
EXHIBITS
The following exhibits were tendered into evidence in the proceedings:
(1)Exhibit A: Family Report dated 12 February 2024;
(2)Exhibit B: Child Impact Report dated 30 January 2023;
(3)Exhibit C: Respondent Mother’s Tender Bundle dated 2 August 2024; and
(4)Exhibit D: Interim ADVO Order dated mid-2024.
APPLICANT FATHER'S EVIDENCE
The father's affidavit, dated 11 October 2022, identified that he is currently employed as a public servant.
The father identified that he had two sons Mr F, born in 1998 and Mr G born in 2000 from a previous relationship, and that the mother was a very good mother to Mr F and Mr G, who had no contact with their birth mother from the time the father and the mother were married in 2007.
The father identified going on three holidays to Country D during the marriage and contended that there was an agreement that the mother would not travel with the daughters whilst they are young unless the father accompanied her.
The father identified the relationship becoming strained at the start of 2022 and referred to a family vacation to Country D being raised in early 2022. After signing the applications for the passports, the father alleged he had a conversation with the mother that he was not going and could stay. The father alleges, in mid-2022, he told the mother that the daughters are not going with her. The father alleged that the wife called him names when the children were present.
The father identified driving to the airport and placing the children on a watchlist in mid-2022. The father identified an encounter at the airport, discovering that the children were trying to leave and telling the children to have a great time, and that he then departed the airport and returned home. After returning home, the father received a call from his third son, W, telling him they were not allowed to board. The father picked up the mother and children and drove them home. The father alleges he tried to arrange a second trip and discovered that money from bank accounts had been depleted and had been taken without his knowledge. The father alleges that he suffered a medical episode and attended hospital.
The father alleges he returned from hospital in mid-2022 and had an argument with the mother, which was very heated, and he told her she was a disobedient wife. The father identified that the mother alleges he slapped her during the argument, which he denied, the police were contacted, and the father attached a copy of his son, Mr G's, statement to the police, and that he was then made the subject of an apprehended domestic violence order (“ADVO”), which was made final in late 2022. The statement by Mr G identified that he had not been present for the argument, but it is apparent that there was yelling, and he was concerned there could be some sort of physical altercation.
The final ADVO restrained the father from assaulting or threatening the mother, stalking, harassing, or intimidating the mother, intentionally or recklessly destroying or damaging any property, or harm any animal that belongs to, or is in the possession of, the mother. The final order also provided that the father must not approach the mother, or contact her in or an any way, unless that contact is through a lawyer, or an accredited Court-approved counselling, mediation, or conciliation, or as ordered by this or another Court about contact with children, or as agreed in writing between the parents, about contact with the children. The order is identified as one to protect the mother, with a duration of two years from late 2022.
The father identified that the mother left the home with the children in mid-2022, and that he did not know where she was staying. The father identified he had not been allowed to spend time with his children, and that he put proposals for spending time with the children, through his lawyers. The father identified that, initially, he had phone contact with the children about once a week for five minutes. The father alleges the children asked him, "Why did you hit mum?". The father referred to W returning to the family home in September 2022.
On 30 September 2022, the parties attended a mediation.
On 11 September 2022, the father identified that his son, Mr F, said that he had the mother on the phone, and that she would listen to what he had to say. The father then spoke to the mother about making peace, especially for the kids saying:
“I realise this was a breach of my ADVO conditions, and that I should not have done this.”
The father said that the wife did not say anything on the call.
In late 2022, the father overheard a comment by the mother to W and was very upset, and the father said to W:
“She is a disobedient woman. She gets what she deserves.”
The mother identified that she heard the father speaking to W and said:
The mother – “You are not supposed to talk to me at all.”
The father - “You were talking to me.”
The father says the mother was recording the call and made a complaint to the police. The father said he knew he should not have responded, and that this was a breach of his ADVO. The father said things had been said about him, and he reacted poorly. The father was charged with contravening an ADVO in late 2022 and intended to plead guilty to the charge in late 2022. The father identified he disputed the facts identified by the police.
The father expressed concern about not spending time with the children and alleged that his daughter, Y, has behavioural issues, and has been recommended a mental health plan by her paediatric consultant on 30 August 2022.
The father said that it was not in the best interests of the children not to spend time with him, and that they were not maintaining important friendships.
The father said that he had been driving W to school most days and purchasing a laptop and clothes for him. The father suggested a conversation between them that W said he had to return home to the mother if he wanted his laptop.
The father's affidavit dated 30 January 2023 responded to the mother's affidavit of 21 December 2022, and contended they did not separate on a final basis until July 2022.
The father denied controlling W, and that the daughters had been kept in the mother’s care without any agreement between the parents.
The father referred to an apprehended violence order (“AVO”) being made for his protection, in relation to an earlier marriage.
The father denied that he had been physically, verbally, emotionally or sexually abusive during the marriage, but admitted saying that the mother was a disobedient woman and deserves to be punished but denied slapping the mother. The father denied physically and sexually abusing the mother.
The father referred to a USB with sensitive images.
The father referred to pleading guilty to contravening the ADVO.
The father alleged that the mother was denigrating him in front of the children and that he has a very close and loving relationship with his daughters and was worried about the daughters not spending time with both him and their three brothers.
The father referred to obtaining an ADVO, allegedly to protect his son, W, and his daughter, X. The ADVO alleged the mother intentionally downloaded pornographic material on her daughter's mobile.
On 30 June 2023, consent orders were made for the children to spend time with the father from 9 am to 6 pm every Sunday, but for the daughters to spend time with the father every Sunday from 9 am to 6 pm, and for W to live with and spend time with each parent in accordance with his wishes.
The father filed an affidavit on 15 April 2024, in support of an alleged contravention application, identifying that he had not seen the children since September 2023. The father made allegations about providing a new phone with SIM cards, and that he forgot to give the new SIM card to his daughter. The father referred to an allegation that he had downloaded the material, which he denied. Relevantly, the father said:
I absolutely deny that I have viewed or downloaded any pornographic material using my daughter's SIM card, her mobile or the [other] mobile.
The father alleges on 3 September 2023, he had a conversation with X, in which she said that the mobile phone was empty when he gave it to her, and he asked her to tell the truth to the police. The father referred to three officers then attending his residence, and one of them speaking to X. The father identified receiving an email on 8 September 2023 identifying that the mother proposed to withhold the children. The father alleges that he formed the view that X had accessed pornography in the presence or care of his mother, and that the mother had lied as to there being pornography on the phone, or the mother has caused pornography to be placed on the phone. The father alleged that he formed the view he did not cause the pornography to be stored on the phone, allegedly, because it was a new phone.
The father also sought for orders that the children live with him.
The father identified in late 2023, filing an application for an AVO against the mother, for the protection of himself, W and X. The father identified an order being made in late 2023, which prevented the mother from approaching or contacting X or W, except under particular conditions. That AVO was listed for a further hearing in mid-2024, and an interim order was made on that date, purporting to restrain the mother from contacting the father, W or X, otherwise than through a lawyer, or to attend a counselling or mediation, or as ordered by another Court, or as agreed in writing.
The father gave evidence that he had last watched pornography a few days ago, that he would have grave concern for a father accessing pornography to have access to children the age of his daughters, that he had spoken to his son in breach of orders about the property proceedings, that he had spoken to his son about getting the mother to undertake a lie detector test as to whether she had a relationship with another man, that he watched pornography to take pressure off the mother, that he watched the named videos on his computer that were hard core pornography at the time specified on the mobile screen print out and that it was his email account access on the mobile phone to the pornography. In his oral evidence the father continued to disparage the mother, despite warnings of the Court as to the adverse consequences of doing so. The father described the Court Child expert’s report as being quite “feminine” in an obvious and completely inappropriate attempt to disparage the Court Child Expert.
RESPONDENT MOTHER'S EVIDENCE
The mother identified she was born in Country D and became an Australian citizen in 2015.
The mother explained that they lived separately under one roof from 8 October 2021 until 4 July 2022, after being married in 2007.
The respondent identified that her son, W, is currently at Q School, and that her two daughters, X and Y are currently at R School.
The mother expressed concern as to the husband negatively influencing the daughter’s perspective of her, as he has done previously. The mother maintained that throughout the marriage, the father consistently was saying derogative and abusive comments about her, including that:
She is a bad mum and does not care about you.
The mother said she was concerned that the husband would speak in the same manner to her daughters and W, to control the children.
The mother said that in late 2022, the father told the daughters, on the phone, that he would get full custody of them, and that disturbed both daughters. In mid-2022, in a conversation with Y, the father became angry, saying:
I do not want to talk to you again. I do not want you in my life.
The father was yelling and said: But if you are going to take your mum's side, go with her. I do not want you in my life.
The mother said that her daughters were shocked at the father’s statements. The father maintained:
She lied. She lied. Her life is a lie.
The mother said she heard the father continue to speak in a derogatory manner about her:
She is a bad woman to me.
… Stay with your mum.
There is an audio recording of that conversation.
The mother also expressed concern as to the father's view on domestic violence, and that his views would have an impact, both on her daughters and her son. The mother referred to the father retaining her son in his care and that W did not respond when she attempted to contact him and that the father is controlling her son.
The mother referred to a conversation in late 2022 in which the father, in front of W, said:
The father – “For disobedient women, yes, that is what she deserves.
The mother - “She deserves a slap?”
The father repeated - “For disobedient women, that is what she deserves.”
[W] repeated- “yes, a slap is ok for disobeying.”.
The mother raised that the father was not supposed to be talking with her under the AVO. Again, there was an audio recording of the conversation.
The mother referred to receiving text messages from her son, W, suggesting that his father would go to jail because of the mother, and the mother had ruined their house, and the father would lose his job.
The mother referred to her concerns about returning to work, in relation to her daughters and that the father had been in a domestic violence incident with his past wife.
The mother indicated she was fearful that the father would hurt her, and that he would murder her, and that she has held those fears since separation. The mother identified the father has continued to harass her and made false allegations about her seeing another male. The mother made reference to controlling behaviour by the father and that the father suggested to W that his mother was seeing another man.
The mother expressed deep concerns in relation to the safety of the children in the father's care.
The mother identified that throughout the marriage, the father was physically, verbally, emotionally, and sexually abusive. The mother identified an incident in mid-2022 when the father slapped her. Again, there is a recording of that conversation.
The mother expressed concerns as to the father's health, and the children being exposed to the father's pornography use.
The mother identified, that after she married the father and became pregnant in 2007, she discovered that the father is married to multiple women and found documents revealing that the father had married multiple women in Country D, along with another woman in Country C. It was not until after the father had married the mother, that she discovered he had been married to several women and believed that the father had lied to her about that. The mother reluctantly decided to remain in the marriage.
The mother completed a course and did not work until about 2019 because she was taking care of the children. The mother was then employed as a carer on a casual basis, and then transferred to full-time employment. The mother indicated she is not currently working and is taking care of the daughters, but that she is still an employee at the S Centre and is considering returning to work.
The mother was told, when they arrived in Australia, that she was to take care of Mr F and Mr G, and she attended to their needs. The mother says she loves them as her own children. The father did not let the two boys spend time with their birth mother.
The mother referred to her son, W, being a premature birth, and her son having to spend a few months in the intensive care unit and that she initially struggled to understand hospital staff, because she had poor English skills.
The mother alleged the father sexually assaulted her on multiple occasions and threatened to remove her son, and the mother reluctantly followed through with his sexual demands. The mother summarised the history of domestic violence and abuse at the hands of the father, and alleged constant sexual abuse throughout the marriage, and activities that she was uncomfortable with. The mother alleged that the father would yell at her and fight if she did not fulfil his demands, and that these incidents worsened over the course of the marriage.
The mother said she was verbally abused throughout the marriage, and that she was threatened by the father that her children would be told, if she left, that she left for a boyfriend, and that he would ruin her reputation in front of the children. The mother said she was very scared when the father threatened her, as he appeared to have followed through with these threats with his previous marriage. The mother referred to verbal abuse and an incident of domestic violence in 2010, when she was told to get out of the car and was left on the side of the road with W, and that she stayed in temporary accommodation with W for three months.
The mother referred to being told not to go ahead with reporting the father. The father pressured the mother not to pursue the proceedings and allegedly made a false statement in relation to the nature of the dispute. The father promised never to abuse the mother again if she returned home, and she agreed. The mother identified that after a few weeks of recommencing cohabitation, the father began to sexually abuse her in the marriage, as had previously occurred.
The mother identified having another issue in 2015, whereby they separated under one roof for a few months, and then resumed the relationship for the sake of the children. The mother referred to the use of instruments by the father that caused her physical pain and that the circumstances were not in her control. The mother referred to her son being exposed to the father's online pornography searches. The mother referred to the father doing things to shame her and threatening to leave her in relation to his demands concerning a sexual request in 2019. The mother referred to calling the father's brother when he was too difficult to handle.
The mother referred to an incident in late 2021 when the father lost a USB that contained some videos of him having sex with the mother and sex with other women. The mother said she did not consent to the videos of her, and that the father told her that she needed to find the USB and that she was not allowed to sleep and was told to open a door or that the father would break it. The mother told the father that if he did not leave her alone, she would call the police. The mother said she was terrified of the father and called the police. After speaking to the father, the police told her that he would stay away, and the father told her, "You call the police, and they do nothing". The following day, there was a big argument in relation to the lost USB in which the father said he would stay in the house to care for the children and that they would separate.
In October 2021, the mother says they separated on a final basis under the same roof and lived together but lived apart from October 2021 to 4 July 2022. The mother said they remained in separate beds and in separate bedrooms and did not have any issues until she began planning to go to Country D in about mid-2022. The mother identified the father had only allowed her to go overseas three times throughout the marriage and made reference to the father holding a fear that she would leave him on a permanent basis. The mother referred to her plans to go to Country D that began in mid-2022, in which she said she was planning to take the children to visit her family and asked the father to sign the application and that he did so without raising any issues. The mother alleges that the father then started asserting that she was going to Country D to see another man and then said those words to X, which caused her to be very upset and worried about going to Country D.
The mother said similar things were said by the father to Y and W, which W repeated, and their excitement to their family in Country D began to change. The mother said that it was never suggested that the father would come with them. In mid-2022, the father put the children on the watchlist, and in mid-2022, the father said to the mother:
You're not allowed to go to [Country D]. You can go if [Mr F] goes
The mother said that she was going, and it was too late to get Mr F a ticket that costs $9000.00. The father took the luggage to the car and told the mother she is an animal, and an argument with swearing took place in the front of the house. The father started screaming. The mother called the police because she was afraid of the father, who was holding on to the luggage. The father then drove off with the luggage. The mother said the police arrived, and the mother decided to go to Country D and packed some clothes and went to the airport. The mother had identified she had forgotten her passport, and the police arranged for someone to sit with W, and when she returned, she noticed the father was talking to the police and still had their luggage. The mother collected the luggage. The father then made an assertion to W that the mother was going to Country D to marry another man and have a child and continued to make very hurtful comments about W, who started crying. The father gave the luggage to the airline staff and said, “I'll miss you”.
As the children and the mother were going through the airport, they had to hand over their passports and were told that the children were on the watchlist. The children were very traumatised by being prevented from leaving and were told the father had put them on the watchlist. The mother and the children did not go to Country D, and the children were very upset by the incident. The children refused to go to school and were very upset. The daughters school called the police, and they spoke to the children, and the daughters returned to school, and W moved to B School as he did not consent to attending his old school.
The mother referred to contact from the domestic violence line in mid-2022 and said that she had been told by the father he would let the children go to Country D. The mother said the children were very traumatised by this incident and in particular, the father farewelling them when he knew they would not be allowed to travel. The mother said that the daughters began wetting themselves after this incident and were very upset, and the mother was deeply concerned for their well-being.
In mid-2022, the mother made a call to resume work and went back to work the following day. That day, in the morning, the mother received a call from the father that said, "You were cheating on me with another man". Then, the father started calling her, alleging that she was with someone else. The mother referred to the father arriving home and entering her room, screaming, alleging that she had been with another man, then taking her phone and scrolling through it. The father yelled about taking money from a bank, and the mother said they had mutually agreed to $5000 for the holiday to Country D, then the father repeated the assertion that she had been to see another man in front of her brother. The mother identified the seriousness of such an accusation and said to the father, "You are an animal", then the father slapped her across the face. The mother said that Mr G came in to stop Mr Ghani from hitting her again and that the uncle was also present in the room when she was slapped by the father. The mother called the police.
Following a call from the domestic violence line, the mother left, without informing the father, with the children to a hotel and then relocated to a unit. In late 2022, a final ADVO order was put in place for the mother's protection. Since that ADVO has been put in place, the father has repeatedly called the mother to harass her and the children and told the children, "Your mum deserves to be in jail". The mother explained she had not reported those breaches, being worried about the father's well-being and that he was afraid of going to jail. The mother referred to dropping W off to the father’s in late 2022 and W then staying with his father and blaming her for what had happened. The mother said W had told her that a man has a right to hit his wife if she does not obey and that she must obey the father.
The mother referred to the father being charged with breach of the AVO and being convicted and being on a good behaviour bond that expired in late 2023. The mother said the father has continued his violent and controlling behaviours towards her in breach of the AVO and that she has not reported further breaches for fear he will hurt or even kill her. The mother also referred to W saying that he did not want his mother to report the father because he did not want him going to jail. The mother said that on more than one occasion, the father threatened to kill her and take her children away from her. The father also accused the mother of taking his money and having a relationship with another man. The mother is of the view that the father is out to hurt her in every way he can because she left him.
The mother referred to the father being charged in late 2023 with a breach of the AVO and referred to the father, in late 2023, filing an application for an AVO personally against the mother for his, W's and X's protection alleging that she intentionally downloaded pornographic material on his phone. The mother identified that the father left the pornographic material on the phone prior to giving it to X. In mid-2024, the father was found guilty of breach of the AVO and given a community corrections order and was given further time to put on his evidence in relation to his personal AVO case against the mother, which is listed for hearing in late 2024.
The father has appealed the guilty sentence in court, which is now listed for a readiness hearing in mid-2024. The mother responded to allegations in the father's affidavit but maintained her version of the circumstances in which the father prevented the travel to Country D. The mother maintained that she was fearful for her safety. The mother indicated that she does not discuss the domestic violence inflicted on her by the father with the children and explained the replacement of W's computer.
The mother referred to interim consent orders made on 2 February 2023 in relation to a convention application filed by the father and referred to there being an order for a restraint not to expose the children to pornographic material. The mother said she promoted the relationship between the children and the father but could not control his behaviour while the children were with him. The mother said the children are reluctant to see the father because he speaks negatively about her to them. The mother referred to the counselling that the children had commenced and referred to interim orders made on 30 June 2023 to commence unsupervised time and an order for the father to provide a mobile phone.
In mid-2023, X was provided with a smartphone from her father. The phone had a Google search history of pornography on it, with photos of naked people on it, and X told the mother what she saw. The mother said the smartphone was given to the daughter without her consent and in breach of the orders made on 30 June 2023, which identified the father would provide standard mobiles, not smartphones. X had found the search history and disturbing content and informed her counsellor, who informed DCJ and the police. In mid-2023, the police came to the mother's residence to take a statement regarding the pornography. The mother continued to send the children to spend time with the father, notwithstanding what X had seen and that she was distressed.
In late 2023, the children were spending time with the father, and the children called the mother without the father knowing and were scared and frightened, saying that the father had called the police on them, and they were hysterical. The police officers from Suburb T Police came to the property and questioned X about the pornography and the images she saw on the phone. X informed the mother that she was questioned about the inappropriate content on the phone, and because the father was going crazy about the allegation, she lied to the police as she did not want the father to get in trouble. The mother identified that her daughter had later been subjected to significant trauma, following the father contacting the police on her, than what she was subjected to on the phone and that her sister, Y, had also been traumatised by seeing the police attending. The mother identified that these incidents had given her serious concerns as to the well-being of her children, and that the children are scared of police and no longer want to see them. The mother identified significant changes in her daughter’s behaviours after the police attended identifying that it affected their sleep patterns, motivation, and that they have shared pain in the tummy, which worsens every Sunday morning when they are supposed to see their father.
The mother referred to her daughter, Y, having an accident at school, urinating in her pants, and that both daughters had voiced their concerns that they do not want to communicate with their father or see him on Sundays, and that this had also been reported to the family report writer. The mother said that this event over the weekend created so much fear for Y and had a visible impact on the children's physical and emotional wellbeing, as X later started grinding her teeth in the night due to stress caused by her father, and Y was wetting her bed from time to time.
In late 2023, the mother instructed her lawyers to write to the father what had happened, and that the children do not wish to spend time with him, and that she was advised by her counsellor not to return the children due to significant concerns for their mental health.
The mother referred to trying to stop the father's pornography addiction, and that he was in denial, and that she had often deleted pornographic material he had accessed from his phones and computers, so that the children would not see it. The mother referred to the father withdrawing his consent for the children to continue attending counselling at P Centre, which had been helping them. The children identified they did not wish to spend time with the father, and the mother feared for the safety of the children when in the father's care. The mother identified that the father hasn't seen the children for 10 months, and that it was the father who gave X the smartphone with the pornographic content on it, and that he had neglected to protect his daughter from that pornographic material, and instead of owning his own behaviour and apologising, he has blamed the mother for downloading the material onto the phone.
COURT CHILD EXPERT EVIDENCE
In the family report, the father maintained that the daughters would never go back if they stayed with him. The Court Child Expert (“the expert”) identified the mother's account of concerning sexually coercive and intimidating behaviour as well as verbal and emotionally abusive behaviour by the father. The mother reported to the expert that the father had threatened to kill her in mid-2022. The expert recorded that the mother identified the father believes that she is his property and therefore, he can do what he likes with her. The expert recorded breaches of the AVO which were not reported because the mother is fearful of the father's reaction.
The expert recorded the mother's assertion the father is addicted to pornography. The father admitted to trying to find out the mother's address, allegedly to find out if she was safe and well, after she had left the family home. The expert recorded the events in relation to X seeing the pornography on the phone she was given by her father and X reporting it to the U Program counsellor. It is apparent from the report that the daughter told the police false information at his demand. The father maintained that he had given his daughter a new phone that had no pornography on it and that he was of the view that the mother had loaded the pornography on the phone in an attempt to discredit him and stop the daughters from staying overnight with him.
The father took out an ADVO to protect himself, X and W from the mother, allegedly telling the police that the mother put the pornography on the phone. The father referred to taking the police to see his daughter so that he could clear his name. The mother expressed concern as to the capacity of the father to care for the children and that her primary concern is that the father would denigrate her to the children. The mother referred to her son W repeating that she deserved to be slapped being information from the father, and that the daughters had come home asking what she had done to cause the relationship breakdown.
The father reported that he is currently taking antidepressant medication, which he obtains from his GP, and that he has been referred to a psychologist, and that he ascribes his mental state to concern over what is happening in world affairs. The expert identified that spending no time with the father would likely have repercussions in the children’s adult life. The father asserted that his daughter X was being brainwashed by the mother and that asking why they had not been allowed to go to Country D were not his daughter's words. The expert recorded that X does not want to see her father at the moment, and her reason for that was the pressure he put on her to speak to the police when she did not want to and what he says about her mother.
X reports her father saying that the mother is mentally unstable and that she is a bitch who belongs on a farm. X confirmed that she saw naked people on the father’s phone, and she was confused and shocked and did not want to see that again. Y complained about their aborted trip to Country D and that she wants to live with her mother and said that her father says bad stuff about her mother. Y reported that the father tells them that the mother is mentally not normal and that she started all of this, and that he becomes really angry if it is suggested he started the conflict.
The expert reported that the daughters were a little bit uneasy about seeing the father but went over to him and cuddled him, and that they had tried to ring him, but he had not answered. The expert expressed the view that the children have a relationship with each of the parents and expressed concern about the children spending little time with the father. The expert referred to it being highly undesirable to express adverse opinions with the children, in that it creates a loyalty trap, and the children cannot enjoy time with either parent, as they struggle to integrate their regarded opinion of a parent with the knowledge of an opinion that is not shared by the other parent. The expert identified the prospect of losing a relationship with one parent when they are forced to live in an inauthentic and duplicitous manner. The expert described the relationship between the parents as being marked by hostility and fear by the mother.
The expert identified concern in relation to the sexual abuse and controlling behaviour. The expert referred to the mother having no relatives as support, and that it makes her vulnerable to control and exploitation and referred to the father subjugating the mother to his will, and that the use of a control in a relationship will lead to adverse outcomes for the children, as the children can model that behaviour.
The expert raised the issue of parenting capacity and the effects of the conflict on the long-term wellbeing and mental health of the children being well documented. The expert identified that the father, with access to appropriate treatment, may increase his parenting capacity, but at the moment there are concerns as to his ability to meet the needs of the children. The expert identified this is particularly relevant in a case of the daughters, who will require a greater degree of parental intervention than that which would be necessary for older children.
The expert identified that a pornography addiction by the father can be damaging for parenting in that the parent is less available and attuned to the children if they are more focused on the object of their addiction. The expert also identified the risk the children may inadvertently witness some of the pornography and that the father should seek treatment from a suitably qualified psychologist. The expert identified the father as seeing a wife as someone who attends to his needs and his family.
At the time of the family report, W was living with his father but identified a common opinion that he should be free to see each parent in accordance with his wishes. The expert records that both daughters were adamant they wished to live with their mother and that she has been their primary carer.
The expert identified that the mother had been able to meet the parenting needs of the children and that the children are reluctant to spend time with the father, which may be more related to his criticism of the mother than any fear or discomfort they may experience with the father as a parent. The expert identified that the children hold some affection for the father. The expert identified that the daughters have needs where they will require substantial ongoing care and that the father does not appear to be in a position at the moment to provide this. The expert identified that the daughters would not be well served living with the father. The expert identified that if there is substance to the allegations of family violence, the daughters are going to be at risk of experiencing parental deficits which characterise a perpetrator of family violence.
The expert identified the possibility of the children spending a short amount of time with the father if his mental health does not preclude him from spending time with the daughters. The expert also recommended that the mother have sole parental responsibility for the children and referred to redressing a possible power imbalance.
The expert was asked to make a number of assumptions in relation to the conduct of the father as to the continued disparaging of the mother despite warnings by the Court, the admitted use of the hard core pornography found on the daughters mobile, pressuring his daughter to make a false statement as to the downloading the pornography to the police, describing the family report as being feminine, the recent breach of the order not to discuss the property proceedings with his son, on those assumptions, her recommendation would be no time. The expert identified the children were at an age where they had had a relationship with their father and, when they get to an age where they can express their own wishes, can decide if they wish to re-establish a relationship. The expert expressed a view that the risk of emotional and psychological harm to the children based on the assumptions identified was a greater risk than the emotional harm from spending no time with the father.
SUBMISSIONS FOR THE APPLICANT FATHER
The father in his submissions maintained a derogatory view of the mother, including that she had caused the pornography to be downloaded on the mobile phone he gave his daughter. When the issue was raised by the Court, the father responded that the Court is not an IT expert.
The father also maintained that the children should not be allowed to travel overseas to Country D and should remain on the airport watchlist. The father identified that his concern was not that the mother would not return but rather that they would not be safe if not in the company of a man.
In the closing submissions in reply, the father identified that he would drop the proceedings concerning the mobile phone, in circumstances where the Court had identified it proposed to make a declaration that those proceedings were vexatious and an abuse of process and proposed to make injunctive restraints under s 68B of the Act in respect of the pursuit of those proceedings or any further ADVO unless made by a police officer and an order under s68B of the Act quashing the interim ADVO obtained against the mother.
The father asserted that he would comply with the Court's orders not to denigrate the mother.
SUBMISSIONS FOR THE RESPONDENT MOTHER
The mother submitted that this was an appropriate case where there should be a no time order and referred to the continuing gaslighting and derogatory remarks made by the father in relation to the mother, and the failure by the father to comply with orders made by this Court as recently as the day of the hearing, discussing the case with his son W in respect of the property proceedings notwithstanding an injunctive restraint. The history of the ADVO by the mother and the mother's family violence throughout the relationship were identified as significant and were relied upon. The mother maintained the assertions of physical and sexual abuse throughout the relationship.
The mother referred to the coercive and controlling behaviour extending well beyond the date of separation and that the father's behaviour of instigating proceedings in the Local Court continues to worsen and poses an unacceptable risk to the children. Reference was made to the distress caused by the father to the children in relation to placing them on the watchlist at a time when he knew they wanted to travel overseas and the significant emotional and physical distress that it caused the children. The mother contended that the father regularly attempts to manipulate and influence the children in relation to their attitudes about the mother.
Reliance was also placed on regular breaches of the ADVO by the father, repeatedly calling and harassing the mother in the presence of the children, which she did not report. The mother referred to the one-year good behaviour bond in respect of the ADVO not deterring the father from his behaviour and his continued attempt to exert control and coercion of the mother and the children. Reference was also made to the conduct of the father in relation to the mobile phone and the taking of the proceedings in the Local Court and pressuring his daughter into making a statement that would support his defence in relation to the material found on the phone he gave her.
The consequence of the father's conduct in pressuring his daughter and the physical impact on her was identified. It was submitted that the father’s behaviour is reflective of ongoing mental health concerns and an extreme lack of child focus. Reference was also made to the extraordinary accusations pursued by the father against the police officer who placed him on the ADVO of having a relationship with the mother. It was also apparent in the course of submissions that the father has made complaints in relation to the ICL, which are entirely without foundation. The mother identified that the father is continuously attempting to sway the children in relation to the current court proceedings and the extraordinary conduct taken in relation to the private interim AVO obtained by the father against the mother.
Reference was also made to the father's pornography addiction, where he admitted accessing pornography approximately three days prior to the commencement of this hearing and the evidence he gave that identified that it was his Google account that was on the mobile phone and that he had watched the hardcore pornography that was visible on the mobile phone at an early hour of the morning on his computer. It is patent from the content of the pornography, which was hardcore, that the father's computer was linked to his mobile phone, and the proposition advanced by the father that it was done by the mother was obviously untrue.
The submissions referred to the conduct of the father engaging police to assist him obtain a retraction of the discovery of the pornography on his mobile phone by his daughter and to permit a statement from his daughter that suggested she had downloaded the pornography which was untrue given that the father admitted that the pornography was viewed by him in the early hours of the morning on his computer. The adverse impact of this conduct upon his own daughter was obvious. Reference was made to the emotional and physical impact it had to the child, and obviously the impact in relation to interaction with the police. The mother maintained that this was a no time case.
SUBMISSIONS BY THE ICL
The ICL provided an initial case outline identifying the potential for some time being spent by the daughters with the father, and that W should spend time with and live with either parent in according to his wishes. The ICL did note that both daughters are adamant that they do not wish to spend time with their father. Following the father's evidence, the ICL reflected further on the position adopted by the ICL and provided short minutes to the Court supporting the position of no time, as identified by the mother. In closing submissions, the ICL identified careful reflection on the evidence that had been given and maintained that this was a case where there should be no time. The ICL also supported orders that permitted the children to travel overseas with their mother, including to Country D. The ICL also supported orders and declarations in relation to the personal ADVO proceedings taken by the father, as identified by the Court.
RELEVANT LAW
The Court has taken into account the new statutory pathway in relation to pt 7 of the Act as identified in Kapoor & Kapoor [2024] FedCFamC2F 605 [6]– [15], and in that regard, the Court has had regard to the principles in ss 46, 60B, 69ZN of the Family Law Act 1975 (Cth), and the objects identified.
The Court has also had regard to the meaning of a "parenting order" in s 64B, as well as the purpose of the order identified in s 65D.
The Court has also taken into account the paramount concern, being the best interests of the child, identified in s 60CA and s 65AA.
The new provisions in section 60CC are as follows:
60CC How a court determines what is in a child’s best interests
Determining child’s best interests:
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
a.consider the matters set out in subsection (2); and
b.if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3)
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
a.what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
i.the child; and
ii.each person who has care of the child (whether or not a person has parental responsibility for the child);
b.any views expressed by the child;
c.the developmental, psychological, emotional and cultural needs of the child;
d.the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
e.the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
f.anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
a.any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
b.any family violence order that applies or has applied to the child or a member of the child’s family.
The Court has also had regard to and taken into account the Convention on the Rights of the Children at New York on 20 November 1989 and, in particular, arts 7, 9, 12, 18 and 19, and the Court has underlined, as emphasis, the relevant parts in those articles.
Article 7
(1) The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.
(2) States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.
Article 9
(1) States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
(2) In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
(3) States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.
(4) Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.
Article 12
(1) States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
(2) For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Article 18
(1) States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
(2) For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.
(3) States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible.
Article 19
(1) States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
(2) Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
FINDINGS AND CONCLUSIONS
The Court has taken into account the principles in s 43 of the Act as well as s68B and s69ZM of the Act. The Court has taken into account the principles in relation to the relevant parenting law as referred to above. The Court has also taken into account the paramount consideration, being the best interests of the children, as identified by s 60CA and s 65AA of the Act, and the content of s60CC of the Act in relation to the matters that the Court must take into account under s 60CC(2) of the Act. The Court is satisfied that an arrangement where the father spends no time with the children would best promote the safety of the two daughters. For the two daughters to spend time with the father exposes them to the real risk of psychological and emotional harm falling within the meaning of family violence by the denigration of the mother by the father.
The risk of that emotional and psychological harm, given the conduct of the father in this case, is extremely high, and the Court is firmly satisfied that there is no ability to make an injunctive restraint that would be effective in preventing the father denigrating the mother other than the extreme position on a no time order.
The Court has taken into account that the no time order means the children will now not have a relationship with the father, and that there will be the potential for some degree of psychological or emotional harm from not being able to advance further their relationship with the father until they are at an age when their own wishes can dictate the outcome.
The Court, however, accepts the expert’s evidence that the risk of such harm is not as great as the risk of the psychological and emotional harm from exposing the children to the father.
The Court also takes into account the dogged pursuit by the father of the local court proceedings against the mother, despite having made admissions in evidence as to the hardcore pornography material, being material he had been watching early in the morning on his computer. It is not necessary to repeat the title of that material beyond identifying that the first one was characterised as a criminal act in relation to a mother and son.
The proposition that the mother had somehow downloaded pornography onto her own child's mobile was an outrageous false allegation for the father to pursue. The Court readily accepts the mother's evidence that no such occurrence took place, and the proposition itself, given the admission by the father as to the identity of content with that which he was watching, was a disgraceful allegation to pursue and can only have been pursued to denigrate the image of the mother in the eyes of his children. The Court finds the mother’s evidence credible and compelling and accepts her evidence where in conflict with that of the father. The father was not a credible witness, was advocating his position, unresponsive and maintained untenable assertions to justify his conduct in pressuring his daughter to make a false statement to the police and in his pursuit of his ADVO proceedings against the mother in relation to the mobile phone pornography that obviously came from his watching the very hard core pornography that appeared on the mobile phone he gave his daughter.
The local court proceedings commenced by the father were patently vexatious and an abuse of process, and the material provided was knowingly false and misleading to obtain the ADVO by the father, and no interim orders should ever have been made. The Court raised whether or not, in relation to those proceedings, in addition to the injunctive restraints under s 68B of the Act and the quashing of the interim order, it should make an appropriate declaration in relation to those proceedings. Given the conduct of the father and the evident purpose of that conduct, the Court was more than satisfied that it was appropriate not only to make the restraints under s 68B of the Act and the quashing of the interim order under s 68B of the Act but to make a declaration identifying the vexatious nature of the proceedings in abuse of process and why it is patent that they were vexatious, which reflected the admission by the father on oath before this Court, that the content of the hardcore pornography was content he had been watching on his computer at the early hours of the morning, in respect of the particular videos he was taken to. In these circumstances, the dogged pursuit of those proceedings by the father, which were also at the heart of an attempt to adjourn the proceedings, reflects the extent of the viciousness of the father in trying to denigrate the mother in the eyes of his children.
The Court does not accept the belated undertaking not to pursue the same, that was proffered by the father, contrary to his sworn evidence, as reflecting genuine insight and understanding as to the inappropriateness of his conduct. Nor does the Court accept that without the restraint and the declarations, the father's conduct would cease in relation to denigrating the mother. The Court is satisfied that the ongoing denigration of the mother in front of the children would cause real and significant emotional and psychological harm, that cannot be prevented other than by a no time order.
The Court also regards the conduct of the father in pressuring his daughter, X to make a false statement to the police in relation to the pornography, as being further family violence by the father.
The Court also regards the father's breach of the order not to discuss the proceedings with his son, W, who raised the property proceedings with his mother, as again another form of family violence in relation to a child.
The Court is satisfied that a no time arrangement is in the best interests of the children, so as to promote the safety of the daughters. The son is at an age where he can do as he wishes.
In relation to s 60CC(2)(b) of the Act, the daughters have expressed views that they do not wish to spend time with the father. Whilst they are at a young age and the Court has approached those views with caution, this is a case where those views should be respected, particularly given the conduct of the father in relation to getting his daughter to make a false statement to the police in relation to the mobile phone.
In relation to s 60CC(2)(c) of the Act, the Court has taken into account the age of the daughters and accepts that they have an existing relationship with the father and that, ordinarily, they would benefit from such a relationship. The Court is, however, firmly of the view that the developmental, psychological, and emotional needs of the daughter’s faces a greater risk of significant harm if exposed to spending time with the father. The Court is firmly of the view that this risk of harm extends to communications by mobile, video or audio means.
In relation to s 60CC(2)(d) of the Act, the Court is satisfied the mother has capacity to properly parent the daughters without input from the father, and to provide for their developmental, psychological, emotional, and cultural needs. The Court is firmly of the view that the father currently lacks parental capacity to properly meet the children's developmental, psychological and emotional needs, due to his obsession with denigrating the mother, and his determination to disparage her. That denigration of the mother, if the children were exposed to the same, would cause greater harm to the children than the loss of a meaningful relationship with the father.
In relation to s60CC(2)(e) of the Act, the children have not expressed a wish to have a relationship with the father, and whist, ordinarily, there would be a benefit, the circumstances of the present case are such where it is apparent that any benefit is outweighed by the emotional and physical harm that would be done to the daughters, if a relationship with the father were permitted to continue. The Court has also taken into account the father's own evidence in relation to his use of pornography, and the admission he made that he would not let a child spend time with a parent who was addicted to pornography. The pornography addiction of the father is a further real and significant risk of significant emotional and psychological harm, if the children were to spend time with the father. The Court does not accept the father's evidence that he is not addicted to pornography. The Court accepts the mother's evidence, both in relation to the conduct and behaviour of the father throughout the marriage, which constitutes family violence, and in relation to his pornography addiction.
In relation to s 60CC(2)(f) of the Act, the Court regards the pornography addiction as another relevant circumstance, as identified above, that would warrant a no time order. The Court accepts the mother's history of family violence as identified in her evidence and has taken into account the ADVO that the mother obtained, and the vexatious ADVO pursued by the father.
The Court has also taken into account and had regard to the Convention on the Rights of the Children at New York on 20 November 1989. The Court is alive to the right of the children to know and be cared for by their parents and is satisfied that such separation is necessary in the present case, in the best interests of the daughters. The Court finds that maintaining a personal relationship with the father would be contrary to the best interests of the daughters.
The Court has taken into account the children's views, which the Court has satisfied should be given weight, which also support there being a no time order.
The Court has also taken into account the need to protect the daughters from mental violence and abuse, which the Court has identified has occurred by the father, which warrants the making of a no time order. The Court is not satisfied that there can be any protective measures, by injunction or otherwise, that would adequately protect the children from the risk of spending time with, or having a relationship with, the father.
The Court notes that the ICL supported the Court making the parenting orders and reserving its written reasons.
The Court took into account the principles in ss 43, 60A, 69ZN, 70 and 95 of the Act and was satisfied that it was in the best interests of the children to pronounce the parenting orders and to reserve the written reasons.
Accordingly, it is for these reasons that the Court makes the above orders.
I certify that the preceding one hundred and thirty-five (135) numbered paragraphs are a true copy of the Settled Reasons for Judgment of Judge Street. Associate:
Dated: 27 August 2024
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