GOUDARZI & BAGHERI
[2018] FamCA 217
•13 April 2018
FAMILY COURT OF AUSTRALIA
| GOUDARZI & BAGHERI | [2018] FamCA 217 |
| FAMILY LAW – CHILDREN – Where the father seeks time with the children – Where there are two children aged 12 and 17 years – Where the father has not spent meaningful time with the children since December 2015 – Where it is agreed that the older child will spend time with the father in accordance with his wishes – Where the father proposes the younger child spend three months in his care isolated from the mother and thereafter that there be an equal time arrangement – Where the mother alleges the father is a risk to the children – Where the Court is satisfied that the mother’s allegations are unfounded – Where the mother alleges that a number of people involved in these proceedings including officers of the court, court experts, barristers and lawyers are corrupt and has shared this view online through a petition – Where the children hold a negative view of their father and do not want to spend time with him – Where the Court is satisfied that the mother has acted to isolate the children from their father – Where the younger child is currently performing well – Where there are risks associated with radically changing the child’s circumstances and of attempting to isolate her from her brother – Where orders are made for the children to live with the mother and spend time with the father in accordance with their wishes. | |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAA | |
| Champness & Hanson (2009) FLC 93-407. | ||
| APPLICANT: | Ms Goudarzi | |
| RESPONDENT: | Mr Bagheri |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Whelan |
| FILE NUMBER: | SYC | 7646 | of | 2008 |
| DATE DELIVERED: | 13 April 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 26, 27, 28 February 2018 and 1, 2 March 2018 |
REPRESENTATION
| APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Richardson SC and Mr O’Reilly |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Stolier |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mark Whelan Lawyer Pty Limited |
Orders
All previous parenting orders for the child D born … 2000 (“D”) are discharged.
The Court Noted that notwithstanding Order 1 pursuant to s 61C of the Family Law Act1975 (Cth) each of the parents has parental responsibility for D.
D shall spend time with and communicate with the father in accordance with his wishes.
By way of variation of the order made on 2 March 2018 the mother shall do all acts necessary to apply for an Australian passport for D and the father shall sign the application within 14 days of it being presented to him and after it is issued, that passport shall be held by D.
All previous orders for the child E born … 2006 (“E”) are discharged.
The parents shall have equal shared parental responsibility in relation to long term decisions for E.
E shall live with the mother.
E shall spend time with and communicate with the father in accordance with her wishes.
E be permitted by the mother to contact the father by telephone or text message at all reasonable times.
The father is at liberty to provide E with cards, letters, photographs and gifts and for this purpose the mother shall nominate a postal address or PO Box to be maintained until E is 18 years of age.
In the event that E expresses a wish to spend time with or communicate with her father then the mother shall assist E to achieve that outcome.
Neither of the parents shall speak negatively about the other parent to or in the presence of either of D or E (“the children”) and shall use their best endeavours to prevent any other person from doing so.
The mother is restrained from:
(a)making derogatory remarks about the father or members of the father’s family to the children or in the presence or hearing of the children or permitting any other person to do so; and
(b)discussing these proceedings with the children or within the hearing of the children or showing the children any document connected with these proceedings or permitting any other person to do so.
The parties be restrained from:
(a)relocating the residence of the children from the Sydney metropolitan area without the prior written consent of the other party; and
(b)removing the children from the Commonwealth of Australia without the prior written consent of the other party or an order of this Court.
The mother shall provide all necessary consents, and these orders evidence her consent, for the father to obtain school reports, school photos and other parent information from E’s school at his own expense.
Each party shall notify the other of any subsequent change to his or her residential address within seven days of any such change.
Each party shall provide to the other party the names, addresses and telephone numbers of all medical professionals who may treat the children and authorise each of them in writing to provide copies of any test results, letters of referrals, reports and letters received from other medical professionals to the other party and authorise them to discuss any aspect of the children’s health with the other party.
Each party shall keep the other party informed via email of any major medical issues involving the children including any details relating to the children’s attendance upon a medical practitioner and any treatment prescribed.
Each party inform the other as soon as reasonably practicable and in any event within 24 hours of any of the following which occurs while the children are in their care:
(a)serious medical problems or illnesses suffered by the children;
(b)medication that has been prescribed for the children that needs to be taken whilst the children are in the care of the other party; and
(c)other significant matters relevant to the welfare of the children.
Save in the case of emergency or urgent situations, the parents must communicate with each other in relation to the children by use of email and/or SMS.
Each party shall notify the other of any subsequent change to their nominated email address and mobile telephone number for such communication as expressed in order 20 within 24 hours of any change to same thereafter.
Each party shall notify the other party of the address/es and telephone number/s of the place/s where the children will be staying during holidays spent away from the other party’s residence not later than 48 hours prior to the commencement of the school holidays or as soon as reasonably practicable.
Within 28 days of the date of these orders the mother shall bring E for a meeting with the Independent Children’s Lawyer (“ICL”) on the date and time nominated by the ICL, the purpose of the meeting being for the ICL to explain these orders and to specifically inform E of a way for her to contact the father in the future.
The ICL shall within 28 days explain to D the details of these orders, the purpose of the meeting being for the ICL to explain these orders and to specifically inform D of a way for him to contact the father in the future.
The ICL is at liberty to provide a copy of these orders to E’s school and school counsellor.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Leave is granted to the parties to apply to restore the proceedings within 28 days, on giving at least seven days’ notice to the Court and each other in relation to the wording of these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Goudarzi & Bagheri has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC7646 of 2008
| Ms Goudarzi |
Applicant
And
| Mr Bagheri |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings about E (“E”) who is 12 years of age and her brother, D (“D”) who is aged 17 years and five months. The dispute between their parents about them has spanned 10 years.
Understandably given his age, there was virtually no controversy in respect of any orders that would relate to D. As to E the issues now before the Court include:
·a dispute as to whether the father would have sole parental responsibility (the father’s application) or the parents would share parental responsibility for her (the mother’s application).
·as to living arrangements, the mother sought that E continue to live with her and that it be E’s choice as to when she lived with each of the parents in the future. The father sought that E live with him, that she have no time or contact with her mother for three months and thereafter that she live for equal time with each of her parents. The father also sought a raft of specific orders and injunctions.
The children have not spent time with the father since December 2015. They express and display a level of estrangement from him. It is a feature of the proceedings that the mother holds and has expressed extremely negative views about the father. She also holds and has expressed negative views about the individual lawyers who have acted for the father and about experts and judicial officers who have been involved in the proceedings. Most if not all of those views are without any foundation.
Ultimately the orders referred to above are made, including, significantly, an order that E continue to live with the mother. Those orders are made for the following reasons.
Applications
The orders finally sought by the parents and recommended by the Independent Children’s Lawyer (“ICL”) were only settled on the last days of the trial.
The mother ultimately sought the orders set out in her Minutes of Orders which was marked as exhibit 14 on 1 March 2018, as follows:
1.That Consent Orders made on 23/4/2013 be set aside.
2.That the Parents share custody and parental responsibility of the Children.
3.That the Orders be made solely to promote peace, love and harmony in Children’s and their parents’ lives.
4.That the best interest of the child(ren) be determined by
4.1Well-being based on definition of World Health Organisation WHO*
4.2Emotional, psychological & physical health based on WHO definition
4.3Happiness based on the child’s reporting of his or her own mood
4.4Social standing of the child based on relative respect and competence of the child
4.5Achieved status based on the child’s achievements, social rewards as a result of the child’s achievements during his or her life that has resulted from his or her own exercise of ability and or perseverance.
5.That all Orders here forth must comply with United Nations “Convention on the Rights of the Child”, recognising that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.
6.That the Children be granted their rightful and natural dignity, their wishes respected, their voices heard and their opinions be accepted as theirs and theirs only.
7.That no reference to or allegations of (common Family Court’s accusations such as “alienation”, “schooling”) be made in arriving at Orders.
8.That the children be free to choose and state their wishes freely which parent they wish to live with, spend time with or not to live with and not spend time with.
9.That the legal professionals be prohibited from translating the Children’s decision and wishes into poisonous terms such as rejection of one or being en-meshed with the other parent.
10.That both parents undertake to have the best interest of the Child(ren) in mind in arriving at decisions in relation to the Children.
11.That the children continue to live with the Mother and be free to contact the Father by phone, email or in person without Court Orders.
12.That the Mother continues to provide for day-to-day and long term financial, physical, educational and health needs of the Children.
13.That the Father be free to contribute to the day-to-day and long term financial, physical, educational and health needs of the Children.
14.That the Parents be at liberty to write to each other about any matter that concerns the Children.
15.That the Legal professionals be encouraged by the Court to leave this broken Family alone and observe their professional code of conduct and no other interest in assessing the feasibility of bringing matters to do with the Children to Family Court.
16.That the Mother undertake not to move the Children from Australia other than to visit their maternal (or paternal) grand mother in a country other than [Country U].
17.That the current Airport watch be lifted for the Mother (only).
18.That the Father undertake to co-sign any passport form for the Children.
19.That no Orders be made leaving open the possibility of Lawyers involvement in the lives of Children.
The father sought orders in accordance with a document titled “Father’s Alternate Minute of Order” which was substituted for an earlier minute on 2 March 2018 and was marked exhibit 7. He sought as final orders:
1.The Court notes the following definitions for the purpose of these orders:
1.1“Act” means the Family Law Act, 1975
1.2“Child” means E
1.3“Children” means [D] and [E]
1.4“Parenting orders” means the orders made by consent on 23 April 2013
1.5“Parties” means the mother and the father
1.6“[E]” means [E] born … 2006
1.7“[D]” means [D] born … 2000
...
Discharge of orders
3.That the parenting orders shall be discharged.
Parental responsibility
4.That the father shall have sole parental responsibility for making decisions in relation to all major long term issues in respect of the child including but not limited to:
4.1education;
4.2religious and cultural upbringing;
4.3health;
ON CONDITION THAT:
4.4The father shall provide the mother with no less than 14 days notice in writing of any such proposed decision; and
4.5The father shall consult with the mother with regard to any such proposed decision and make a genuine effort to reach agreement with the mother about any such proposed decision; and
4.6In the event that no agreement is reached between the mother and the father, the father shall make the final decision and within 14 days of so doing, the father shall provide the mother with written confirmation of the decision.
5.That each parent shall have parental responsibility, and need not consult with the other party, for making decisions concerning the child on a day to day basis, which are not major long term issues when the child [sic] are spending time with that parent.
Introductory period for [E]
6.That the child live with the father forthwith.
7.That the independent children’s lawyer speak to the child following the making of these orders for the purposes of explaining the orders to the child and in this regard, the Court shall arrange for a family consultant from child dispute services to be in attendance and provide assistance, as required.
8.The father shall collect the child from Child Dispute Services after the independent children’s lawyer has notified the father that he has concluded his conversation with the child.
9.That for a period of 3 months after the child commences living with the father pursuant to Order 6 (“the introductory period”), the child shall not spend any time with the mother.
10.That during the introductory period, the mother shall be restrained from:
10.1Approaching the child, including at Child Dispute Services;
10.2Contacting the child by any means whatsoever including but not limited by [sic] telephone, Instagram, text message, email, snapchat, correspondence or otherwise;
10.3Causing or encouraging any third party, including [D], from endeavouring to act as an intermediary for communications to [E] from the mother and from otherwise saying or doing anything to communicate with [E] as to her living arrangements with the father;
10.4Attending or approaching within 100 metres of the school in which the child is enrolled and which she attends at any time;
10.5Attending or approaching within 100 metres of the venue of any extra-curricular activity in which the child is enrolled or registered and which she attends at any time;
11.That the mother shall within 7 days of the date of these orders cause to be delivered to the offices of the independent children’s lawyer all clothing and personal possessions of the child and the father shall collect such items from the said offices within 48 hours of being informed by the independent children’s lawyer.
12.That the father be granted leave to provide a copy of these orders and the Reasons for Judgment to any state or federal authority that might approach him in relation to [E’s] welfare or living arrangements.
Living arrangements for E
13.After the expiry of 3 months from the date the child commences living with the father pursuant to Order 6, the child shall live with each parent in accordance with the following arrangements.
14.That, unless otherwise agreed between the parties expressly in writing, the child shall [sic] with each parent in a fortnightly cycle as follows:
14.1In week 1, live with the father;
14.2In week 2, live with the mother,
with changeovers to take place at the conclusion of school on Friday or 3.00pm (if the child is not at school).
15.During school holiday periods, the child shall live with each parent for one half of each of the school holiday periods at such times as may be agreed between the parties, but failing agreement with the father for the first half of each of the said school holiday periods and with the mother in the second half of each of the said school holiday periods.
16.That, notwithstanding Orders 14 and 15 herein, unless otherwise agreed between the parties, the child shall spend time with the parties as follows on special occasions:
16.1With the father on Father’s day from 10.00am until 8.00pm should that day fall on a day when the child would not otherwise be living with the father pursuant to these orders except in circumstances where Father’s day falls on [D’s] birthday and at such times the child shall spend time with the Father from 10.00am to 5.00pm on Father’s day;
16.2With the mother on Mother’s day from 10.00am until 8.00pm should that day fall on a day when the child would not otherwise be living with the mother pursuant to these orders;
16.3With the father on the father’s birthday, if that day should fall on a day when the child would not otherwise be living with the father pursuant to these orders, from 10.00am to 4.00pm unless the father’s birthday falls on a school day at which times the child will live with the father from after school until 8.30pm;
16.4With the mother on the mother’s birthday, if that day should fall on a day when the child would not otherwise be living with the mother pursuant to these orders, from 10.00am to 4.00pm or if a school day from after school until 8.30pm;
16.5On the child’s birthday the child shall spend time with the parent with whom she is not otherwise living with on those days pursuant to these orders from after school until 8.30pm on a school day and/or if a non-school day from 10.00am to 3.00pm;
16.6With the parent the child is not otherwise living with pursuant to these orders for a period of at least 3 hours on the day of [religious holy day], for observance at such times as may be agreed between the parties, but failing agreement from after school or 3.00pm if the child is not attending school that day until 6.00pm; and
16.7On Christmas Day (25 December) each year from 2.00pm to 6.00pm, with the parent the child is not then living with.
17.That for the purposes of the school holiday periods the following shall apply:
17.1School holiday periods are defined to commence at the conclusion of the last day of the school term (“the first day”);
17.2School holiday periods are defined to conclude at the beginning of the next school term (“the last day”);
17.3Changeover is to occur at 10.00am on the midpoint day between the first day and the last day of the defined school holiday periods for all school holiday periods; and
17.4In the event that there are 2 midpoint days, then the midpoint day is declared to be the latter of the 2 days.
Arrangements for [D]
18.That [D] spend time with the father in accordance with his wishes.
School and extra-curricular activities
19.That changeovers shall occur at:
19.1The school attended by the child from time to time when either parent’s time with the child commences before or after school; or
19.2If a non-school day, the father shall collect the child from the home where the child resides with the mother at the commencement of any period the child is to live with the father and the mother shall collect the child from the home where the child resides with the father at the conclusion of the father’s time with the child pursuant to these orders;
19.3Any other nominated location agreed to between the parties in writing
20.Subject to Order 10, that both parties shall be at liberty to attend all of the child’s school functions and events to which parents are invited or expected to attend, along with all special event days in which the child may be involved or is participating in respect of her school and her extracurricular activities.
Communication
21.Subject to Order 10, that the child be permitted to contact each parent by telephone or text message at all reasonable times and neither parent shall prevent the child from contacting the other parent.
22.Subject to Order 10, that the mother be restrained from contacting the child when she is in the father’s care, save for times when the child is spending overnight time with the father and on such overnight occasions, the mother be permitted to contact the child at a reasonable time providing such contact is not more than one text or one email per day of each overnight stay.
Therapeutic counselling
23.That, unless otherwise agreed to between the parties, the mother and father do all acts and things necessary so as to cause the child, [E] to continue to attend non-reportable therapeutic counselling with [Mr F] or an appropriately qualified counsellor or psychologist nominated by [Mr F] (collectively referred to as the “therapeutic counsellor”) at all such times recommended by the therapeutic counsellor.
24.That in order to give effect to Order 23, the mother and father shall do all things and acts necessary to comply with any reasonable request by the therapeutic counsellor including causing the child, with or without the mother and/or father, to attend upon the therapeutic counsellor from time to time as may be determined by the therapeutic counsellor.
25. That the conferences and attendances upon the therapeutic counsellor be confidential and non-reportable.
26.That for the purposes of the counselling with the therapeutic counsellor pursuant to Order 23, the therapeutic counsellor shall be entitled to:
26.1Receive a copy of [Dr LL’s] reports dated 25 April 2012, 24 August 2016 and 3 August 2017;
26.2Reasons for Judgment, when published;
26.3All information from the children’s respective schools and shall be at liberty to communicate with any treating medical or therapeutic professionals upon whom the children attend from time to time;
and each party shall do all acts and things necessary to give effect to this order.
27.That the costs of the therapeutic counsellor for the child appointed pursuant to Order 23 above shall be paid equally by the mother and father as and when such costs fall due
28.That in the event [E] does not attend any appointment, the therapeutic counsellor shall be permitted to arrange with the Headmaster for any appointment in respect of the child to take place at [PP School] and the therapeutic counsellor shall inform the mother of the said appointment within 4 hours of such appointment taking place.
Injunctions
29.That the mother be restrained from:
29.1discussing the father in the presence or hearing of the children or either of them;
29.2questioning or conversing with the children or either of them about where the child/ren want to live or permitting anyone else to;
29.3making critical or derogatory remarks about the father or members of the father’s family to the children or in the presence or hearing of the children or permitting any other person to do so;
29.4making derogatory remarks about the father to third parties; and
29.5discussing these proceedings with the children or within the hearing of the children or showing the children any document connected with these proceedings or permitting any other person to do so.
30.That the parties are restrained from relocating the residence of the children from the Sydney metropolitan area without the prior written consent of the other party.
31.That the parties are restrained from changing the surname of the children.
Communication
32.That each party shall notify the other of any subsequent change to his or her residential address within 7 days of any such change.
33.That each party shall provide to the other party the names, addresses and telephone numbers of all medical professionals who may treat the children and authorise each of them in writing to provide copies of any test results, letters of referrals, reports and letters received from other medical professionals to the other party and authorise them to discuss any aspect of the children’s health with the other party.
34.That each party shall keep the other party informed via email of any major medical issues involving the children including any details relating to the children’s attendance upon a medical practitioner and any treatment prescribed.
35.That each party shall forthwith authorise the principal and staff of the school(s) that the children may attend from time to time to supply to the other party all school reports, school photographs, school counsellor’s notes, memos, school newsletters and any other information in relation to the children that the other party may request from the school(s), and the other party shall do all things necessary and meet all expenses in relation to obtaining same.
36.That each party inform the other as soon as reasonably practicable and in any event within 24 hours of any of the following which occurs whilst the children are in their care:
36.1Serious medical problems or illnesses suffered by the children;
36.2Medication that has been prescribed for the children that needs to be taken whilst the children are in the care of the other party; and
36.3Other significant matters relevant to the welfare of the children.
37.That, save in case of emergency or urgent situations, the parents must communicate with each other in relation to the children, by use of email and/or SMS.
38.That each party shall notify the other of any subsequent change to their nominated email address and mobile telephone number for such communication within 24 hours of any change to same thereafter.
39.That each party shall notify the other party of the address/es and telephone number/s of the place/s where the children will be staying during holidays spent away from the other party’s residence not later than 48 hours prior to the commencement of the school holidays or as soon as reasonably practicable.
Overseas travel and passports
40.That the father and the mother be restrained from removing the children, namely [D], born … 2000 and [E], born … 20006 [sic], from the Commonwealth of Australia without the prior written consent of the other party or an order of this Court.
41.That the Registry Manager, Sydney Registry, shall continue to retain all passports for the children, which were surrendered pursuant to Order 34 made on 23 April 2013.
In addition, the father sought orders in accordance with an Application in a Case filed 31 January 2018. The father sought that the machinery orders made on 4 April 2016 and amended on 15 September 2017 giving effect to the property settlement between the parties be amended. He sought that the trustee for sale of the former matrimonial home pay the mother’s Full Court costs obligation of $25,540.34 pursuant to orders made on 14 December 2017, including interest, to the father prior to distributing to the mother her entitlement from the proceeds of that sale.
The ICL proposed orders as set out in a document submitted during final submissions on 2 March 2018, exhibit 28, as follows:
[D]
1.All previous parenting orders for the child D born … 2000 (“[D]”) are discharged.
2.[D] shall spend time with and communicate with the father in accordance with his wishes.
3.The mother shall do all acts necessary to apply for an Australian passport for [D] and the father shall sign the application within 14 days of it being presented to him; the passport after issuing shall be held by [D].
[E]
4.All previous orders for the child [E] born … 2006 (“[E]”) are discharged.
5.The parents shall have equal shared parental responsibility in relation to long term decisions for [E].
6.[E] shall live with the mother.
7.[E] shall spend time with and communicate with the father in accordance with her wishes.
8.That [E] be permitted to contact the father by telephone or text message at all reasonable times and the mother shall not prevent the child from contacting the father.
9.The father is at liberty to provide [E] with cards, letters, photographs and gifts and for this purpose the mother shall nominate a postal address or PO Box to be maintained until [E] is 18.
10.In the event that [E] expresses a wish to spend time with or communicate with her father then the mother shall assist [E] to achieve that.
11.Each parent shall not speak negatively about the other parent to or in the presence of either of the children and shall use their best endeavours to prevent any other person from doing so.
12.The mother shall provide all necessary consents, and these orders evidence her consent, for the father to obtain school reports, school photos and other parent information from [E’s] school at his own expense.
13.Within 28 days of the date of these orders the mother shall bring [E] for a meeting with the Independent Children’s Lawyer (“ICL”) on the date and time nominated by the ICL, the purpose of the meeting being for the ICL to explain these orders and to specifically inform [E] of a way for her to contact the father in the future.
14.The ICL shall within 28 days explain to [D] the details of these orders, the purpose of the meeting being for the ICL to explain these orders and to specifically inform [D] of a way for him to contact the father in the future.
15.The ICL is at liberty to provide a copy of these orders to [E’s] school and school counsellor.
16.That within 2 months each parent pay to Legal Aid NSW the sum of $14,184.36 being their respective contributions to the costs of the ICL.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Written evidence
These proceedings had been listed for final hearing in August 2017 and that hearing was vacated. The mother had sworn an affidavit in August 2017 for that hearing. On 16 August 2017 the mother was given leave to redraft that affidavit so as to address matters that were the subject of objections made on behalf of the father. It was a surprise then, that for this later trial, the mother relied on an affidavit sworn and filed on 24 December 2015. At the commencement of the hearing I asked the mother about whether she had evidence to give about events subsequent to that date. Ultimately I directed that, provided she was able to supply a proof of the evidence she intended to give, I would allow her to give oral updating evidence for one hour. The proof of evidence is exhibit 6. The mother also filed and sought to rely on an affidavit of Ms QQ who was E’s school counsellor prior to 2017. On the basis that Ms QQ’s notes were provided in advance and she was made available for cross-examination, that leave was not opposed. I ordered that a copy of Ms QQ’s notes be provided to the Court by 4.00 pm on Wednesday 28 February 2018. At Ms QQ’s request a subpoena was issued for her notes and arrangements were made for her to be cross-examined. Later I was told that Ms QQ did not have access to all of her notes. I allowed the mother to rely on Ms QQ’s affidavit. Ultimately, neither the father nor the ICL sought to cross-examine Ms QQ and she was not required to attend Court for that purpose.
The proceedings were commenced by the mother’s Amended (sic) Initiating Application filed 2 February 2016 and the written evidence relied on by her was:
(a)Affidavit of the mother filed 24 December 2015; and
(b)Affidavit of Ms QQ filed 26 February 2018.
The father responded with his Response to Initiating Application filed 16 February 2016 and his Application in a Case filed 31 January 2018 (re appeal costs order). He relied on:
(a)Affidavit of the father filed 21 July 2017;
(b)Affidavit the father filed 6 February 2018 (“updating affidavit”);
(c)Affidavit of the father filed 31 January 2018; and
(d)Affidavit of Ms RR filed 23 February 2018.
Expert Evidence
The following expert evidence was relied on:
(a)Family Report of Dr LL dated 5 March 2012;
(b)Family Report of Dr LL dated 24 August 2016; and
(c)Family Report of Dr LL dated 3 August 2017.
An affidavit by Mr OO was filed on 19 April 2013. He prepared the report which was attached to that affidavit as a single expert appointed to give evidence in 2013 proceedings about how certain material in the nature of child pornography came to be accessed or accessible on a computer used by the father. Ultimately I was asked by the father’s counsel to exclude the affidavit. Paradoxically, the mother both challenged the appointment of Mr OO and his independence from the father and also sought to rely on or pursue some aspects of his report. For reasons given at the time, I excluded that affidavit and the attached report.
The Hearing
The hearing commenced on 26 February 2018. The mother was without legal representation. The father was represented by senior and junior counsel and the ICL by counsel. As referred to above, I gave the mother leave to give oral updating evidence for one hour on the condition that she provided a proof of evidence in advance. In order that the mother had time to prepare that proof and so that the other counsel could review their objections and cross‑examination based on the earlier affidavit relied on by the mother, after discussions with the parties I directed that the trial commence with the case of the respondent father.
The mother was at a significant disadvantage in conducting a five day trial without legal representation. That said I must acknowledge the practical allowances and forbearance shown during the trial by the advocates for the father and the children. The mother’s cross-examination of the father revealed more about her than it did about him. It was put to the mother in cross-examination that she elected to be without legal representation and she disagreed. It was put to her that she had the resources to afford legal representation and she answered to the effect: “It is not a matter of resources.” Given the overall financial circumstances of the mother, that must be right. It is the mother’s contention that her then legal team bullied her into signing consent orders in April 2013 and, some years later, that members of another legal team retained by her were themselves bullied into not acting on her instructions. The mother chose not to have legal representation for the purposes of the trial before me.
The mother displayed a polite and cooperative manner during the trial but, both in her written material and in the case she presented, the mother was insulting and offensive in many of her references to the father, to the lawyers who have acted for the parties (particularly but not exclusively about those that acted for the father), to Court experts and to judicial officers. It was remarkable, then, that during the trial she apparently took offence at comments critical of her conduct and credit.
Thanks is nevertheless due to the mother and to counsel for the father and the ICL for accommodating the restrictions on time that I deemed to be necessary to contain the trial within the days allocated.
On 2 March 2018 a number of orders were made after hearing from the parties. Those orders were as follows:
1.Within two months from todays’ date the husband pay to Legal Aid NSW $12,534.36 and that within that same period the mother pay to Legal Aid NSW $14,184.36 in each case relative to their contributions to the cost of the Independent Children’s Lawyer.
2.The parties forthwith do all things and sign all documents to cause passports to issue for each of the subject children, [D] born … 2000 and [E] born … 2006, and to cause any issued passports to be provided to the Independent Children’s Lawyer to be held by him pending their agreed disposition by the parents or further order of the Court.
3.In the event that the mother seeks to take either of the children outside Australia as soon as practicable upon forming that decision she is to notify the father in writing of the proposed travel, the destination or destinations for that travel, the period of the travel and the purposes of the travel and at that time, or as soon as practicable thereafter, provide to him copies of any travel itinerary, return air tickets and a list of the place or places where the children will be accommodated during that travel for any substantial period together with their contact details at those addresses.
4.The father respond to the mother’s request as per order 3 as soon as practicable thereafter and the Court notes that it may be that he will seek that there be some security for the mother’s repatriation of the children to Australia whether by way of a monetary bond or other security.
5.Save for the orders made herein judgment in these proceedings is reserved. The parties are not excused on delivery of judgment.
6.In relation to an Application in a Case filed 31 January 2018 it is ordered that [Mr GG], the trustee appointed pursuant to orders made on 18 November 2016, to conduct the sale of the property situate at and known as [2 Q Street, Suburb R] in the state of New South Wales, pay to the husband from the wife’s share of the sale proceeds prior to any distribution to her pursuant to those orders, the sum of $25,540.34 plus $104.96 being the interest calculated on that sum until 31 January 2018 together with interest at $5.25 per day from 31 January 2018 to the date of payment by the trustee.
NOTATIONS:
1.The Court notes that there may subsequently be an issue between the parties as to the proportions in which they should ultimately be responsible for the Legal Aid costs and that may be agitated in relation to costs generally.
2.The Court notes that it is anticipated that an order will be made in advance of delivery of judgment requiring the mother to cause the child, [E], to be presented at the registry by arrangement with the manager of Child Dispute Services on the day of delivery of judgment to await delivery of judgment and communication between her and her lawyer assisted if practicable by the manager of Child Dispute Services in relation to an explanation as to the outcome of the proceedings.
Short History
The father is 64 years of age. That was his evidence during cross-examination. I understand that there are documents that also record that the father was born in 1948. The mother was born in 1962 and as at the date of the hearing she was 56 years of age. The parents commenced cohabitation in 1987 and married in 1992 in a religious ceremony. They registered their marriage in Australia on 9 August 1999. The parents separated under one roof in either 2007 (according to the mother) or 2011 (according to the father). They lived in separate premises after December 2011 at which time the father left the former matrimonial home. D and E are the only children of the parties’ relationship and it is my understanding that neither of the parties has any other children.
Credibility and Submissions
The father presented as a very careful witness. Because the order of the trial was reversed, he was unexpectedly called for cross-examination on the first morning. The father explained that he had neither read over his affidavits nor had the opportunity to re-read the affidavit relied on by the mother, before he gave evidence.
The father was obviously distracted by the tangential and undisciplined cross‑examination by the mother as well as by the interruptions necessitated by that style of cross-examination. However, no harm was done to the father’s credit in cross-examination.
The mother was a poor witness. On some issues she failed to answer the question asked and, despite requests from the bar table or my directions, insisted on long, unresponsive and sometimes internally inconsistent answers. The mother was invited to reflect on some of the assertions she has made about various matters and people and, albeit not detailed or fulsome, she ultimately conceded that some of her allegations were inappropriate. However, she contends that a computer expert Mr OO was forced on her by the father. She did not resile from that complaint despite being reminded that, pursuant to a Court order, the father’s solicitors proposed the names of three experts and she chose Mr OO. The mother asserted that the father had her bankrupted despite the fact that she was bankrupted on the petition of a body corporate because of a debt for strata levies. She alleged that the father also had her evicted from the former matrimonial home despite the fact that she knew she was obliged to leave that property by court orders made many months prior to the date she ultimately left. Arguably the problem is the mother’s judgment more than just her credit, but the effect is the same. In many instances, the mother was an unreliable witness.
The only other witness required for cross-examination was Dr LL who gave evidence as an expert and his credit was not challenged.
Background Facts
The father was born in Country U. On 14 February 1985 the father became an Australian citizen. The father had been married before he met the mother.
The mother was also born in Country U.
The parents met in November 1983, soon after the mother had separated from her first husband.
The parties both have tertiary qualifications. I understand that the father is an academic. His degrees include a Ph.D. Similarly, I understand that the mother has a Ph.D. but she is not currently in paid employment.
The parties started living together in late 1987. In 1992 the parties were married in a religious ceremony in the United States of America (“US”). They registered their marriage in Australia on in 1999.
Both children were born in the US. D in 2000 and E in 2006. The mother explained that the parties arranged for her to give birth in the US because she had family support there and none in Australia. In addition, I understood the mother to say that at the time at least one of the children was born, if not both, the father was working in Asia and was only able to attend for the birth/s for a short period.
Both children attended PP School. E remains there, in year 7. D completed his schooling at SS School, where he undertook the HSC exam in 2017.
On 6 November 2008 an interim apprehended domestic violence order was made against the father, ex parte, in Suburb TT Local Court. On 11 December 2008 the application for a final order was withdrawn by the police and dismissed.
On 21 October 2011 the mother commenced parenting proceedings in this Court.
On 18 November 2011 interim parenting orders were made. Those orders provided that the children live with the mother and spend time with the father:
·from 9.00 am to 5.00 pm every Saturday;
·from 9.00 am to 5.00 pm every alternate Sunday;
·from after school each Tuesday and Thursday until 6.30 pm;
·from 2.00 pm until 6.00 pm on Christmas Day; and
·during the 2011/2012 school holidays, from 2.00 pm to 6.00 pm on Mondays and Wednesdays.
On 2 April 2012 the first expert report prepared by Dr LL was released to the parties. The proceedings were subsequently expedited and were ultimately listed for hearing over seven days in April 2013.
On 23 April 2013 final parenting orders were made by consent. These orders provided that the parents have equal shared parental responsibility, that the children live with the mother and spend time with the father on five nights each fortnight as well as half the school holidays. The mother contends that her lawyers bullied her into consenting to those orders.
The parties reached agreement in principle on financial matters following a private mediation conducted by a senior barrister in June 2013 but were unable to finalise an agreement.
The financial proceedings were ultimately heard over five days in July and November 2015.
On 28 November 2015 D and the mother entered the father’s home while he was overseas. On 14 December 2015 the father made a statement to police alleging that the mother entered the premises without his permission and stole from him. The mother was charged with one count of larceny and one count of steal property in dwelling. The mother was subsequently acquitted of all charges.
8 December 2015 was the last time the children spent any meaningful time with the father.
On 15 December 2015 the father filed an application seeking that the mother return the children to him and if she failed to do so, that an order issue to recover the children from the mother.
On 24 December 2015 the Court refused to issue a recovery order and the orders of 23 April 2013 were continued. An order was also made that any Initiating Application to be filed by the mother seeking to amend the parenting orders be filed within 28 days.
On 16 January 2016 the father travelled to UU Town with his sister and his nephew to watch E and D perform in an annual concert. He spoke briefly, for no more than five minutes, with E and D separately.
On 2 February 2016 the mother filed an Amended Initiating Application. There is no indication as to why it was styled as an “Amended” application. That was the application that commenced these proceedings.
On 4 April 2016 judgment was delivered in the financial proceedings. The trial judge found that the parties’ net assets had a value in excess of $14 million and made orders that where intended to divide that the pool of assets as to 55 per cent to the wife and 45 per cent to the husband. The wife appealed against the orders.
On 9 April 2016 the father suffered injuries as a result of a motor vehicle accident whilst riding his bicycle. He underwent surgery at VV Hospital for right shoulder reconstruction on 28 April 2016 and further surgery on 19 January 2017 and 27 April 2017.
On 24 April 2016 the New South Wales Police attended the mother’s home following an incident where there was a scuffle when the mother took D’s phone and D subsequently took his mother’s phone and refused to return it. The mother had called the police.
On 31 May 2016 orders were made staying various orders made on 4 April 2016 including the sale of 2 Q Street Suburb R (“the former matrimonial home”) pending the outcome of an appeal. This was conditional on the mother being responsible for various payments in relation to the former matrimonial home.
After a hearing on 31 October 2016 at which the mother was present, on 18 November 2016 an order was made that the mother vacate the former matrimonial home by 1 January 2017.
On 3 November 2016 the father commenced proceedings in the Supreme Court of New South Wales seeking injunctions to restrain the mother from publishing online allegations of paedophilia and sexual abuse about him. On 7 November 2016 an interim order was made by Justice Campbell to restrain the mother from publishing such material online.
On 16 November 2016 the father filed an application in the Supreme Court of New South Wales seeking a declaration that the mother was in contempt of Court as she failed to remove the online material.
On 23 November 2016 further orders were made in the Supreme Court of New South Wales restraining the mother from publishing information online.
On 9 February 2017 a trustee was appointed for the mother’s bankrupt estate.
On 3 March 2017 the parties were sent a notice to vacate the former matrimonial home.
In April 2017 the mother and children were evicted from the former matrimonial home.
On 1 May 2017 the father filed a second application in the Supreme Court of New South Wales alleging that the mother was guilty of contempt of Court.
On 15 June 2017 final orders were made in the Supreme Court of New South Wales that the mother be restrained from publishing information online regarding the father being a paedophile or involved in child sexual abuse.
On 19 June 2017 the father underwent a right scapula nerve block to ease the pain in his shoulder. On 3 July 2017 the father underwent a further surgery on his shoulder in the form of a right suprascapular nerve pulsed radiofrequency ablation procedure.
The wife’s appeal against the property settlement orders was determined on 15 September 2017. The appeal was upheld in part but only to address an allowance for paid legal fees and to better give effect to the expressed intention of the trial judge.
On 7 September 2017 the mother admitted the conduct alleged against her in statements of charge filed 16 November 2016 and 1 May 2017 and the matter was adjourned for sentence. On 2 November 2017 that matter came before Justice McCallum and the mother sought to withdraw her admissions. Justice McCallum indicated that she was not convinced that the mother had established a basis for withdrawing her pleas and judgment was reserved. As far as I know judgment has not been published in those proceedings. The mother stated in cross-examination that she had admitted to the charges only to the extent that she acknowledged that it was written from her Facebook account and therefore it must have been her. She stated that she had no memory of writing it. The mother stated in cross-examination:
I told the solicitor if it is in there it must have been me but I haven’t written it. I don’t know how it got there…
The mother suggested in cross-examination that someone had hacked her Facebook page and posted the material through her account.
On 15 September 2017 the mother’s appeal against the final orders made on 4 April 2016 was determined and the order that the property be sold was undisturbed.
The Expert Evidence
The single expert was Dr LL. His qualifications[1] include the following:
(a)Bachelor of Medicine, Bachelor of Surgery
(b)Diploma of Psychiatry
(c)Specialist Certification in Psychiatry –
(d)Fellow - Royal Australian and New Zealand College of Psychiatrists 1982
(e)Doctor of Medicine
[1] Dr LL’s curriculum vitae is exhibit 3
Dr LL is a forensic child psychiatrist in private practice in Sydney. His work experience includes:
(a)Staff Psychiatrist,
(b)Consultant Psychiatrist,
(c)Acting Head, Department of Psychiatry,
(d)Head, Department of Child and Adolescent Psychiatry,
(e)Foundation Professor of Child and Adolescent Psychiatry and Professor of Psychiatry
(f)Director, Department of Psychiatric Services
Dr LL’s clinical activities include assessments and preparation of primary and advice reports for Court in respect of Family Court disputes over children, juvenile offenders, mentally ill juveniles, child abuse (sexual, psychological and neglect) and, relevantly, children’s memory and evidence and other child welfare matters.
Dr LL provided three expert reports in this matter:
(a)Expert Report dated 5 March 2012;
(b)Expert Report dated 24 August 2016; and
(c)Expert Report dated 3 August 2017.
The Legislation
The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA of the Act provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC of the Act identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply and if it does apply, it can be rebutted. Findings are made by reference to what is in the child’s best interests.
For the purposes of the determination of these proceedings, I will adopt the following approach:
(a)set out the current parenting arrangements;
(b)set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
(c)where possible and relevant, consider and make findings about matters set out in s 60CC;
(d)consider and make findings about parental responsibility, including considering the presumption in s 61DA;
(e)apply s 65DAA of the Act if relevant and assess the proposals in light of that provision;
(f)if 65DAA is not relevant, assess the proposals against the best interests criterion;
(g)consider and make findings about living arrangements; and
(h)make orders.
The Current Arrangements
For more than two years the children have lived with the mother and save at school events and interviews with Dr LL, have spent no time with the father.
The Parties’ Proposals
I have set out the parties proposals earlier in these reasons.
It is agreed that any time or communication between D and his father should be in accordance with the wishes of D.
The range of dispute on the key areas seems to be:
(a)whether parental responsibility for E should be shared or exercised solely by the father;
(b)which of the parents E should live with; and
(c)what ancillary orders and injunctions should be made for the benefit of the children.
Section 60CC Considerations
Section 60CC relevantly provides:
Primary considerations
(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents.
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to a child.[2] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[2]McCall & Clark (2009) FLC 93-405.
The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[3]
[3]Champness & Hanson (2009) FLC 93-407.
There is meaning in the mother’s relationship with each child. That is not to say that there are no concerns about those relationships.
On the other hand, the children are estranged from their father. Despite orders to the contrary, the children spend no time with the father and they have not done so in any real sense since December 2015.
The father’s proposal amounts to the proposition that he will not be able to have a meaningful relationship with E unless she lives with him and for the first three months, has no time or communication with the mother. The mother’s contention is that if the current arrangements continue, at some time in the future E will choose to spend time with the father and communicate with him.
(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
‘Abuse’ and ‘family violence’ are defined terms under the Act. Section 4 provides:
“abuse” , in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Section 4AB of the Act provides:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member ), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member‘s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child‘s family towards another member of the child‘s family; or
(b)seeing or hearing an assault of a member of the child‘s family by another member of the child‘s family; or
(c)comforting or providing assistance to a member of the child‘s family who has been assaulted by another member of the child‘s family; or
(d)cleaning up a site after a member of the child‘s family has intentionally damaged property of another member of the child‘s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child‘s family by another member of the child‘s family.
Section 60CC(2A) deals with the weight to be given as between the primary considerations:
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
It is likely that the mother has prevented the children from keeping a connection with their father. Despite a raft of allegations made in the proceedings, mainly against the father, that is the only credible suggestion of family violence as defined in the legislation.
Additional Considerations
(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
In the expert report dated 3 August 2017, Dr LL reported at page 14 that D expressed the following views in relation to seeing his father:
Having indicated that he had no desire to see his father at this juncture, I asked him whether he felt that his father may become a part of his life later on. He seemed open to this idea, although he added that his father would need to change, by which he meant that his father would need to control his temper and to respect boundaries…I tried to get him to expand a little bit more on the possibility of seeing his father again and whether his own attitude may change. He reflected that some things change with time, and he seemed a little wistful.
At the time of the hearing D was 17 years and five months of age. The father has acknowledged that given his age, the Court will have significant regard to the views he has expressed. The father recognises that given D’s age that he should be able to spend time with each of the parents as he wishes. Given what D has said to Dr LL, there is hope that D may contact the father in the future of his own accord.
In the expert report dated 3 August 2017 at page 18 Dr LL’s recorded that E expressed the following views in relation to seeing her father:
I asked her about how she feels about not seeing anything of her father now. She said that she is happier because of this. She said that all he did was shout at her and she used to feel unsafe…I asked her whether there were things that she missed about her father and she said that there was not. I asked her whether she thought she might feel more positive about seeing her father some time in the future. She made it clear that she did not think that would happen.
Ultimately, Dr LL came to the following conclusion at page 20 of his report dated 3 August 2017:
The children’s views remain unchanged from my last assessment, and I remain of the view that their mother has played a significant part in this. However I think it is likely that in the past 18 months they have been less embroiled in the daily vagaries of her relationship with [Mr Bagheri], probably because for more than 18 months now she has not had to cope with her own feelings in relation to each contact visit.
There is not a significant dispute about the approach that should be taken to orders about D. The common ground approach is consistent with D’s expressed views. He is nearly an adult and his views must be given significant weight, if not treated as determinative.
E is 12 years of age. Her views would strongly support orders that would have her living with her mother and, at least for the time being, having no time with her father. In 2017 she told Dr LL that when she saw the father at a school open day in 2017 she felt harassed.[4] E holds very negative views of the father and Dr LL reported that he continues to feel that while some of her feelings may be justified, the most extreme of her views are less likely to have a sound foundation.
[4] Page 18 of Dr LL’s report dated 3 August 2017.
E’s views have been influenced by her mother and it is likely that they have also been influenced by her brother. Despite that, they have been consistently held over many years. E is now 12 years of age. Weight must be given to her views.
(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The children have not spent any substantial time with their father since 8 December 2015.
Dr LL said at page 20 of his report dated 3 August 2017:
In terms of their relationship with their mother, I felt that there had been a significant positive change since I last saw them. In [D’s] case, there was previously significant tension between them about his internet usage, and she saw him in somewhat more oppositional terms, whereas now their relationship seems more balanced, she seems to feel less concerned about technology addiction, there seems to be less conflict between them, and they related to each other in quite an appropriate way for their respective ages and roles. In E’s case, she seemed much more self-confident and the overall history that I was provided with seemed to indicate that the anxious attachment to her mother that I had seen before had significantly abated.
(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
There is no suggestion that the mother has ever failed to take up such opportunities. I take it from the mother’s cross-examination of the father that she makes a complaint about the father in respect of this issue. Albeit that he did not entirely agree with the mother’s contention, the father agreed that he returned to his work in Asia soon after the birth of each child. From that passage of cross-examination there was no suggestion that the father did not take up opportunities to spend time or communicate with either child or participate in decision making about them for reasons not associated with the demands of his employment or other commitments.
The father has not spent time with the children since December 2015. In my view the father took every opportunity available to him. In relation to communicating with the children he said something to the effect that he was asked by the ICL to leave the children alone.
(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
This is not a significant issue in the case, if only because the parents’ conflict is of much greater concern and the evidence is not clear about financial matters. On the basis of the evidence before me, it is probable that both parties have met their obligations in this regard.
(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The father is seeking that E live with him to the exclusion of the mother for three months and then that she live for equal time between her parents. The father acknowledges that given D’s age, any time he spends with him will be subject to his wishes.
In his report of 3 August 2017 at page 24 Dr LL explored the options then proposed by the father that E relocate with him to Canberra or that she attend a boarding school to remove her from the influence of the mother. Dr LL did not believe that boarding school was a viable option. In terms of the proposal that E live with the father away from Sydney in a place like Canberra, Dr LL stated:
I am of the view that she would enter into such a change with a great deal of apprehension and again bearing in mind that she has only just come out of quite a long period of quite intense and clinical anxiety, it is my view that there is a significant risk of relapse and that her father would not be able to assist her through this, nor would counselling have a great deal of impact.
Most importantly a change in E’s circumstances so that she lives with the father would result in a separation from her brother. Dr LL stated at page 24 of his 3 August 2017 report:
A move to her father’s home would separate her from her brother who has probably been the most consistently effective emotional life raft that she has had over the years despite [D] himself being quite troubled at times.
(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
It is no doubt a reflection of the complexity of the issues for this family, and the fact that the father’s proposals were only settled on the last day of the trial, that there is no evidence about how the father would manage the practicalities of the orders he seeks. There is a level of estrangement between E and the father. The father proposes that forthwith upon the making of orders in these proceedings, she live with him and have no time or communication with the mother for three months. That would mean that the father would have to be available to undertake sole parenting of E for three months. It is not clear what work travel is currently required of the father, if any. Arrangements would be necessary if there was to be such travel for the first three months of the orders. Orders could be crafted to constrain the behaviour of the mother for three months but that would be more difficult in respect of E. D and E have a loving relationship and that has been one constant for E. There would be an understandable concern with the father’s proposals that D could be enlisted or could himself adopt the role of agent for the mother with E and it may not be practicable to deflect him.
(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The proceedings reveal the basis for significant concerns about the parenting capacity of each of the parents.
In his expert report of 5 March 2012 at page 36 Dr LL stated that the capacity of the parents to provide for the needs of the children has been greatly impacted by the conflict between them. He stated that:
…this circumstance represents a high degree of selfishness and a neglect of the children’s needs as well as exposing them to abuse. This of course is a major parenting deficit and in my view both parents must be regarded as being deficient in this respect.
The conflict is unabated since that report.
As to the mother, a number of concerns arise in relation to her parenting capacity.
The mother’s inability to foster a good relationship between the children and the father
The mother contends that she has consistently supported the father’s relationship with the children and has promoted him to them. The mother seeks orders that provide for the children to elect to spend time and communicate with their father.
However, there is a fundamental problem in the mother’s case. If the mother’s allegations against the father are substantially true:
(a)there would be no reason to encourage a good relationship between the children and the father, quite the contrary; and
(b)there would be no justification for leaving to either child the choice to communicate with the father or to spend time with him.
There is some evidence, as provided by Dr LL in his report dated 3 August 2017, that the mother has not been encouraging the children to have a relationship with their father. Dr LL stated at page 21 of his report:
When the visits were occurring, [Ms Goudarzi’s] extreme distrust of [Mr Bagheri] probably compelled her into cycles of warning, debriefing and otherwise undermining each of the children’s visits as they occurred.
The following matters also come to attention in respect of the mother’s parenting capacity.
The exposure of the children to the mother’s complaints
The mother has strongly expressed, and apparently holds, highly critical views about the father, the lawyers retained from time to time in these proceedings, court experts, the Court itself and at least some of its members, and others who have interacted with her in an official capacity while these proceedings have been on foot. The views have been disseminated beyond the forum of these proceedings and have been expressed in scandalous and unequivocal terms. Some of the views are extreme to the point of being paranoid and incredible. I am confident that the children have been exposed to the mother’s views, at least to some extent. Indeed it is likely that the children have been inculcated with some of the mother’s aberrant views. According to the mother, the father is a paedophile, he has sought out child pornography, he has had sex with minors, he is guilty of identity and revenue fraud, he has colluded with his lawyers, court experts and others to abuse the wife, including having her charged with break and enter, bankrupting her and having her and the children evicted from their home.
Of less importance to the children, but going to the mother’s general behaviour and thought processes, she has variously expressed views including the following:
·among other complaints, the mother has alleged that the judge who heard the parties’ property settlement proceedings had such a relationship with the senior counsel who acted for the husband that she should have withdrawn from the proceedings. At one point the mother alleged, without providing any foundation for it, that the judge was married to that counsel. She did not repeat that last assertion during her evidence before me but asserted that she discovered to her surprise that after the hearing and before judgment in the property proceedings the judge and the counsel had jointly presented a paper at a professional conference. If the mother raised her concerns about an improper connection between the judge and that counsel, in the course of her appeal against the orders made by that judge, there was no reference to it in the evidence before me.
·as to her own lawyers, the mother contended that the lawyers that represented her when she agreed to final parenting orders in 2013, bullied her or otherwise forced her to agree to orders that she did not support and which were inappropriate. On the other hand, she asserts that lawyers that represented her more recently were themselves bullied into not consulting with her and not properly representing her instructions. The mother was at pains to say that she considered that the counsel who acted for her on the more recent occasion behaved in a professional manner but the mother said that she had nevertheless complained about that counsel to the Legal Services Commissioner.
·as to the lawyers who have acted for the father, the mother has been particularly scathing. She would have it that they and/or the individual practitioners have misled the Court and acted on behalf of the husband to damage her and disadvantage the children.
·according to the mother, the solicitors for the body corporate that obtained a judgment against the parties, who issued a bankruptcy notice against the wife and ultimately obtained a sequestration order against her, acted dishonestly and inappropriately.
·the mother’s bankruptcy trustee was said by the mother to have failed to meet his obligations and/or to have made an excessive charge for his services and/or to have failed to pay one or more debts proved in the bankruptcy.
·Mr F who was retained by the parties to assist the children and the father to improve their relationships was variously said by the mother to have failed in his professional responsibilities and yet to be unqualified.
Arising from some of the mother’s complaints there have been defamation proceedings in the Supreme Court of New South Wales. In October 2016 the father was informed about a posting, critical of him, on the mother’s Facebook page. On 3 November 2016 the father commenced proceedings in the Supreme Court of New South Wales seeking injunctions to restrain the mother from publishing online allegations of paedophilia and sexual abuse about him. On 7 November 2016 an interim order was made by Justice Campbell to restrain the mother from publishing such material online.
On 16 November 2016 the father filed an application in the Supreme Court of New South Wales seeking a declaration that the mother was in contempt of Court as she failed to remove the online material.
On 23 November 2016 further orders were made in the Supreme Court of New South Wales restraining the mother from publishing information online.
On 1 May 2017 the father filed a second application in the Supreme Court of New South Wales alleging that the mother was guilty of contempt of Court.
On 15 June 2017 final orders were made in the Supreme Court of New South Wales that the mother be restrained from publishing information online regarding the father being a paedophile or involved in child sexual abuse.
On 7 September 2017 the mother admitted the conduct alleged against her in statements of charge filed 16 November 2016 and 1 May 2017 and the matter was adjourned as to sentence. On 2 November 2017 that matter came before Justice McCallum and the mother sought to withdraw her admissions. Justice McCallum indicated that she was not convinced that the mother had established a basis for withdrawing her pleas and judgment was reserved. As far as I know, at the time of the trial, judgment had not been published in those proceedings.
There is an aspect of the mother’s complaints made in these proceedings and beyond them, whereby she is critical of the family law system. With the florid and offensive personal attacks put to one side, there is no reason to criticise the mother for believing and advocating for a different approach to family law than that which she has experienced during her long family law dispute. Minds can legitimately differ about the best structures and services to resolve civil family law disputes. However, there is no scope for changes to be made to the law or structures of Australian family law in the determination of these proceedings.
The state of the former matrimonial home when the mother moved out in April 2017
There are photographs in evidence taken of the former matrimonial home after the mother was removed by the sheriff. Of all the matters that give rise to a concern about the mother’s capacity, this is not of significance. The photographs reveal personal items spread about and furniture and fittings damaged and jumbled together. Given the situation that the mother allowed to pertain, it is not remarkable that the property was in a very untidy state after her departure. In my view the state of those premises is not an important negative reflection on the mother’s parenting capacity.
The mother’s call to police to recover her mobile telephone from D
Dr LL referred to the incident in April 2016 where the mother called the police following a dispute with D and a tug of war between them over a telephone. Dr LL expressed some concern that the mother had overreacted at the time by calling the police however he is satisfied that the mother is no longer as concerned about D’s use of electronic devices. I took up that issue with the mother and I understood her to say that D still has a weakness in respect of his overuse of electronic devices but that he now has it under better control. Dr LL reported that in the past 12 months the children have generally been functioning better psychologically and academically and more maturely. As to calling the police to recover her mobile phone from her son, the mother seemed to think that it was important to tell me that she only rang 000 on that occasion because she did not have her mobile phone. If she had been able to use her mobile phone she would in preference have rung Suburb P Police Station. During her oral evidence the mother said something to the effect that this sort of incident was a proper use of police resources.
The mother’s bankruptcy
The mother is apparently greatly aggrieved about being bankrupted.
I am satisfied that the mother could have avoided being made bankrupt and could have spared the children any anxiety that they experienced thereby.
I understand that the sequence of events was as follows:
·order 6.2 made by this Court on 4 April 2016 was to the following effect:
6.2 the parties shall be equally responsible for the payment of the strata levy payments to the Owners of Strata Plan No. ... relevant to the former matrimonial home as and when they fall due and if any payments are not made by the husband or the wife (“the first party”) and the other party makes such payments for the first party, the total amount of the payments made by the other party shall be deducted from the share of the sale proceeds the first party is to receive and paid to the other party
·on 31 May 2016 and on the mother’s application, the operation of some of the orders made on 4 April 2016, including order 6, were stayed pending the determination of the mother’s appeal. The stay was granted on condition that the mother pay, as and when they fell due, certain payments including the strata levy payments on the home.
·strata levies fell due for the former matrimonial home.
·the body corporate obtained a judgment against the parties for the debt.
·the solicitors for the body corporate secured the issue of a bankruptcy notice addressed to the mother.
·on 9 February 2017 a sequestration order was granted against the mother by the Federal Circuit Court on the application of the body corporate.
·on 21 June 2017 the Federal Circuit Court made an order by consent, setting aside the sequestration order and ordering that the mother pay the costs of the proceedings and of the bankruptcy trustee.
Justice Cleary found that the net pool of assets of the parties was worth many millions of dollars and ordered that it be divided so that the greater share went to the mother. Whatever was done or not done by others, I am satisfied that the mother could have avoided being made bankrupt.
The removal of the mother and the children from the former matrimonial home
The mother is apparently greatly aggrieved about being evicted by the sheriff from the former matrimonial home in April 2017.
I am satisfied that the mother could have avoided being evicted by the sheriff and that she unnecessarily exposed the children to that experience.
I understand that the sequence of events was as follows:
·at all relevant times the mother and children were living in the former matrimonial home.
·on 4 April 2016 final orders were made for property settlement, including an order for the sale of the former matrimonial home.
·on 31 May 2016 the order to sell the former matrimonial home required by order 3 made on 4 April 2016 was stayed pending the outcome of an appeal. This was conditional upon the wife paying certain fees on the former matrimonial home as and when they fell due.
·in October 2016 the mother deposited $100,000[5] into E’s account with the Commonwealth Bank and the balance of that account did not fall below $100,000 until it was closed on 18 April 2017.
·after a hearing on 31 October 2016 at which the mother was present, on 18 November 2016 an order was made that the mother vacate the former matrimonial home by 1 January 2017.
·on 3 March 2017 a writ of possession issued from the NSW Sheriff to the mother requiring that she vacate the former matrimonial home prior to 1.30 pm on 11 April 2017.
·the mother and children left the former matrimonial home on 11 April 2017.
·on 15 September 2017 the mother’s appeal against the final orders was determined and the order that the property be sold was undisturbed.
[5] Exhibit 10
The mother had months to make arrangements to vacate the former matrimonial home and she had access to funds including, but by no means limited to, the funds held in E’s account. Whatever was done or not done by others, the mother could have readily avoided the involvement of the sheriff on 11 April 2017.
In my view the mother has displayed significant deficiencies in her parenting. Of course there are positives too, but the children could have been spared a great deal of stress and anxiety if the mother had behaved in a more responsible and child focussed manner.
The father
Circumstances have meant that, in terms of his parenting, the father is a less well-known quantity than the mother.
Dr LL recorded in his 2012 report at page 17 that during the period from December 1999 to October 2011 the father had left Australia on a regular and frequent basis. By Dr LL’s calculation the father averaged about 10 trips a year for an average duration of about 10 days per trip. Dr LL noted the parents dramatically diverged in their accounts of the situation in the former matrimonial home, their respective roles with the children, and particular salient interests involving the children (as well as almost every other matter about which Dr LL enquired). It was agreed that the mother has been the primary care giver but there was a significant dispute between the parents about the father’s involvement with the children. The mother alleged that the father was only intermittently and inconsistently involved with the children and that he played very little part in the children’s day-to-day routines and activities. The father contended that although the mother was primarily responsible for caring for the children and the maintenance of their day-to-day routines he was as active as he could be within the time available to him and that he had developed a good relationship with both of the children. Dr LL observed that E seemed quite securely attached and played happily in her mother’s presence, engaging her mother whenever she wished and behaving in an emotionally and physically affectionate way towards her mother. The pattern of her behaviour observed by Dr LL with the father was very similar to that with her mother. He thought this behaviour was probably more consistent with E having had quite a good relationship with the father during the parties’ relationship as contrasted with the mother’s account. Dr LL regarded the father’s as a secondary attachment to E compared with E’s attachment to her mother.
Dr LL opined that the parents had been locked in an intense tactical battle for financial advantage and the hearts of the children. Dr LL’s overriding concern in that area was both parents’ selfish engagement in their own conflict to the exclusion of the children’s welfare. Beyond that Dr LL thought probably that their attitudes towards parenting were fairly similar. Dr LL thought that the parenting environment in the home had been dominated by the conflict between the parents over the preceding five or six years. It seemed to him that both parents were roughly equally responsible for that and he thought that each of the parents had the capacity to move the children out of that situation but they did not do so, possibly primarily for reasons of financial gain. To Dr LL that circumstance represented a high degree of selfishness and a neglect of the children’s needs as well as exposing them to abuse. He considered those circumstances to be a major parenting deficit and in his view both parents must be regarded as being deficient in that regard.
Dr LL formed an unfavourable view of each parent’s honesty and reliability and despite both parents’ protests that they were primarily child oriented it was Dr LL view that the conduct of each of them has displayed a high degree of selfishness and ignored the children’s well-being. Dr LL observed that the mother had carried the majority of the responsibility for caring for the children and not surprisingly that the children’s strongest attachment was with her. On the basis of the material available to him in the 2012 report Dr LL was of the view that the then existing arrangement should not be interfered with and that they should continue to live with their mother and that she should carry sole parental responsibility.
In his report dated 24 August 2016 Dr LL recorded that the father had been very positive about the period after the 2013 orders. His overnight time with the children had resumed and despite some interference from the mother, the children were settling in. All of that changed with the events of November 2015 and in December 2015, the father’s time with the children was stopped. Dr LL recorded that both children were adamant that they did not want to see their father and that the mother was also very negative about that. Dr LL felt that there was little to be gained by seeing the children with their father when they were in such a negative frame of mind. The father conceded to Dr LL that on a couple of occasions he had shouted at D for disciplinary reasons.
D told Dr LL that if it was up to him he would not have continued to visit his father after 2013, however he did continue to do so in order to accompany E. Dr LL understood D to mean that he thought E was scared of being with her father. E told Dr LL that her father shouted at her, he does not let her call the mother, he approaches her at sports and, if he is close to her, he holds her hand very hard. She also said that the father gave her lectures, for instance about not saying good night. She complained that sometimes these lectures last for up to two hours and he also calls her the “b…” word which makes her angry. She also complained that the father compared her unfavourably to a friend of hers. She also told Dr LL that although her father brags about her when they have visitors, she does not feel that he is proud of her. She explained that she thinks this because he finds fault with her in private. She told Dr LL that she would not want to visit her father. She also indicated that she would not want to see him on the day of Dr LL’s assessment. E’s school counsellor Ms QQ told Dr LL that she had observed the father approaching E at school and that E seemed to recoil from him. Dr LL observed a significant deterioration in the children’s relationships with the father compared with his observations for the 2012 report. That particularly applied to E’s relationship with her father.
On 9 April 2016 the father suffered injuries as a result of a motor vehicle accident whilst riding his bicycle. He underwent surgery at VV Hospital for right shoulder reconstruction on 28 April 2016.
Dr LL saw the father on 2 August 2016 for the purposes of the second report and the father reported that he did not obtain a very good result from the operation in the sense that he had developed a frozen shoulder. He told Dr LL that he had been taking an anti-inflammatory medication, strong pain relief and medication to counter side effects of the anti-inflammatory medication. He indicated that he required some assistance around the house because of his level of disability. On that occasion the father had his right arm in a sling fitted to hold his forearm deeply flexed with his hand up to about shoulder level. Dr LL reported that he sat in a hunched position and he appeared to be wincing with pain if he accidentally moved his right arm or shoulder. Dr LL reported that by coincidence he saw the father a few days later in the street and watched him for about 30 seconds. He reported that the father strode past without seeing Dr LL. Both his arms were swinging including his right arm which seemed to be moving reasonably freely. His right arm seemed to be fully extended and the father did not appear to be in obvious discomfort. When the father saw Dr LL he immediately told him that his arm was feeling a lot better. In the August 2016 report at page 26 Dr LL reported that he was very concerned that the disparity between his two observations of the father indicated a capacity for the father to misrepresent the situation and to make a deliberate attempt to gain sympathy. Dr LL felt that it was likely that the father’s state of recovery was much better represented by his appearance on the second occasion than the first.
Dr LL recorded at page 26 that his 2016 assessment provided further confirmation for the views which he expressed in his earlier report. He thought that was unfortunate because in essence it amounted to both parents being so unreliable and self-absorbed in relation to the children’s interests and needs that it was difficult to weigh up any of the allegations that they may make about the risk arising from the other parent and “one is left to rely on the children’s account and such corroborative material as exists.” In the 2016 report Dr LL wrote at page 27:
[Mr Bagheri] is seeking orders that the children live with him and spend time with their mother. In my view this is an unworkable outcome. The children are now so firmly aligned against their father that I do not see that there is any likelihood of this situation been turned around. [D] was at best ambivalent about his father when I first saw him and now he is absolutely resolute about not seeing his father any more. Indeed on his account he only saw his father for as long as he did because he felt that he had to accompany his sister to protect her. Were he to be ordered to live with his father I think it is likely that he and his mother would conspire for him to exit [Mr Bagheri’s] home with [E], perhaps behind a cloud of exaggerated or even false allegations.
In [E’s] case, I think that she still has some residual ambivalence about her situation and that in a more sympathetic environment, she could renew her time with her father, however in my view she has become so symptomatic in her anxious attachment to her mother that even the most empathic father would struggle to help her settle into his home, and I do not think that [Mr Bagheri] has that capacity.
Later in the report at page 27 Dr LL recorded:
It is difficult to assign a weight to the children’s allegations about their father because their mother has been so relentless and self-serving, however it does not exclude the possibility there is more than a kernel of truth to some of them.
And later at page 28:
I took the unusual step in my first report of providing a preamble to my conclusions in which I raised a number of serious issues about the integrity and credibility of the parents. As I have indicated above, I feel that this current assessment has only confirmed those views and in particular, that in this Family Court battle, the children’s interest play little part for either parent.
Dr LL recommended that:
In my view the least harmful solution for the children is probably if visits to their father cease at this point if that is what they wish. I would recommend that [Ms Goudarzi] carries sole parenting responsibility, but that the orders contain no barriers whatsoever to the children contacting their father if they wish, and also that [Mr Bagheri] is permitted to receive a copy of each of the children’s school reports and any medical information which exceeds the relevant threshold.
In Dr LL’s report dated 3 August 2017, he stated that his view of the father’s parenting capacity remains unchanged.
In his 2017 report Dr LL said that the father had addressed the issue of his presentation in August 2016 with him, saying that the discrepancy between the two observations resulted from the fact that he had not taken his prescribed opiate pain relief medications for several days prior to the August 2016 consultation because he had found that those medications affected his alertness and he wanted to be alert for that assessment. He told Dr LL that he had resumed those medications after the consultation and that explained his relative lack of discomfort when Dr LL saw him a few days later. Dr LL reported that his review of the father’s medical reports and Medicare records corroborated the father’s explanation. However, Dr LL reported in the third report that he nevertheless considered that the father presented with an emotional overlay which gave the appearance that he was trying to evoke sympathy when Dr LL saw him at the 2 August 2016 consultation. Dr LL also reported feeling that the father somewhat overstated his shock when he read subpoenaed material.
In relation to the father’s proposals in 2017 in his report at page 24 Dr LL reported:
The second option that [Mr Bagheri] is considering is whether [E] could live with him, perhaps away from Sydney somewhere like Canberra where he has family. This would clearly run counter to E’s wishes. As I indicated in my second report, I think that she has some fear of her father and a deep anxiety over separation from her mother to be with him, undoubtedly amplified by her mother. I am of the view that she would enter into such a change with a great deal of apprehension and again bearing in mind that she has only just come out of quite a long period of quite intense and clinical anxiety, it is my view that there is a significant risk of relapse and that her father would not be able to assist her through this, nor would counselling have a great deal of impact.
Another matter which would arise under this change would be that she would be separated from [D]. As I indicated in my first report, I felt that one thing that had kept the children in a reasonably stable frame of mind when I first saw them after their parents had been acrimoniously still living together despite being separated under the same roof was the support that they got from their relationship, which was probably most sustaining from [E] because of her age. A move to her father’s home would separate her from her brother who has probably been the most consistently effective emotional life raft that she has had over the years despite [D] himself being quite troubled at times.
Dr LL went on at page 25:
Overall I am concerned that the children’s relationship with their father is unlikely to be retrievable at this particular juncture, partly because the alienation that has been happening has been quite effective, and partly because I am not sure that [Mr Bagheri] has the same capability that some parents might to be able to work towards overcoming this. Although he presents himself as an intuitive and empathic person, I was not persuaded by his presentation and the materials that I have seen over the years that this is a fully accurate picture of his character. I would note however that he has been significantly disadvantaged in terms of having had inadequate opportunity to be the best parent he could be with the children since separation due to undermining by [Ms Goudarzi].
Understandably, there was significant focus on the oral evidence of Dr LL. Under questioning by learned counsel for the ICL he confirmed the concerns expressed consistently in his written reports.
After agreeing to assume certain propositions by learned senior counsel for the father, Dr LL agreed that a change of E’s residence to the father would be a more appropriate step in those circumstances. The propositions were to the effect:
·there is no evidence of an unacceptable risk with the father;
·that it is in E’s best interests to have a relationship with her father;
·that the mother’s assertions are without factual foundation;
·that both children have been affected by the mother’s views;
·that the mother’s views and the extent to which those views have been imparted to the children have had a significant effect upon the relationship between the children and the father;
·that the mother’s views about the father are unlikely to change;
·that the extent to which those views have been imparted to the children, the mother cannot protect the children from those views;
·that those views are damaging to the children; and
·that there is no rational basis for the allegations that Justice Cleary, the lawyers, Mr F, strata managers and the trustee in bankruptcy have acted corruptly or conspired against her.
The thrust of the mother’s cross-examination of Dr LL was to the effect that he should accept that the mother is not paranoid, that the father is a sociopath and that the mother’s grievances against those involved in the proceedings, her bankruptcy and eviction, are justified. Dr LL allowed that if all of the mother’s allegations were found to be true then she should not be seen as paranoid. In relation to the suggestion that she has alienated the children from the father the mother put to Dr LL that Parental Alienation Syndrome has been discredited. Dr LL agreed, responding to the effect:
You’ve completely misunderstood it. What has been debunked is the idea that there is this neat box that’s called Parental Alienation Syndrome. It’s quite clear…there is absolutely no doubt at all that children can lose a relationship with a parent because of the actions of the other parent. Now, that can happen in a variety of ways. It is in my experience mostly it is not a deliberate thing by the parent that the children live with in the sense that they say right I’m going to make these children hate their father. In my experience generally what happens is that there is a parent who is very distrustful of the other parent…
Unfortunately the outcome of Dr LL’s evidence does not leave a clear path forward. Even if I was able to make all of the findings that were put to Dr LL by senior counsel for the father, it leaves the issue of whether the father’s proposal is practicable. There is the question of whether E could be separated from contact or communication with her mother for three months. One could imagine a number of ways that the child herself could frustrate such an arrangement. She could borrow a mobile phone from a school friend and ring her mother, for example. As Dr LL suggested, the Court does not have jurisdiction to make an effective order to isolate E from her brother for a day, let alone for three months. Assuming those problems could be resolved there is the question of whether the father has the capacity to support E through an immediate transition to his care and a peremptory, three month isolation from her mother and brother. What would be the ultimate impact on E if she cannot be adequately supported through that transition and separation from her mother and brother? Dr LL was not confident about the father’s capacity. In that regard, Dr LL said words to the effect:
One of the problems is when you’ve got a question mark over someone’s credibility, that makes it really hard… generally one can sort of figure out where reality lies and I’ve just found that particularly challenging with [Mr Bagheri], unusually challenging. I mean I think for instance that he was significantly more involved with the children than the mother is prepared to admit. But as I say, as to whether or not he’s got the capacity to cope with a very difficult situation with his daughter, I just, I’m not saying he doesn’t have it but I just don’t have the degree of confidence that he does that I’ve had in other cases – that’s not very helpful is it?
On what basis could I have the confidence necessary to turn E’s world upside down for an uncertain outcome?
The father has lived with the children for periods of their lives and they most recently regularly spent overnight time with him between April 2013 and December 2015. Despite that opportunity, sadly, he does not have a workable relationship with either of the children. The orders sought by the father changed during the trial. At the commencement of the trial he sought orders that called for a graduated and professionally supported reintroduction to E. That was a recognition by him that his current relationship with her would not be sufficient by itself to sustain a restoration of time between them, let alone the change of residence that he now proposes.
Of course there are also risks with the mother’s proposal. Dr LL was asked in cross-examination about E taking on the mother’s distorted world view. He said something to the effect:
I would have thought for a period of time anyway. As I said before, at some point she’ll probably start to evaluate whether or not they are true because her mother will turn some of her distrust on her … and overreact as she has already with [D], although [D] is a kid that sort of fights back more whereas [E] isn’t but I think that would probably be what would happen. At some point the scales would probably fall from her eyes but it could be quite difficult if it doesn’t.
I should record that I am confident that many, if not all, of the mother’s allegations are not soundly based.
(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
In the expert report dated 3 August 2017 at page 19 Dr LL said that since D has stopped spending time with his father there has been an appreciable up-shift in his marks at school and an absence of specific behavioural problems. Dr LL felt that overall D has been in a better psychological state recently. He says that there are at least two explanations for this:
The first is that he is feeling happier and more composed without his father in his life. The second is a less specific factor which is that since there are no more visits, he is not exposed to a conflict of loyalty or tensions between his parents nearly as much. It is difficult to ascertain which of these factors is the more important, as I think they probably both play a part.
At page 20 of his report dated 3 August 2017 Dr LL made the following observations in relation to E’s psychological state:
When I last saw [E], I reviewed quite a bit of evidence of her experiencing considerable clinical levels of anxiety for which she had received counselling. I also commented that I thought these symptoms would continue if she continued to see her father, but that they were unlikely to respond substantially to therapy under those circumstances. Since then, there seems to have been a significant settling in her level of anxiety and she presented as much more composed and confident…Again as with [D], I think the same two factors are at play…
(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This criterion is not applicable in this case.
(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
These matters have been addressed under other criteria.
(3)(j) any family violence involving the child or a member of the child’s family;
I am satisfied that the mother has acted to isolate the children from their father.
(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
There is no current family violence order.
(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Nothing comes to attention here.
(3)(m) any other fact or circumstance that the court thinks is relevant.
Nothing comes to attention here.
Parental responsibility
Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
If no order is made in respect of parental responsibility then the position as to the parents of a child is as follows as required by s 61C of the Act:
(1)Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2)Subsection (1) has effect despite any changes in the nature of the relationships of the child‘s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re‑marrying.
(3)Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution of parental responsibility for a child.
The mother seeks an order for shared parental responsibility for E and the father seeks sole parental responsibility for her.
Section 61DA of the Act requires a presumption of equal shared parental responsibility when making parenting orders:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Discussion
In the context of this case, s 61DA requires that I apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them unless there are reasonable grounds to believe that the father or the mother have abused them or engaged in family violence. There are reasonable grounds to believe that the mother has set out to prevent the children from keeping connections with their father. Therefore the presumption does not apply.
Where the presumption does not apply, s 65D(1) of the Act requires the Court to make such order with respect to parental responsibility, and/or time to be spent with each of the parties as it “thinks proper”. What is proper is what is in the best interest of the child - determined by reference to s 60CC of the Act.
The parties do not have a good relationship and their communication is poor. However, it is the mother’s application that the parents should continue to share parental responsibility. The father seeks sole responsibility for E. The ICL supports an order for the parents to have equal shared parental responsibility for E.
It is logical that the parent with whom the children mostly live should have parental responsibility. In this case that will be the mother. The question is whether it will be in the best interests of E for the father to continue to share parental responsibility.
The father’s relationship with his children is going to rest on two fragile bases. The first, and most fragile, is the mother’s statements to the effect that she will support those relationships and that she has in contemplation that those relationships will be revived in the future. The second basis is that, with the immediate pressure of orders for living arrangements being relieved, whether with their mother’s support or despite her opposition, at some time in the future the children or one of them will seek out a meaningful relationship with their father. In that context, it is important for the father to retain the parental responsibility aspect of his parenting role.
I will make an order that the parents have equal shared parental responsibility for E. The parents will retain shared parental responsibility for D.
Conclusion
The presumption that the parents having equal shared parental responsibility would be in D and E’s best interests, does not apply. The mother seeks such an order. Despite the paucity of the parents’ relationship I will leave that order in place. I will however impose conditions and restrictions that may assist to give effect to that arrangement.
Living Arrangements
In that the Court will make an order that the parties have equal shared parental responsibility, it is necessary to consider ordering that the children spend equal time with the parents or substantial and significant time with each of them.
Neither of the parents seeks any specific orders about D. The father seeks an equal time arrangement for E but only after she has lived with him and spent no time with the mother for a period of three months.
The recommendations in the report of Dr LL dated 3 August 2017 at page 25 were as follows:
Overall I am concerned that the children’s relationship with their father is unlikely to be retrievable at this particular juncture, partly because the alienation that has been happening has been quite effective, and partly because I am not sure that [Mr Bagheri] has the same capability that some parents might to be able to work towards overcoming this…
…
As I have indicated previously, I have significant reservations about both parents and I think that this is one of those unfortunate situations where one is looking at the least worst option in relation to [E]. I have outlined a number of concerns that I have about both parents and I am reluctant to express a firm view about what should happen in this matter.
In his oral evidence at trial Dr LL made the concessions that I have identified but did not give unqualified support to the proposal of either parent.
Conclusion
It was submitted on behalf of the ICL that the orders proposed on his behalf were the least, worst option. I think that is right. This family has been mired in conflict for much of the last 10 years. Consent orders made in 2013 establishing a shared care arrangement were repudiated by the mother soon after they were made and fresh proceedings were commenced by her in 2015. The worst of the mother’s allegations against the father are unfounded. There is no justification for the current estrangement between the children and their father. Like the mother, he is very intelligent and despite many hurdles put in his way, he has persistently pursued his desire for a meaningful relationship with his children. Like the mother, the father has much to offer his children. For the time being however, it is not practicable for E to have a meaningful relationship with both her parents.
The mechanism proposed by the father to restore E’s relationship with him involves completely isolating her from her mother and her brother. That may not be possible and in any event, it would be distressing for E. Importantly, it might not succeed.
I will make orders in the form of the orders proposed by the ICL.
I will also make some of the injunctions sought by the father, namely that the mother be restrained from:
(a)making derogatory remarks about the father or members of the father’s family to the children or in the presence or hearing of the children or permitting any other person to do so;
(b)discussing these proceedings with the children or within the hearing of the children or showing the children any document connected with these proceedings or permitting any other person to do so;
And that the parties be restrained from:
(a)relocating the residence of the children from the Sydney metropolitan area without the prior written consent of the other party; and
(b)removing the children from the Commonwealth of Australia without the prior written consent of the other party or an order of this Court.
Similarly, some of the orders proposed on behalf of the father as to the passage of information about the children would also be appropriate. They will initially operate mainly on the mother but will be expressed in mutual terms. They will be:
(a)that each party shall notify the other of any subsequent change to his or her residential address within seven days of any such change.
(b)that each party shall provide to the other party the names, addresses and telephone numbers of all medical professionals who may treat the children and authorise each of them in writing to provide copies of any test results, letters of referrals, reports and letters received from other medical professionals to the other party and authorise them to discuss any aspect of the children’s health with the other party.
(c)that each party shall keep the other party informed via email of any major medical issues involving the children including any details relating to the children’s attendance upon a medical practitioner and any treatment prescribed.
(d)that each party inform the other as soon as reasonably practicable and in any event within 24 hours of any of the following which occurs while the children are in their care:
(i)serious medical problems or illnesses suffered by the children;
(ii)medication that has been prescribed for the children that needs to be taken whilst the children are in the care of the other party; and
(iii)other significant matters relevant to the welfare of the children.
(e)that, save in the case of emergency or urgent situations, the parents must communicate with each other in relation to the children, by use of email and/or SMS.
(f)that each party shall notify the other of any subsequent change to their nominated email address and mobile telephone number for such communication within 24 hours of any change to same thereafter.
(g)that each party shall notify the other party of the address/es and telephone number/s of the place/s where the children will be staying during holidays spent away from the other party’s residence not later than 48 hours prior to the commencement of the school holidays or as soon as reasonably practicable.
It was foreshadowed on 2 March 2018, that the mother would bring E to Court on the day judgment was published. Given the parenting arrangement that I intend to order, it is not necessary to have the orders explained to E as soon as they are made. In any event, bringing E to Court on the day judgment is published may unnecessarily upset her. The ICL proposes that the mother facilitate E attending on her representative within 28 days after judgment and that is what I will order. An order will be made for a passport to issue for D and for it to be retained by him.
Leave will be granted to the parties to bring the matter back before me within 28 days, or such further time on which the parties may agree, in relation to the wording of the orders.
I certify that the preceding one hundred and eighty-two (182) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 13 April 2018.
Associate:
Date: 13 April 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Natural Justice
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Injunction
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Remedies
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