GULIZAR & GULIZAR

FAMILY COURT OF AUSTRALIA

GULIZAR & GULIZAR

[2019] FamCA 419

FAMILY LAW – CHILDREN – Parental responsibility and with whom the children live – Where there are four children of various ages – Where the father seeks that he and the mother have equal shared parental responsibility – Where the mother seeks sole parental responsibility – Where the parents have poor communication – Where it is not practicable for the parties to have equal shared parental responsibility – Where it is in the best interests of the children for the mother to have sole parental responsibility – Order made - With whom the children live – Where the father seeks that the two younger children live with him – Where there are serious allegations of family violence made against the father by all of the children – Where the Independent Children’s Lawyer and the Department of Family and Community Services agree that the two younger children should live with the mother – Order made for all of the children to live with the mother – Orders made for the elder two children to communicate or spend time with their father only in accordance with their wishes – Orders made for the two younger children to communicate or spend time with the father under such conditions as agreed by the parents in writing.

FAMILY LAW – COSTS – Where the Independent Children’s Lawyer sought an order for costs from each party in equal shares – Where the mother did not consent to the orders insofar as they were sought against her – Where the father did not oppose the application for costs insofar as they were sought against him – Where there was little evidence before the Court about the mother’s financial circumstances – Where the mother has been out of paid work for many years – Order made for the father to pay half of the costs of the Independent Children’s Lawyer – No order for costs made against the mother.

Family Law Act 1975 (Cth) ss 60CC, 61B, 61C, 61DA, 65D, 65DAA, 65DAC

McCall & Clark (2009) FLC 93-405

Champness & Hanson (2009) FLC 93-407

APPLICANT:

Mr Gulizar

RESPONDENT:

Ms Gulizar

INTERVENOR:

Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER:

S Davitt Family Lawyers

FILE NUMBER:

SYC

5452

2015

DATE DELIVERED:

4 July 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

18 – 22 & 25 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Othen

SOLICITOR FOR THE APPLICANT:

Newnhams Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Livingstone

SOLICITOR FOR THE RESPONDENT:

Armstrong Legal

COUNSEL FOR THE INTERVENOR:

Mr Moore

SOLICITOR FOR THE INTERVENOR:

Crown Solicitor’s Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

S Davitt Family Lawyers

Orders

All previous orders made relating to parenting are discharged.
The mother shall have sole parental responsibility for the children of the marriage namely:
(a)W born on … 2005 (“W”)
(b)X born on … 2007 (“X”)
(c)Y born on … 2009 (“Y”)
(d)Z born on … 2011 (“Z”)
(“the children”)
Except as otherwise provided in these Orders the children shall live with the mother.
Should W and/or X wish to communicate with or spend time with the father, each parent shall do all things necessary on his/her part to facilitate such communication or time.
There shall be time and/or communication between the father and Y and/or Z as the parents may agree and that time or communication shall be under such conditions as the parents may agree in writing.
The father is at liberty to obtain information from the children’s schools that ordinarily is provided to parents.
The father is at liberty to send cards and gifts to the children.
The father shall not approach within 200 metres of the children’s residence or schools, or attend any school function, religious event or extra curricular activity in which one of the children is engaged, unless expressly invited by the mother to do so.
Neither parent shall:
(a)strike any of the children;
(b)speak critically or discourteously about the other parent or any member of the other parent’s family, in the presence or hearing of any of the children. Nor shall they permit any other person in his/her household or family to do so.
The parents shall keep each other advised of their email addresses and telephone contact numbers.
Within six months after the date of these Orders or such further time as is agreed between the father and Legal Aid NSW the father shall pay to Legal Aid NSW the sum of $11,727 being one half of the costs of the Independent Children’s Lawyer.
Otherwise the application of the Independent Children’s Lawyer for costs is dismissed.
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 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 Gulizar & Gulizar 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: SYC 5452 of 2015

Mr Gulizar

Applicant

And

Ms Gulizar

Respondent

And

Department of Family and Community Services
Intervenor

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings about four children:
(b)W born … 2005 and aged 13 years at time of trial (“W”);
(c)X born … 2007 and aged 11 years at time of trial (“X”);
(d)Y born … 2009 and aged nine years at time of trial (“Y”); and
(e)Z born … 2011 and aged seven years at time of trial (“Z”).
Mr Gulizar (“the father”) and Ms Gulizar (“the mother”) are the parents of the children.
On 11 July 2018 the Department of Family and Community Services (“DFACS”) intervened in the proceedings.
The main disputes between the parents relate to the allocation of parental responsibility and the living arrangements for Y and Z. Ultimately I have decided that the mother should have sole parental responsibility for the children and that they should live with their mother (and their sisters) and that the father should have no time with them. What follows are the reasons for the orders set out at the commencement of this judgment.

Applications

The father sought orders as set out in a Minute of Orders[1] handed up on the last day of the hearing, as follows:
[1] Exhibit 22
1.That the parties have equal shared parental responsibility for the children of the marriage, namely, W born … 2005 (“W”), X born … 2007 (“X”), Y born … 2009 (“Y”) and Z born … 2011 (“Z”)(“the children”).
2.That, W and X:
(a)live with the mother and spend time with the father in accordance with their wishes, with the mother to do all acts and things in order to facilitate their wishes.
(b)That seven (7) days prior to; Father’s Day, W’s birthday, X’s birthday and the father’s birthday, the mother do all things to encourage the children to spend time with the father on each of these occasions, with the mother to advise the father of the wishes of the of the children and facilitate time, if it is in accordance with their wishes.
3.That, Y and Z:
(a)from the date of these Orders and for a period of two consecutive calendar months live with the father, with the father to facilitate telephone and facetime calls between Y and Z and the mother, W and X twice per week.
(b)At the expiration of two calendar months pursuant to Order 3(a) above, Y and Z live with the father and spend supervised time with the mother as agreed but failing agreement, in accordance with the recommendations of Ms C or such other psychologist as the parties may agree in writing for a period of not less than twelve (12) months, with all time pursuant to these Orders as provided for in Orders 4, 6 and 7 to be supervised until the expiration of not less than 12 months.
(c)At the expiration of not less than 12 months or later if upon the recommendation of Ms C or such other psychologist as the parties may agree in writing, Y and Z live with the father and spend time with the mother as follows:
(i)In week one from after school Friday or 3.00 pm in the event of a non-school day until the commencement of school or 10.00am in the event of a non-school day on Monday
(ii) For one half of all short school holiday periods as agreed in writing, or failing written agreement, the first half of each school holiday period falling in years ending in an odd number and the 2^nd half of all period falling in years ending in an even number
(iii) For the first half in odd numbered years and the second half in even numbered years
(d)That Y and Z be enrolled in and complete their primary education at D Public School.
(e)That in the alternative to 3(a) – 3(d) above, Z and Y with the mother and spend time with the father as follow:
During school terms:
(i)In the first week following the commencement of school term, and each alternate week thereafter, from after school Friday or 3.00pm in the event of a non-school day until the commencement of school on Monday
(ii)That is the Monday referred to in (i) above is a public holiday, the father’s time be extended until the commencement of school Tuesday.
(iii)In week 2 from after school until 8pm on Thursday.
During school holidays
(iv)For one half of all short school holiday periods as agreed in writing, or failing written agreement, the first half of each school holiday period falling in years ending in an odd number and the 2^nd half of all periods in years ending in an even number.
(v)During the Christmas school holiday periods for the first half in even numbered years and the second half in odd numbered years
4. Notwithstanding Order 3 above, Z and Y shall spend time on each of their respective birthdays (together) on the particular child’s birthday with the parent with whom they are not residing with at that time by written agreement of failing written agreement as follows:
(a)In the event that it is a school day, then from after school until 7pm;
(b)In the event that it is a non-school day, then from 10.00am until 1.00pm.
5. Notwithstanding Order 3 above, Z and Y shall spend time with the father as follows:
(a) On Father’s Day in the event that the children are not residing with him on that day by written agreement, or failing written agreement, from 10.00am until 7.00pm.
(b)On the father’s birthday, by written agreement or failing written agreement as follows:
(i)In the event that it is a school day, then from after school until 7pm;
(ii)In the event that it is a non-school day, then from 10.00am until 7pm.
6.Notwithstanding Order 3 above, Z and Y shall spend time with each of the parents during the religious period of Eid Al-Fitr and Eid Al-Adha as follows:
(a)With the father from 10.00a until 7pm on Eid Al-Fitr and Eid Al-Adha in odd numbered years;
(b)With the mother from 10.00am until 7pm on Eid Al-Fitr and Eid Al-Adha in even numbered years.
7.Notwithstanding Order 3 above, Z and Y shall spend time with the mother as follows:
(a)On Mother’s Day in the event that the children are not residing with her on that day by written agreement, or failing written agreement, from 10.00am until 7.00pm.
(b)On the mother’s birthday, by written agreement, or failing written agreement as follows:
(i)In the event that it is a school day, then from after school until 7pm;
(ii)In the event that it is a non-school day, then from 10.00am until 7pm.
8.That for the purposes of facilitating changeovers, when not at school, changeover is to be effected by the mother collecting and returning the children to the father’s residence.
9.That for the purposes of facilitating changeover when the time commences at the conclusion of school/concludes at the commencement of school, the parent who has the care of the children pursuant to the Orders is responsible for causing the children to be collected from their respective school at the commencement of their time and returning them to their respective school at the conclusion of their time.
10.That in the event that either parent is unable to facilitate changeover, then an immediate family member known to the children shall be permitted to facilitate changeover.
11.That each party shall notify the other party, in writing, as soon as practicable of any medical issues involving the children whilst in their respective care.
12.That upon the commencement of time in accordance with Orders 3(c) or 3(e), the father be at liberty to telephone the children when they are with the mother between 6 – 7pm each evening and the father shall do all things to facilitate such daily communication.
13.That upon the commencement of time in accordance with Orders 3(c) or 3(e), the mother be at liberty to telephone the children when they are with the father between 6 – 7pm each evening and the mother shall do all things to facilitate such daily communication.
14.In the event that any of the children express a wish to telephone the other parent the parent with whom they are living shall facilitate that request.
15.That for the purpose of the school holiday time periods referred to herein, the first day of holidays shall be calculated as commencing at 10.00am on the day following the last day of term and shall conclude at 9.00am on the day that the children are first required to attend school (eg they may include a pupil free day)
16.That both parties are hereby restrained by injunction from speaking to the children of to any other person in the child’s hearing in derogatory terms about the other or a member of the other party’s family or household and shall immediately remove them from the presence or hearing of any third party who does so
17.That the parties provide all necessary authorities for each parent to be able to obtain copies of all records pertaining the children in respect of their school and health.
18.That both parents be permitted to attend all events at the children’s schools and extra-curricular activities that parents would usually attend including but not limited to; sports days, concerts, open days, assemblies, awards nights, graduations and the like.
19.The all prior parenting Orders be discharged.
20.That the mother pay the father’s costs of and incidental to these proceedings, inclusive of counsels fees.
At the conclusion of his oral submissions the mother’s counsel submitted that the orders proposed by the Independent Children’s Lawyer (“ICL”) are appropriate. The orders set out in the mother’s case outline were not formally withdrawn but I understood that the mother adopted the ICL’s proposals.
The ICL’s proposals were set out in minute of orders[2] submitted on the final day of the hearing as follows:
[2] Exhibit 23
1.All previous orders, including for the appointment of the Independent Children’s Lawyer, are hereby discharged.
2.The mother shall have sole parental responsibility for the children W, born … 2005, X, born … 2007, Y, born … 2009 and Z, born … 2011.
3.The mother shall promptly advise the father of any long-term parenting decision she proposes to make about a child, including but not limited to:
(a)a proposed change of school;
(b)an elective medical or dental procedure requiring general anaesthetic;
(c)a proposed change of residence
(d)a proposal for the child to travel outside Australia;
and the mother shall give due consideration to any views expressed to her by the father with respect to such decisions.
4.The children shall live with the mother.
5.Should W and/or X wish to communicate with or spend time with the father, each parent shall do all things necessary on his/her part to facilitate such communication or time.
6.The father shall:
(a)Complete the Taking Responsibility programme provided by Unifam; and
(b)Complete a programme in anger management as recommended by Unifam; and
(c)Engage with a psychologist experienced in parenting disputes to obtain advice and assistance about parenting, and provide that psychologist with a copy of the judgment and orders of the court.
7.After the father has provided the mother with confirmation that he has complied with order 6a. and 6b. and has engaged with a psychologist for not less than six months pursuant to order 6c,, the parents may by agreement make arrangements for Y and/or Z to spend time with the father and/or otherwise communicate with him.
8.The father shall be at liberty to obtain information from the children’s schools that ordinarily is provided to parents.
9.The father shall be at liberty to send cards and gifts to the children.
10.The father shall not approach within 200 metres of the children’s residence or schools, or attend any school function, religious event or extra curricular activity in which a child is engaged, unless expressly invited by the mother to do so.
11.Neither parent shall:
(a)Use excessive force or any implement to discipline a child;
(b)in the children’s presence or within their hearing, speak critically or discourteously about the other parent or any member of the other parent’s family, or permit any other person in his/her household or family to do so.
12.The parents shall keep each other advised of their email addresses and telephone contact numbers.
DFACS too supported the orders proposed by the ICL.
The ICL also sought orders for costs set out in minute of orders[3] submitted on the final day of the hearing as follows:
1.The parents shall pay to the Legal Aid Commission of New South Wales (‘The Commission’) a sum equal to the cost to the Commission of providing independent legal representation for the children W, born … 2005, X, born … 2007, Y, born … 2009 and Z, born … 2011, calculated in accordance with the relevant Legal Aid scale fees, less any amount(s) already paid by the parents.
2.The costs referred to in Order 1 shall be paid within six months of the date of these orders, unless the parents and the Commission otherwise agree.
3.The parents shall contribute equally to the costs calculated in accordance with order 1, or otherwise in such proportion as the court considers just.
[3] Exhibit 24
Attached to the orders sought was a memorandum of fees setting out the itemised costs incurred by the ICL over the course of the proceedings up to and including the hearing. The total of the fees including GST was $23,454, with $11,727 claimed against each parent.

Written Evidence

The father relied on:
·Second Further Amended Initiating Application filed 1 March 2019;
·affidavit of the father filed 1 March 2019;
·affidavit of Ms B filed 1 March 2019;
·affidavit of Ms A filed 1 March 2019; and
·affidavit of Ms E filed 1 March 2019.

The mother relied on:
·Further Amended Response to Initiating Application filed 21 December 2018;
·Notice of Child Abuse, Family Violence or Risk of Family Violence filed 21 December 2018; and
·affidavit of the mother filed 21 December 2018.
DFACS relied on:
·affidavit of Ms F sworn 6 July 2018;
·affidavit of Ms F sworn 21 December 2018.
·affidavit of Ms G affirmed 18 December 2018; and
It was agreed that the exclusionary rules of evidence usually not applied in parenting proceedings as a result of Division 12A of Part VII, would apply in relation to findings about the fact of the key allegations of abuse made against the father.

Expert Evidence

The following expert evidence was relied on:
(a)Family Report of Mr H dated 5 July 2016; and
(b)Single Expert Report of Ms J dated 10 July 2018.

The Hearing

The hearing commenced on 18 March 2019. The parents were both represented by counsel as were DFACS and the ICL. The hearing came at the end of four years of litigation and a highly conflictive separation. Nevertheless the parents appeared to navigate the necessary unpleasantness of a contested trial with good grace and patience. I have no doubt that they were assisted in that by the sensitive way in which counsel went about their tasks. Without shrinking from difficult issues, counsel efficiently discharged their duties, including of course, cooperating with the bench. I was greatly assisted by their submissions.
The trial was fixed for eight days but it concluded on 25 March 2019. On 25 March 2019 for reasons briefly given at that time, orders were made to the following effect:
1.That the orders made on 11 July 2018 and 6 September 2018 insofar as they provide for the father to spend time with the children Y born … 2009 and Z born on … 2011 be stayed pending further order.
2.By consent, in the event that either of those children express to the mother a desire to communicate with the father by telephone the mother shall facilitate that communication.
3.Otherwise judgment is reserved.

Short History

The father was born on … 1970. As at the date of the hearing he was 49 years of age. The mother was born on … 1971. As at the date of the hearing she was 47 years of age. The parents met in the 1990s, were married and commenced living together on … 2002 and separated on a final basis on 1 June 2014. There are four children of the marriage: W, X, Y and Z.

Credibility

There are issues that fall to be determined largely on the basis of the oral evidence of witnesses, without the benefit of clarifying independent and objective evidence. Therefore it is necessary to say something about the credit of the witnesses.
The father was not a good witness. He gave inconsistent evidence on some issues and did so within the space of a few questions. It was necessary to warn him during cross-examination about the importance of his answers. That said, I did not detect any intention by the father to mislead the Court. In my opinion, many of the matters about which he was successfully challenged in cross-examination were matters of perception rather than credit. For example, the husband made few if any concessions about his own conduct despite independent evidence of angry outbursts and inappropriate behaviour. I accept that the husband genuinely did not see a problem with his behaviours.
Ms B is the father’s sister. She provided supportive evidence for the father but she is not an independent witness. She is ill-disposed to the mother. Indeed, there were AVO proceedings between them. She was not in a position to give probative evidence in the proceedings.
Ms A is the paternal grandmother. English is not her first language and she belatedly identified some inaccuracies in her affidavit. It became apparent during cross-examination that her observations of the parenting of the mother and father were not always fairly reflected in her affidavit. For example, although not mentioned in her affidavit, as well as the mother, she has had cause to criticise her son for his treatment of the children. There were differences in the evidence of the paternal grandmother and the father. The father said that physical discipline of children is acceptable in his culture. His mother rejected the suggestion that she or her husband had used such measures. Again some of those differences may be more matters of perception rather than matters of reliability. That said, the paternal grandmother showed herself to be independent of her son and I found her to be a generally reliable witness.
Ms E is a supportive friend of the father but she is not in a position to give probative or independent evidence that is relevant to the matters in issue in the proceedings.
The mother was asked whether she believed the various disclosures made by her daughters. She said that she did believe them but she also said that she accepted that some of the allegations made against the father were not true. It is my judgment that those propositions can co-exist. It was my impression that the mother sought to support her daughters while at the same time accepting that their disclosures may not always be literally true. To my observation the mother sought to give reliable evidence.
Ms F and Ms G gave evidence as officers of DFACS and their evidence was not successfully challenged.
Ms J was the single expert clinical psychologist and her credit was not challenged.

Background Facts

In the 1990s the parents met while working at Suburb K.
In around 2001 they commenced their relationship and on … 2002 they were married and began living together.
In around … 2004 the father’s sister, Ms B, moved in with the parents for a period of time.
In … 2004 the parents travelled to Country U for four weeks.
W was born on … 2005. It is the mother’s evidence that soon after W’s birth she and the father had a verbal argument and she left the home. She says that on her way out, while she was holding W, the father struck her on her back and pulled a hall stand down on top of her. The mother and W stayed overnight with the mother’s parents.
It is the mother’s evidence that in … 2006 the father punched her in the stomach after she told him that she was pregnant. The following day the mother attended Suburb V Hospital with the father and sadly, was told that she had suffered a miscarriage.
X was born on … 2007.
In … 2008 the mother was made redundant and ceased her employment.
Y was born on … 2009.
On … 2009 the father and W travelled to Country U for four weeks.
Z was born on … 2011.
It is the mother’s evidence that in July 2013 the father pushed her in the chest and spat in her face in front of the children. It is her evidence that she then moved towards the phone but the father grabbed the phone and threw it at her. The mother called the police.
In about … 2013 the father travelled to Country AA to set up a business with a friend, Mr M. The father was away for about three to five weeks.
In … 2014 the mother was admitted to Suburb V Hospital Emergency due to abdominal pain.
On … 2014 the mother discovered that she had chlamydia. The mother was informed that her fallopian tubes were full of lesions due to chlamydia and she would not be able to have any more children due to pelvic inflammatory disease. It is the mother’s evidence that she did not have any other sexual partners after she married the father.
It is the mother’s evidence that on 20 May 2014 the father pushed her in front of the children and she fell to the floor.
On … 2014 the mother was admitted to Suburb V Hospital Emergency as she was feverish and nauseous. It is the mother’s evidence that while in hospital she called the children and W and X said to her: “Please come home dad is angry and is hitting us”. The mother discharged herself from hospital on … 2014, against doctor’s orders.
It is the mother’s evidence that she asked the father for financial assistance for household expenses on 26 May 2014 and he refused.
On 27 May 2014 the mother was told by Dr N, gynaecologist, that the infection was still present in her reproductive system.
On 1 June 2014 the parents separated. It is the father’s evidence that this was their final separation.
On … 2014 the father went to Country AA.
On … 2014 the mother was admitted to Suburb V Hospital due to abdominal pain. She was discharged from hospital on … 2014.
On … 2014 the father returned from Country AA. It is the mother’s evidence that on 6 June 2014 she and the father agreed to stay together and try and work on their relationship.
It is the mother’s evidence that on 12 June 2014 the father cancelled her bank cards.
It is the mother’s evidence that the father left the former matrimonial home on 18 June 2014.
It is the mother’s evidence that on 3 July 2014, W, X and Y spent time with the father and that W said to her when she collected them: “dad hit me on the back of the head with a backpack from (sic) not saying goodbye to (grandmother)”.
It is the mother’s evidence that on 5 July 2014, W, X and Y went to movies with the father and when they arrived home X said to the mother: “Dad slapped me on my face and pulled my ears for dropping the popcorn”.
It is the mother’s evidence that on 9 July 2014, the mother collected X and Y from the father’s unit. She says that Y informed her that: “I was on the floor and Dad pulled me by my ear and dragged me by the hair across the room and then stomped on my stomach while I was still on the floor.”
It is the mother’s evidence that on 12 July 2014 Y said to her: “I am scared of my father because he slaps me on my face when I cry”. It is the mother’s evidence that she observed the father slap Y on the face on 13 July 2014 when she was crying.
On … 2014 the mother had carpal tunnel surgery. At around this time the father moved back into the former matrimonial home.
On … 2014 the father flew to Country AA.
On … 2014 the father arrived back in Sydney.
It is the mother’s evidence that on 22 October 2014 the father smacked Y on the face when she was reading a book and that on 24 October 2014 the father said to W: “I will cane you if you don’t sit with me and do your homework”.
On 29 October 2014 there was a disagreement between the parents and the father called the police. The police attended and the father was told it would be best if he left the former matrimonial home.
It is the mother’s evidence that on 22 November 2014 she saw the father punch X by the swimming pool. It is the mother’s evidence that later that day the father called her and said “I will bury you in the hole you came from”.
On 5 December 2014 the police conducted a welfare check on the children while in the mother’s care.
It is the mother’s evidence that on 27 July 2015 the paternal Aunt, Ms B, sent W a message saying: “[Country BB person] with a [Country U name] hahaha original or a wannabe”. It is Ms B’s evidence that her daughter sent that message.
On 22 October 2015 orders were made by Judge Monahan as follows:
1.All extant applications be adjourned to this Court on 2 December 2015 at 2.15pm for mention and interim hearing for no longer than two (2) hours (“the interim hearing”).
2.On or before 4:00pm on 27 November 2015 the solicitors for each party (or, if unrepresented, the parties themselves) and the Independent Children’s Lawyer forward to Chambers at … and each other party a brief case outline containing:
a)the precise orders sought;
b)a list of the documents to be relied upon;
c)if relevant, a brief chronology listing significant events;
d)the issues in dispute;
e)the main contentions (in light of the legislation); and
f)any relevant case law.
3.Pursuant to s.11F of the Family Law Act 1975, the parties attend a Child Dispute Conference with a Family Consultant in this Registry today, 22 October 2015 at 10:00am and, pursuant to s.11C of the Act, such conference be reportable.
4.Each party make, file and serve one brief updating affidavit on or before 4.00pm on 23 November 2015.
5.The Respondent make, file and serve an amended Response and Financial Statement by 4.00pm on 23 November 2015.
6.Pursuant to s.68L(2) of the Family Law Act1975, W born … 2002, X born … 2007, Y born … 2009, and Z born … 2011 (“the children”), be independently represented AND IT IS REQUESTED that Legal Aid Commission of New South Wales, PO Box K847 HAYMARKET, arrange such separate representation on an expedited basis and:
a.Upon appointment, the Independent Children’s Lawyer file a Notice of Address for Service;
b.Within 48 hours of notification of such appointment the solicitors for the respective parties (or the parties themselves if unrepresented):
i.provide to the Independent Children’s Lawyer copies of all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports;
ii.the parties forthwith complete all forms and questionnaires that the Independent Children’s Lawyer may require of them; and
c.The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the National Legal Aid website, and in particular carry out the tasks set out therein as applicable.
7.The Independent Children’s Lawyer have leave to issue up to 10 subpoenas.
8.Pursuant to s.11F of the Family Law Act 1975, the parties attend a Child Inclusive Child Dispute Conference with a Family Consultant in this Registry on 25 November 2015 at 9.00am and, pursuant to s.11C of the Act, such conference be reportable and the parties attend with the children of the relationship.
9.The parties attend a Conciliation Conference with a Registrar at the Sydney Registry on 31 March 2016 at 11.00am.
THE COURT ORDERS BY CONSENT AND PENDING FURTHER ORDER THAT:
10.There be interim parenting and property consent orders in terms of “By consent the Court orders” signed by the parties and their legal representatives, dated 22 October 2015 and as attached hereto, with the original placed on the Court file.
AND THE COURT DIRECTS THAT:
11.The parties and the legal representatives attend the Court at 1.15pm in order to have discussions with the Independent Children’s Lawyer prior to the potential interim hearing.
AND THE COURT NOTES THAT:
A.A party’s material will not be read until the Case Outline document has been received by Chambers in accordance with these directions.
B.The parties are expected to adhere strictly to the standards set out in the Notice to Litigants and Practitioners (issued in June 2011) regarding the conduct of interim parenting proceedings.
C.The interim hearing will be limited to the issue in dispute in relation to the circumstances and frequency of time to be spent between the children and the father.
D.The parties are having the benefit of a Child Inclusive Conference prior to the interim hearing so it is a matter for the Independent Children’s Lawyer whether any further interview with the children would be needed at this stage.
E.The Independent Children’s Lawyer should consider issuing subpoenas to the entities suggested by the Family Consultant in today’s Child Dispute Conference memorandum with the view for that material being before the Court in time for the interim hearing.
F.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
Contravention proceedings were commenced by the father against the mother in 2016 and on 22 December 2016 the mother was ordered to pay the costs of those proceedings. Also on 22 December 2016 the proceedings were transferred to this Court.
Orders were made on 27 April 2017 requiring the children to attend family therapy with Ms C. Orders were also made by consent that the parents have equal shared parental responsibility for the children, that Z and Y shall live with their mother and spend time with their father for half of the school holidays and during school term on a two week cycle as follows:
(a)in week 1 from after school Thursday to before school Monday; and
(b)in week 2 from after school Wednesday until before school Friday.
In 2017 the children attended the Keeping Contact program but only Y and Z completed all six sessions.
In August 2017 X reported having thoughts of suicide and self-harm. She was later found with a knife at school.
It is the mother’s evidence that on 26 February 2018 the following conversation took place between her, Z and Y:
[Z]:Saturday dad said to sit on my lap. I told dad I want to go the toilet because I didn’t want to sit on his lap so I ran to (grandma) in the kitchen. Dad grabbed me, put me on the couch and said I was in trouble. Dad was on top of me going up and down, humping. I told dad get off, I was screaming and crying but dad wouldn’t get off. Y walked in the lounge room.
[Y]:Yeah, he said do you see Z, if you don’t keep your promise that’s going to happen to you.
[Mother]:I understand you feel upset; did you tell you dad I don’t like it.
[Z]:He does rude things to me, like kiss me on the lips, slaps my bum and Y’s. He asks us to sit on his lap. I did tell dad I don’t like it but he laughs.
[Mother]:Did you tell (grandma)?
[Z]:She saw me crying and screaming but didn’t do anything, she was cooking and then she gave me an ice block because I was red in the face.
[Y]:I tell dad I’m a big girl and I don’t like sitting on his lap, but he tries to force me. Dad is always on his mobile looking at girls and sometimes you can see their breasts.
It is the mother’s evidence that on 2 March 2018 X said the following to her after spending time with the father:
[X]:I hate my life, I want to die, you don’t understand how I feel, nobody does. Mr Gulizar’s sister dropped CC to Suburb D School, CC was following me around the school. Mr Gulizar was sitting down on his phone. I was walking around the school oval and picked up a stick, CC said are you going to finger me? I told Mr Gulizar and he ignored me. So, I got fed up and sat on the seat with CC sat opposite me and put his hand on my rude part. I yelled at CC what are you doing? CC was laughing. I told my dad he was trying to touch my rude part and he said I don’t believe you X.[4]
[4] Mother’s affidavit paragraph 202.
On 9 March 2018 Y and Z were interviewed by the Joint Investigative Response Team (“JIRT”).
On 14 March 2018 JIRT spoke further with Y and Z at D Public School.
On 18 March 2018 the mother was charged with assaulting Ms B’s daughter, DD. On 13 June 2018 the charges were heard at the Downing Centre and the mother was found not guilty.
On 7 April 2018 JIRT advised that the outcome of their investigation was that the allegations were not substantiated.
Contact reports of 21 April 2018, 27 April 2018 and 5 May 2018 indicated that they were all unsuccessful as W and X did not leave the car to see their father. The mother had been able to have the children leave home with the supervisor on those days[5] but the children were vocal about their father’s mistreatment of them, not feeling safe with him and him not listening to their needs.
[5] Page 10 of Ms J’s report.
On 15 May 2018 all of the children were interviewed by DFACS caseworkers.
On 21 and 22 May 2018 Y and Z were interviewed by DFACS at the mother’s home.
On 8 June 2018 it is the mother’s evidence that W called her and said “the lady in the newsagency has called the police because she saw Mr Gulizar yelling at us”. The mother arrived at the Suburb D newsagency and it is her evidence she had the following conversation with Constable O, X and W:
[Constable O]: I have interviewed both girls and understand the situation is complex. We cannot not(sic) get involved as there are court orders in place.
[X]:My dad grabbed my jacket pulling me back and which chocked (sic) my neck. Dad then grabbed me by the arm and dragged me back as I was trying to get away from him as I don’t feel safe with him.
[W]:Dad told me to get on the bus go home but you have to leave X behind.
[Constable O]: I spoke with Mr Gulizar said the visits have been unsuccessful in the past.

On 28 June 2018 DFACS assumed care of the children and suspended the father’s time with them.
On 5 July 2018 the NSW Children’s Court discharged the assumption of care in light of the proceedings pending before this Court. However, a further Order of Assumption of Care Responsibility was issued that day.
On 6 July 2018 DFACS filed a Notice of Intervention in these proceedings.
Orders were made on 11 July 2018 by consent that the parents would have equal shared parental responsibility for the children, that the children would live with the mother and the two younger children, Y and Z, would spend supervised time with the father once per week.
On 16 October 2018 Y, Z and X commenced school at Suburb P Primary School.

The Expert Evidence

The single expert clinical psychologist was Ms J. Her qualifications include the following degrees:
Bachelor of Arts (Honours), Sydney University
Masters Degree in Clinical Psychology, Sydney University
Ms J is registered with the Psychology Board of Australia and has been a member of the Australian Psychological Society since 1998. She is an Authorised Clinician for the NSW Children’s Court Clinic and a member of the Association of Family and Conciliation Courts.
As well as several professional teaching roles, Ms J’s work experience includes private practice in Sydney and rural areas providing treatment for children and adults with clinical disorders or relationship issues. She has provided developmental, educational and neuropsychological medico-legal assessments for children and adults and has worked as a Regulation 7 Family Consultant providing reports for this Court and the Federal Circuit Court of Australia.
Ms J prepared a report in these proceedings dated 10 July 2018, reflecting the reading identified in the report and observations and opinions based on interviews with family members on 8 May 2018. On 17 May 2018 she also interviewed Ms C.

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 provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC 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 but if it does apply, it can be rebutted. If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time. 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 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 if relevant and assess the proposals in light of that provision;
(f)if s 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

The four children live with the mother at Suburb EE and spend no time with their father. The father lives with the paternal grandmother at Suburb D.

The Parties’ Proposals

The father seeks that the parents retain equal shared parental responsibility. The other parties seek that the mother have sole parental responsibility.
It is agreed that W and X will live with the mother and will only spend time with the father if they so wish.
The mother, DFACS and the ICL propose that the younger children live with the mother and spend no time with the father, until certain conditions are met.
The father proposes that the younger children live with him and that they spend no time with the mother for two months and then spend time with her in accordance with the recommendation of the expert. His alternate position is that the younger children continue to live with the mother and that time with him recommence.
The range of dispute on the key areas seems to be:
(a)whether parental responsibility is shared or exercised solely by the mother;
(b)with which of the parents Y and Z should live; and
(c)the time, if any, that Y and Z should spend with the parent they are not living with.

Section 60CC Considerations

Section 60CC specifies the following considerations:

Primary considerations:

Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(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 the child.[6] 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.
[6]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’.[7]
[7]Champness & Hanson (2009) FLC 93-407.
It would be of benefit to all of the children to have meaningful relationships with both parents. The children all have close and loving relationships with their mother. However, the parents have recognised that there are substantial problems with the relationship between the older girls and their father. Given their ages, their relationships with their father will increasingly be matters for them. As to the younger children, there are also substantial problems in their relationships with their father and the benefit of those relationships must be weighed against the other parenting considerations.

(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.
“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 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 not contended in these proceedings that the father has sexually abused any of the children on any occasion. Similarly, it is not contended that there is an unacceptable risk of him doing so in the future.
It is important in that context to note the mother’s evidence that on 26 February 2018 there was a conversation between her, Z and Y. The mother said during that conversation Z said that while at the home of the paternal grandmother, the father was on top of her “going up and down, humping”. Z said that she told the father to get off, and was screaming and crying. Therefore it is common ground that the reported notification was not reliable.
On 22 October 2015 a family consultant made a notification under s 67ZA[8] to the effect:
“Both parents allege that the other uses excessive force in disciplining the children. Mr Gulizar reported that both parents hit the children on the head, legs and hands. He said that they have both used wooden spoons to hit the children. Mr Gulizar alleged that Ms Gulizar has broken two wooden spoons hitting the children and that she has made X’s (sic) mouth bleed by squeezing it shut. Mr Gulizar reported that using physical punishment with children is acceptable in their culture, but that he feels that Ms Gulizar has used excessive force in the past to discipline them. Ms Gulizar reported that she has slapped to the children on the hand but denies ever having used excessive force with them. Ms Gulizar alleged that Mr Gulizar has punched, slapped and pulled the older three children by the hair.
[8] Exhibit 2
The paternal grandmother also made reference to the mother squeezing X’s mouth and causing it to bleed.
A USB was attached to the mother’s affidavit sworn 19 April 2017. Ms J says that the video recording on that USB depicts the mother telling the older children to go with the father and the father just walking on. An audio recording from W’s school records the father screaming at the child when she refused to go with him. W said “don’t touch me” and a bystander told him not to touch her.[9]
[9] Page 6 Ms J’s report
On 14 February 2018 Y’s teacher at D Public School advised the principal that Y disclosed to her that her dad has previously hit her. The teacher found a slip of paper which stated that Y would like to learn more about abuse and the teacher followed up on that with the child to ensure that she was okay. The school records[10] note that Y was nervous when approached and realised what the teacher was holding in her hand. Y said that she didn’t want to talk about it, she asked for the paper back several times but said that her father had previously hit her. She repeated her requests for the return of the paper and did not want to talk about it. The teacher gave the paper to Y and believes that Y threw it away.
[10] Exhibit 7
On 16 March 2018 there was an incident outside D Public School. The school records[11] show that at the end of the incident the mother took the children home. After that the father came up to the teacher and apologised for the teacher being involved in the incident. The father said that he grabbed his daughter’s arm because she was throwing bark at him and that he was just being a parent. The report records the father as saying “it’s not like I bashed her, it was forceful”. The father said that he would be there (presumably at the school) again in two weeks’ time doing the same thing, as he was not giving up on X.
[11] Exhibit 5
Y’s teacher reported[12] to the principal that on 6 April 2018 while she was on playground duty, Y disclosed to her that she had tried to kill herself. The teacher reported that the disclosure was made with a nervous laugh. Y told the teacher that she had tried to cut her wrists and gestured to her inside wrist in a cutting motion. The teacher asked her why she would do that and she said, because she was so sad. The teacher told Y not to think like that and asked her who she could talk to if she was feeling like that. Y told the teacher that she could talk to Mum and teachers, and the teacher reminded her of the Kids Helpline. Y said that her older sister speaks to Kids Helpline in her bedroom at home. Y also made other comments like, all of the knives have been hidden at home and that X had mentioned that if she did it there (her wrists) she would die as there’s lots of blood there. The teacher reported that Y’s behaviour on that day was of concern as she was very hyperactive and erratic during class time. She was very distracted and disruptive.
[12] Exhibit 6
The father told DFACS that he had struck the mother in response to her hitting him but that he had never hit her first[13]. The father conceded to Ms J that he had hit the mother but again, said that he did so only after the mother hit him[14]. He told Ms J that physical violence with the mother started with her hitting him on a few occasions after W was born. She punched and kicked him and was otherwise aggressive. He later hit, slapped and pushed the mother. The father concedes that he said to the mother: “Why do you keep taking the children to the hole you came from” meaning Suburb FF. However, the father denied to Ms J that he never threatened to bury the mother or that he said he hated the children.
[13] Page 6 Ms J’s report
[14] Page 14 Ms J’s report
The paternal grandmother told Ms J that she had seen both of the parents strike the children in the past, when they were stressed. They both used a wooden spoon to strike the children on the backside. That no longer occurs, according to the paternal grandmother, as she has implemented a rule to not use the wooden spoon.
The mother told Ms J that an ADVO was granted against the father for her protection in 2006 as he had threatened to bury her in a hole. The mother agrees that physical violence between the parents commenced when W was about four or five months of age. She says that on one occasion the father punched her in the stomach when she was pregnant and that she miscarried.
Ms J made the following summary in her report[15]:
“147.
… Furthermore the children have all provided consistent accounts of abuse to medical professionals, counsellors and school staff, causing an array of reports to DFACS over several years. Moreover, Mr Gulizar has acknowledged hitting, slapping and pushing Ms Gulizar to the Family Consultant, DFACS, and in the current assessment. His mother also confirmed that she witnessed him strike Ms Gulizar. He also acknowledged hitting them with his hand and implements in the current assessment and he acknowledged grabbing X’s arm at school recently. On both occasions, he minimised his actions by saying that he did not cause bleeding, bruises or bash them. Of even more concern is the audio-clip of Mr Gulizar screaming loudly at W at a school pick up. Together with the aforementioned, his actions raise serious concern about his capacity to regulate his emotions, to moderate his behaviour, and to have insight into the impact of his behaviour on others.”
148. In light of the above, it is unsurprising that the children have aligned themselves with Ms Gulizar, and that the older children have rejected Mr Gulizar. My opinion is that W and X were exposed to more years of family violence prior to the separation, that they have been concerned for their mothers well-being, that they (have) been more affected by Mr Gulizar’s behaviour. However, it seems that Z and Y are being increasingly affected by his behaviour, and that they too are positioning themselves away from Mr Gulizar, with just cause.
[15] Paragraph 147 of Ms J’s report
Ms J was asked about that last sentence in cross-examination. She confirmed that there were risks to the children of physical and emotional harm based on multiple disclosures and some concessions by the father. Ms J acknowledged that she is not a finder of fact. She said that the disclosures suggest either that the incidents actually happened or that the disclosing child was so emotionally distressed as to result in false allegations. It was put to Ms J that the reference to “false” allegations was a softening of the comments in her written report. Ms J did not agree and referred to her reference to the possibility of the disclosures being false in paragraph 145 of her report. She was asked about her conclusion that it was unlikely that the mother had caused the estrangement between a child and the father. She conceded that alienation could occur by neglect or by failures of the mother’s parenting but said that she had not seen indicators of such behaviour by the mother. It was put to Ms J that the defiance of W and X evidenced in the supervisors’ reports set out at pages 199 – 206 of the father’s affidavit could suggestion that the children had become aligned with the mother. Ms J responded that it suggest that the children rejected the father. She said that alignment with one parent did not necessarily mean rejection of the other.
Ms J reported that the children were at an appreciable risk of harm and that the main risk was of psychological harm. In relation to those risks she reported:
154 a ….
It is my opinion that the children are at appreciable risk of harm currently. The main risk is psychological harm, in that the children have been exposed to family violence between their parents during the relationship, and four years of high parental conflict since separation. Although there is some dispute between the parties about the specifics of the violence, both acknowledge that there was physical and verbal abuse. The children all recalled their father shouting at their mother, and a toxic home environment. Ms Gulizar’s account was consistent with severe coercive and controlling violence, and her account is that she was and remains scared of him. There was considerable support for her claim, in that she disclosed violence in counselling and to the police, even prior to the court proceedings, and at a time when she was considering remaining in the relationship. While Mr Gulizar portrayed Ms Gulizar as the instigator in the current interview, he readily acknowledged in the interview that he hit, slapped and pushed her. This was also confirmed in his affidavit material, his account to the family consultant and FaCS, and his mother stated that she saw Mr Gulizar strike Ms Gulizar on one occasion. It should be noted that there was and AVO in place, and that the police seemingly held concerns about Ms Gulizar’s safety. Additionally, the children have made numerous disclosures about Mr Gulizar physically, verbally and emotionally abusing them. FaCS have now intervened, presumably because they have formed the view that the children are in need of care and protection. I share their concerns about the children spending time with Mr Gulizar. In contrast, I do not have any concerns about the children being at risk of harm in Ms Gulizar’s care.

Therefore, it is an agreed fact that the children have been exposed to family violence.

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;

At interview with Ms J the children all described a close relationship with each other and their mother. Ms J considered that was reflective of the mother’s role as primary care-giver and primary attachment object for the children. Ms J reported that the behaviour of the children during her observation of them was consistent with their account at interview in that they appeared at ease and secure in each other’s company and with their mother.
However, in respect of the children’s views Ms J reported that :
154 d. ….
The children all disclosed highly concerning incidents, including family violence between their parents, physical violence towards the children by Mr Gulizar and verbal abuse and swearing by Mr Gulizar. They all described feeling unsafe at their father’s home and in his care. The two eldest children expressed a wish not to spend any time with Mr Gulizar at all, now or in the future. There was no indication of coaching or rehearsal, and my view is that significant weight should be accorded to their views, given their age and the consistent account they have provided to a variety of professionals. Y was not so adamant about spending no time with him, although she expressed a clear wish to spend less time with him than the current arrangement, and ideally less than every alternative weekend. She made several disclosures of being hurt by Mr Gulizar and claimed to fear him. She presented as quite anxious about Mr Gulizar’s reaction to her statements at interview. However, my view is that limited weight should also be given to (Y’s) wishes as she is only young, and does not understand what is in her best interests. She likely feels a sense of loyalty to Mr Gulizar as well as her mother, and may have been too anxious about the ramifications to express an accurate account of her wishes for less time. Similarly, Z’s views and wishes should be given limited weight. She is young, highly impressionable, and also likely to feel a sense of loyalty to her father, despite her alleged experiences in his care. Her comments that he is “a little bit nice but a lot rude” were consistent with her expressed wish to spend one night per fortnight with Mr Gulizar. However, at the age of six, she is not old enough to understand the attendant risks.
I accept the opinion of Ms J that significant weight should be accorded to the views of the older children. Indeed that position seems to be agreed between the parties to these proceedings. I also accept the opinion of Ms J that limited weight should be given to the views of Z and Y because it is likely that they both feel some sense of loyalty to their father due to their young age and are not able to understand and appreciate the risks associated with spending time with him.
(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);

Each of the parents told a family consultant in 2015 that in principle, the children should spend regular time with both parents. However, over time the parents have come to the view that the relationship of the older children with the father is such that any time they spend with him should be at their discretion.
As is referred to above, in their interviews with Ms J, the children all described a close relationship between each other and their mother. W and X spoke of the father’s absence in their formative years and expressed strong negative feelings about him. Z and Y are not yet at a stage where they are completely rejecting the father, and Ms J reported on the necessity of shielding them from the negative views harboured by the older children against the father if they are to have any chance of a positive relationship in the future. Ms J opines that W and X’s relationship with their father may benefit from them not being ordered to spend time with him, but “leaving the door open” to having a relationship in the future, supported by therapy.
(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;

In the context of these proceedings, this is not a significant criterion.

(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;

The children live with the mother on a full-time basis and subject to child support she fully provides for them. Documents sworn by her put her occupation as ‘home duties’. There were property settlement orders made between the parents in December 2018 but the operative orders do not involve significant amounts of money. Save for the receipt of child support, there is no evidence about the mother’s financial circumstances.
The father works as a professional. He earns $85,000 with a $19,000 car allowance and receives bonuses that can be in the range $2,000 to $10,000 per annum. He pays $1,500 per month in child support.
(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 children have had the mother as their primary caregiver throughout their lives while their relationship with the father is estranged and complicated. Ms J opines that the children will undoubtedly experience distress if they were to be placed with the father, both as a result of having to be separated from the mother and from spending time with the father. I accept those opinions.

(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;

The father lives with his mother in Suburb D. His hours of work are flexible. Much of his work is on the telephone or by email. He is responsible for about 19 businesses but they are all located in the Sydney CBD and Region Q. His office is in Suburb GG but meetings there can be arranged within school hours. That means that it is practicable by reference to the demands of his employment for the father to have an active role with the children.
I gather that the mother is not in paid employment.
(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 children have been exposed to the conflict between the parents.
The mother has maintained a close and loving relationship with all four children.
It is the father’s case that the mother has actively set out to interfere with his relationship with the children. Ms J rejected that contention and I accept her opinion.
It is highly likely that the children are aligned with the mother in the conflict that exists between the parents. The question is whether, as the father contends, that the mother had actively set out to demonise the father or to estrange the girls from him.
On 26 February 2015 Ms R, District School Counsellor reported[16] that W had been referred to her by the mother. W told her that she was “kind of angry” with her father. She said that her father had been working in Country AA for a year and that she realised in 2014 that he was having an affair. Her sisters, Y and X had also become aware of that fact. W reported having an angry interaction with her father about her not being able to attend an event on 21 February 2015 to celebrate the life of her deceased grandfather. W felt that the father did not make enough time for her and that she was not important to him. Ms R noted that W used “we” when referring to her parents’ divorce, in the sense of “when we get a divorce”. Ms R talked to W about dealing with her anger in a healthy way and planned ongoing sessions with her.
[16] Exhibit 4
The father’s relationship with the children has deteriorated since the parents separated, with first the older girls and more recently, Y and Z becoming estranged from him. During cross-examination the father was asked about the likely impact on Y and Z of the orders he proposed. In particular he was taken to his proposal to split the children and it was suggested to him that it would be devastating. He responded to the effect that separation from their siblings would not be devastating for the younger children, indeed that he was sure that it would go well for them. That optimism was said to be based on the very good relationship he has with the younger children. They were happy with him, slept well and never wet the bed. The children always said to him that they would prefer to live with him. Y in particular said that on many occasions and the last occasion that was said was at the father’s home in May 2018. The father said that the children would be compliant with the change of residence proposed by him and would not seek to run away. The father expressed the view that the children would settle down in about two weeks after such a change. Compared to the evidence of Ms J about the impact of such a change, it is probable that the father significantly underestimates the effect of his proposal on Y and Z. He was asked about implementing those orders if there was resistance from the children and I understood him to contemplate the police being used to ensure or facilitate that implementation. That is not a reasonable or child focussed approach.
Ms J reported that the father presented at her interviews as having a limited range of emotion and that he was defensive in style. However she detected no obvious problems with his speech, memory, cognitive resources, memory and judgment. Her testing of him revealed such a high level of defensiveness as to invalidate her further testing. She doubted his capacity to be frank at interview. Ms J reported that the father portrayed himself as being without faults and opined that he may deny any shortcomings, even to himself.
In her report Ms J said:
150.Equally important to consider is that Mr Gulizar has remained unable to identify with and respond to the children’s emotional needs despite courses and counselling. To my mind, this is a critical factor in this case as he has seemingly not benefited from parenting courses (parenting after separation and circle of security), individual counselling with Unifam and direct coaching/intervention from Ms C about what to say and do in the presence of the children. He appears to have been unable or unwilling to accept their import or follow their recommendations. Rather, he remains fixed on the notion that the children should follow Orders, and that a change of residence would work despite him not having any plan about repairing the relationship or helping the children feel safe. These sentiments echo his comments to the family consultant in 2016 that he has “rights” to see the children. I share Ms C’s concern that Mr Gulizar is not emotionally connected to the loss of the children and appears more concerned about legalities. My view is that Mr Gulizar is not psychologically minded, that he is not child-focused, and that is attitude and views about parenting are not amenable to change.
Ms J reported that the mother presented at interview as being open to questions and not defensive. However, as with the father, the testing of the mother did not provide any significant or valid outcomes.
Ms J considered the mother capable of providing for the needs of the children, including their emotional needs. She accepts that certain past failures of the mother to act protectively were due to being placed in a difficult position wherein she was bound by court orders, limiting her capacity to intervene in some circumstances. By contrast, Ms J expresses serious concerns about the father’s lack of ability to identify and respond to the children’s emotional needs. Despite intervention, his behaviour suggests a lack of child-focus and an inability to respond with warmth and empathy, said Ms J. Furthermore, the numerous allegations of family violence indicate the improbability of the father keeping the children safe and meeting their physical or emotional needs.
The father was asked on several occasions during cross-examination as to whether he felt that he had in any way contributed to parlous situation the girls’ currently face and he rejected that proposition, at least in relation to the younger girls. The father conceded that he made (unspecified) errors with the older children.
The paternal grandmother presented as a person independent of the father and as a loving grandmother who has the best interests of her grandchildren at heart. Although not mentioned in her affidavit, as well as the mother, she has had cause to criticise her son for his treatment of the children. Although she said that she had not been informed of the father’s proposal that Y and Z would live in her home on a full-time basis, she seemed genuinely delighted with the prospect. It was revealing that she said during cross-examination that she did not think that the children should be denied contact with their mother on the basis proposed by her son.
Ms B is the paternal aunt. The evidence suggests that the children have had ambivalent relationships with her. She has been described in affectionate terms by one or more of the children but there have also been significant problems in their relationships. The father does not identify any specific role for the paternal aunt under his proposals. Importantly, Ms Gulizar is very much aligned with her brother and would support him.

(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;

The father told Ms J that he is the eldest of three children born to parents of Country U descent and Muslim faith. He said that as a child he was smacked on the bottom as is usual for “ethnic discipline”. The paternal grandmother was asked about that and denied that she or her late husband had ever physically punished one of their children. The father has qualifications in …. As at May 2018 he was working up to 50 hours per week as a professional. He continues to live with his mother in a three bedroom house in Suburb D. He denies having a criminal history. He was the subject of an AVO entered into by consent and he has been investigated on a number of occasions as a result of allegations that he sexually assaulted Z.
The father told Ms J that had been unfaithful to the mother during their relationship and although he strongly denied it to her, he was “excessively” unfaithful to the mother and had sex with anyone he could. However, he denied that he caused the mother to contract Chlamydia.
The mother told Ms J that she was born in Country BB and came to Australia at the age of five years with her parents and six siblings. Her parents were of the Muslim faith. She completed Year 12, went to TAFE and then worked in office jobs. She worked at Employer L for 10 years, reaching a management level. Since then the mother returned to office work but has not had paid employment since 2011. She was living in private rental accommodation with the four children at a location that she did not reveal to the expert. The mother contracted Chlamydia and that ultimately required surgery to remove lesions on her fallopian tubes. She has suffered back pain that has required pain medication. In the six months before she saw Ms J the mother took anti-anxiety medication (Lovan) on and off, but to limited effect.
Associate Dr S opined in 2016 that X and Z met the criteria for ADHD and that they were experiencing emotional and behavioural problems.[17]
(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
[17] Page 7 Ms J’s report
(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 does not apply.

(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

It is the view of Ms J that the mother has demonstrated the capacity to meet the children’s needs and has consistently shown a positive attitude to parenting and the responsibilities to parenthood, including co-parenting. Ms J acknowledged that the father has expressed a desire to maintain a relationship with the children, however she is concerned that he is motivated by a sense of entitlement and his rights as a father as opposed to a consideration of the children’s needs.

(3)(j) any family violence involving the child or a member of the child’s family;

There is no support for the worst of the allegations of physical violence inflicted on one or more of the children by the father. For example the humping and stomping allegations were not established.
Ms J reported[18] that the mother:
… claimed that the verbal arguments occurred regularly in the early part of the marriage but that the violence escalated to physical violence when W was approximately four or five months old. She claimed that he would frequently grab her, would not let her leave the house, that he once pushed a wooden stand on her and threatened her by saying that she did not know what he was in (sic) “capable of doing”. When she was pregnant on one occasion, he allegedly yelled at her for the (sic) for falling pregnant, punched her in the stomach and she reportedly miscarried 24 hours later but Mr Gulizar allegedly refused to take her to the hospital. Then when she went to the hospital, he reportedly came with her and stood over her, which she believes is (sic) only occurred because he feared she was going to tell people about the violence. Ms Gulizar denied any sexual violence in the relationship but claimed that there was financial control in that she was allegedly not allowed to take money and there were times when she did not have enough money for herself or for the children’s needs. Furthermore, she claimed to not be aware that Mr Gulizar had three other mortgages and debt when they married.
67. Ms Gulizar also claimed that Mr Gulizar could not cope with the children’s noise but wanted to have third child because he wanted a boy. His family would reportedly berate Ms Gulizar for not being capable of giving Mr Gulizar a son. When she was pregnant with Y (another girl), Mr Gulizar allegedly went “ballistic” and called Ms Gulizar pathetic. It was after Y’s birth that the physical violence allegedly escalated, such that he would hit and punched Ms Gulizar and also take his anger out on W she claimed that he hit and slapped W on the bottom, and also slapped and that the violence was excessive and not just to discipline her. He has used the wooden spoon on W. She said that she had tried to call the police on occasions but that he would take her phone and also tell W that she could not tell anyone. One night he allegedly slapped X very violently when she was only five years old. He also allegedly pushed, kicked and punched Ms Gulizar on a fairly regular basis. She denied any choking but said that he always pushed and held her. He also reportedly has called her a “flocking slight” and a “terrorist” and she claimed that the neighbours are (sic) would be able to hear him swearing but she would stick up for him.
[18] Paragraphs 66 & 67 of Ms J’s report

As to the effect on the children of family violence to which they may have been exposed, Ms J reported as follows:
154 h. …. my view is that the children have been exposed to family violence and ongoing parental conflict, and that their experience has caused cumulative harm and trauma. The children have all experienced emotional distress that has manifested differently. W seemingly reported anger and frustration in counselling. X has engaged in self-harming and has needed medication and therapy. Y appears to internalise her distress, and she has exhibited enuresis, anxiety and more recently thoughts of self-harm. Z on the other hand externalises her distress, and she has been diagnosed with and medicated for ADHD. She presented as being hyper-aroused and loud, which may lead to more behavioural problems and disruptive behaviour at school or home in the future. My opinion is that all four children are experiencing some form of psychological problems as a result of their trauma, and that they are at significant risk of psych-social problems later in life. To that end, they require therapy, nurturance, stability and protection from ongoing risks.
Ms J was not successfully challenged about her observations or opinions and I accept them.
(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter;

I have referred to the orders made.

(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;

No such order was proposed.

(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:
SECT 61C
Each parent has parental responsibility (subject to court orders)
(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.
An order for shared parental responsibility has the following effect:
SECT 65DAC
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Presumably that must also apply to equal shared parental responsibility.

Discussion

In the context of this case, the s 61DA presumption about equal shared parental responsibility does not apply as there was family violence.
Where the presumption does not apply, s 65D(1) 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 father proposes that there be an order for equal shared parental responsibility or that no order be made, leaving the parents with joint responsibility.
In her written report Ms J recommended that the Court consider ordering that the mother have sole parental responsibility.
It is logical that the parent with whom a child mostly lives should have parental responsibility. That will be the mother in this case.
In any event the parents do not have a good relationship and their communication is poor.

Conclusion

The presumption that the parents having equal shared parental responsibility would be in the best interests of the children does not apply. The proper order is one that places parental responsibility with the mother.

Living Arrangements

In that the Court will not make an order that the parties have equal shared parental responsibility, it is not necessary to consider any particular living arrangements.
The recommendations in the report were as follows:
1.FaCS should remain involved with the family for at least 12 months. They may consider linking the family with Brighter Futures;
2.Consideration should be given to the mother having sole parental responsibility for the children.
3.The children should live primarily with the mother;
4. W and X should not spend any time with the father unless it is at their request;
5. If W and X request to spend time with, or to communicate with the father, the father should facilitate that and some form of supervision would be prudent;
6.Y and Z should spend time with the father, ideally once per week, supervised at a formal contact centre for 12 months;
7.The father should attend upon a clinician with experience in family law, such as Ms C or a practitioner at Counselling HH, with a view to improving his insight and understanding about the children’s needs, how he may repair the relationship with the children, and how to protect the children from harm;
8.The father should also complete a Taking Responsibility court and a course in anger management;
9.The children should all continue to attend upon Ms C for therapy. She should be available to explain any Orders made and also work through the children’s feelings about their father, ideally with a view to helping the older children keep the door open to having a relationship with him in the future. If she sees fit, joint sessions with the father may occur in the future;
10.Any clinician working with the family should be provided a copy of this report;
11. Formal supervision should continue for at least 12 months and move to informal supervision with a family member if and only if the father has attended therapy and the courses as indicated above, and has complied with all recommendations made;
12.Overnight or block time should be at the children’s request but should not commence until Z (the youngest child) is at least 10 years old;
The parents should refrain from denigrating the other parent or exposing the children to information about the legal proceedings.
However, when giving her oral evidence, Ms J said that she could only see three viable options:
1.No time between the children and the father. However, Ms J advocated a tactical retreat by the father, that the father volunteer that outcome, rather than there being an order that the father spend no time with the younger children. In Ms J’s opinion this option had the greatest chance for restoring a relationship between the children and their father, particularly if he undertakes the courses and therapy that she recommended. As at the time of her oral evidence, this was the option favoured by Ms J.
2.A change of residence for the younger children to the father. This was thought to lead to risks including those resulting from the children losing their relationships with their mother and importantly, with their sisters.
3.Leave the children with the mother and persist with the father having time with the children albeit supervised. This risked problems in the sibling dynamics and distress for the mother in enforcing the arrangement. It also risked a continuation of the multiple interventions that they have suffered to date. Ms J thought the goal of this option was unclear. She also thought that the proposal would only be viable with extensive and highly skilled therapeutic interventions with the younger children. Even then the father must engage in the courses and therapy recommended by Ms J. However, Ms J noted that the father had not fully engaged in those interventions despite her earlier recommendations.
Importantly, those observations were different to the recommendations set out in Ms J’s report.
Ms J spoke to advantages and disadvantages of those three options.
Importantly, Ms J said that she believed the children needed a period of respite or reprieve (that is, no time with their father) that might be for 12 months or two years or more. She did not favour fixing such a period by Court order, saying that it would establish a deadline that could become stressful for the children.
Ms J was cross-examined about her opinion about the three options. Suffice it to say that Ms J did not resile from her recommendation for option 1. For example, it was put to Ms J that with handovers at school and the long history, until recent times, of compliance by the children, the father’s proposal could be workable. Ms J was not sanguine about that suggestion and indeed was concerned that the safe harbour that school represents for the younger children could be lost to them if school became a site of conflict. Ms J referred to evidence about past incidents outside a school and the father losing his temper outside a school.
There was extensive exploration of Ms J’s opinion that the children had not been coached by the mother. Ms J maintained that opinion. As to the humping allegation by Z, Ms J was asked about the import of that issue not being raised with her by the mother. She saw nothing definitive in that fact. It was put to Ms J that the fact that the notification was not raised with her by the mother was suggestive of the mother coaching the child. Ms J rejected that suggestion.
From the cross-examination of Ms J on behalf of the father I take it that he contends that the intervention of DFACS was itself influential in the estrangement of the father from his daughters. Ms J did not adopt that contention. Neither do I. There is an aspect of the father’s case that would have responsibility for his estrangement from the children laid at the feet of the Department. I think that might be a confusion between the DFACS involvement and the existing pathology in the relationships between the children and their father. I found no indication that the officers of DFACS did other than discharge their statutory obligations in a professional and responsible manner.
Ms J also pointed out the risks to the children if they were to be somehow insulated from the reach of the DFACS. I am not sure how this Court could influence such an outcome but even if it was possible, there is no justification and many dangers, in such a course.
The father’s counsel took Ms J to his client’s primary position (option 2) and asked about the idea of a period when the younger children did not see their mother after a change of residence to the father. Ms J said that the preconditions for that course do not exist and therefore she could not recommend it. If it was warranted she said that such a period of isolation from the mother would need to be two or three months.
In cross-examination on behalf of the mother’s counsel Ms J confirmed that the defensiveness identified in her testing of him was of concern for his future parenting. She agreed that the father was untruthful in his interview with her. For example, his reporting in 2018 of his own alcohol consumption was very different to what he told his doctor in 2014. Of course the father’s rate of consumption of alcohol may have diminished in the intervening years. However, Ms J agreed that alcohol consumption at the rate the father reported in 2014 was inconsistent with his evidence of having an involved role as a parent of four young children at that time.
It was submitted on behalf of the father that this was not a case that could be determined by accepting all of the evidence of one of the parents and rejecting that of the other. His counsel suggested that issues should be assessed one at a time. As I have indicated I did not find that either of the parents set out to mislead the Court but I nevertheless found the mother to be a more reliable witness.
As to the report of Ms J it is submitted for the father that the report was prepared with care, by an experienced expert. The report was characterised as one that concluded that the father was an abusive parent with limited insight into his behaviour and that the children’s attitudes were commensurate with their experience of their father. It was submitted that there was a difference between the report and the oral evidence of Ms J in relation to the validity of the notifications by the children, with Ms J appearing to allow in her oral evidence that the notifications may not have been valid. The concern on behalf of the father was that the negative view of the father remained from the report into the expert’s oral evidence at trial but that the reasons for that view seemed to change between the two sets of evidence.
The submission is that the expert’s ultimate recommendation has been contaminated by the view formed at the stage of the written report. I do not understand that submission. Albeit not described as “contamination”, it would be remarkable if the opinion of the expert was not informed by her observations of the parties, reading relevant material and the other matters described in her own written report.
It is noted that the expert’s recommendations changed between the report and her oral evidence, with a cessation of the father’s time said to be justified by the exposure of the children to about 15 separate interventions. The ultimate question posed on behalf of the father is whether he is an unacceptable risk of harm and things are so far gone that the children cannot safely have a relationship with him. In the father’s own case, there is a circumstance of that seriousness. He contends that his relationship with the children cannot be restored unless they are removed from their mother.
From the father’s point of view, disclosures made by the younger children lead to the consent orders imposing supervision on his time with them and therefore the way in which those disclosures were made is said to be important. In particular it is noted that Y’s allegations about the father stomping on her are imprecise as to the year of the incident and it is unlikely that there was any serious incident of such a nature. It is therefore submitted that the Court should find that the disclosure was never made. It is submitted for the father that the younger children should be able to return to a relationship with him.
In particular it is submitted that Z was less emphatic in her opposition to time with the father and therefore will more readily resume that time. The submission is that Z is apparently less adversely affected by the recent history. It is conceded that the impact of that history on Y is more serious. Given that the father seeks the same order for Y and Z, I do not understand the import of that submission.
The father’s primary case is that the children should be withdrawn from the mother for a period in order to restore their relationship with him. In circumstances where the father accepts no substantial responsibility for the current state of his relationship with the children, the Court can be confident that he intends to make no changes in his own behaviour. On what basis could the Court have confidence that the father would be able to be an adequate replacement for the primary care giver of the children?
The father’s fall-back position has the appearance of a triumph of hope over experience. Save for further stressing the children there is nothing in that proposal that suggests any reason for expecting a change in the recent experience of the family.
As was submitted on behalf of the father, I will not find that the worst of the allegations made against the father of physical abuse of the children were borne out. They included allegations:
·about stomping made on 9 July 2014;
·that Z made to Keeping in Contact staff on 6 April 2016 that she was kicked in the stomach and head and that an ice pack applied; that she was bitten on the bottom; that the father rammed his car into a wall. In the latter case the mother conceded that the allegation was likely to be untrue;
·made to a Family Consultant on 1 June 2016 wherein W claimed to have been kicked in the stomach three times;
·made by Z in October 2016 that the father threatened to bash her and throw her out of window;
·made by Z in December 2017 that the father choked her while they were on holiday at the Region T; and
·made by Z in 2018 being allegations in the nature of sexual harm.
I do not find that the incidents took place as alleged. That said, it is an agreed fact that the father has hit the children. I am satisfied that the father was responsible for family violence against the mother.
It is the father’s submission that he will complete courses and then undertake an anger management program and that the children will not be exposed to risk in his care. Given that he finds no fault in his own treatment of the mother or the younger children, I do not accept that conclusion.
As to other risks, the father’s counsel referred to the evidence of Ms J about the risk of psychological harm to the children. In particular Ms J noted the adverse psychological impact of the many interventions, including supervision that the children have experienced. I noted however that the father himself seeks supervision of the mother’s time with the children. It was conceded on his behalf that before the Court would order that the mother’s time be supervised it would need to find that there was a risk of the mother and or the older children overtly or incidentally denigrating the father to the younger children. I have not found that the mother has deliberately denigrated the father to or in the presence or hearing of the children.
It is the submission on behalf of the father that the supervision of his time was damaging for the children. The implication of that is that the orders proposed by the mother in her counsel’s case outline document would not be in the best interests of the younger children. I agree. However, he too seeks orders for supervision.

As was submitted on behalf of the mother, notwithstanding the father’s complaints about the mother initiating violence against him in July 2013, he left the children with the mother while he travelled overseas for more than a month from August 2013.
As I have indicated, ultimately it was submitted on behalf of the mother and DFACS that the orders proposed by the ICL are appropriate.
I agree with the analysis undertaken by Ms J about the available options for future living arrangements for the younger children. There is no justification for the second and third of those options.
The second option would leave the children, at least for a period, without the close, loving and appropriate support they have had from their mother and their siblings for their entire lives. That would place them at risk of harm and there is no basis for believing that the father will be able to provide the missing love and support. The parents’ arrangement had the mother as the primary care giver and had the girls mainly living together. There is no reason now to doubt the wisdom of that arrangement. As is submitted in his own case, the supervision that the father proposes for the reintroduction of the mother to the younger children will add to the stress of the younger children.
Ms J’s third option, which is effectively the father’s alternate position, is a continuation of something that has not worked over recent months. As Ms J said, the suggested change to handovers at school risks jeopardising one of few safe harbours for the children. There have already been unfortunate scenes at school involving some of the children.
I cannot order the father to make the “tactical withdrawal” that is Ms J’s favoured implementation of her first option. As I said during submissions, there can be no criticism of the father in not taking up the suggested course. I can however achieve some of the predicted outcomes of the first option by ceasing the father’s time with the younger children. That would leave them with their primary carer and their siblings. It would dramatically reduce the risk of Y and Z being exposed to conflict between their parents and of any further interventions of the type to which they have recently been exposed. Ultimately that is the only option that is likely to promote the best interests of the children. The views of the children have little weight but there is no doubt that they would like to remain living with their mother and siblings. The first option addresses the balance required between risks and the maintenance of important relationships, in favour of safety. It is explained by the relative capacities of the parents and has the support of the ICL and DFACS.
As to the precise formulation of the orders, the ICL’s proposed Order 6 is not appropriate. The proposed Order 7 leaves the resumption of time with the father to be agreed by the mother. There is no need to circumscribe the considerations that she might deem to justify that resumption. Further, the idea of ordering the father to undertake a parenting or anger management course is futile. There is a dispute about whether the father has acted or fully acted on Ms J’s recommendations for courses he might undertake. Either he will be motivated to address the matters identified by Ms J or he will not. In any event, it should be a matter for the mother as to whether it is safe and beneficial for time to resume.
As to the injunctions proposed by the ICL, minds differ about the physical discipline of children and particularly about the striking of children. Here there is evidence that the children have been struck, including being struck with an implement, being a wooden spoon. In those circumstances a proposed device in an injunction - “use excessive force or any implement to discipline a child” leaves too much room. Where parents agree to use physical force within the limits of State law that is a matter for them. Here there is a dispute about the issue and the Court has been asked to adjudicate on it. The proper order is to restrain the parents from striking the children.

Costs

The ICL sought that the parents each pay $11,727 towards the costs of the ICL which were a total of $23,454.
The father did not oppose the application for costs made by the ICL insofar as costs were sought against him and I will make that order.
The mother did not consent to the application for costs made by the ICL insofar as costs were sought against her. The application for costs is entirely appropriate. However, unlike the father, there is little evidence about her financial circumstances. The mother has been out of the paid workforce for many years. I gather from the property settlement orders made late last year that the former matrimonial home was sold with very little equity. The father pays child support to the mother. There was reference in the evidence to the mother borrowing money from friends or family. I will make no order against the mother for the costs of the ICL.

Conclusion

After years of conflict between the parents, including four years of litigation, there is a need to provide respite for four young girls. The parents have agreed that the older girls, W and X will continue to live with their mother and that arrangements for them to spend time with their father will depend largely on them. The parents will facilitate their wishes in that regard.
The parents could not agree about their exercise of parental responsibility, nor about the living arrangements for the younger girls, Z and Y.
The orders made provide for the mother to exercise sole parental responsibility and that she inform the father about certain matters. They provide that Z and Y will continue to live with the mother and their older sisters and there will be no orders for them to spend time or communicate with the father other than those arrangements that are agreed by the mother.
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 two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 4 July 2019.

Associate:

Date: 4 July 2019

[2019] FamCA 419

4 July 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Costs