Habib & Ibrahim

[2019] FamCA 116

FAMILY COURT OF AUSTRALIA

HABIB & IBRAHIM [2019] FamCA 116

FAMILY LAW – CHILDREN – Interim parenting proceedings – Where earlier final orders placing child in father’s primary care – Where mother’s conduct again causes concern – Where in the best interests of the child for time with the mother other than therapeutic engagement be suspended – Where appropriate to reconsider child time with the mother after she obtains a psychiatric review and after ongoing therapeutic intervention.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 69ZL

Deiter & Deiter [2011] FamCAFC 82
Goode & Goode [2006] FamCA 1346
Habib & Ibrahim [2018] FamCA 633
Marvel & Marvel [2010] FamCAFC 101
MRR v GR [2010] HCA 4

APPLICANT: Mr Habib

RESPONDENT: Ms Ibrahim

INDEPENDENT CHILDREN’S LAWYER: Mr Bell

FILE NUMBER: PAC 3236 of 2016

DATE DELIVERED: 5 March 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 19 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms De Vere

SOLICITOR FOR THE APPLICANT: Godden Lawyers

COUNSEL FOR THE RESPONDENT: Mr Schonell

SOLICITOR FOR THE RESPONDENT: Karras Partners Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bell of Stephen W Bell & Associates

Orders pending further order

1. That the mother’s time with the child X born … 2009 as provided for in Orders (9) and (10) made on 19 July 2018 be suspended.

2. By consent, that the mother within seven days from this date  do all things necessary to obtain from her treating medical practitioner a referral to a specialist treating Psychiatrist and within a further seven days inform the Independent Children’s Lawyer and the father’s solicitor of the name and contact details of that specialist practitioner and the date of her first appointment with that practitioner.

3. That the mother do all things necessary to attend upon the specialist practitioner at dates and times appointed by that practitioner and obey all reasonable directions of that practitioner as to ongoing treatment and medication and attend upon any other medical practitioner or therapist recommended by the specialist practitioner.

4. That the mother authorise the specialist practitioner to provide, at the mother’s expense, to the Independent Children’s Lawyer and the father’s solicitor such information that may be reasonably requested by either of them as to the mother’s presentation, the history given by her, her diagnosis, if any, her prognosis and any recommendations for ongoing treatment or therapy, details of any medications prescribed and details of any referral of the mother to another practitioner or therapist.   

5. That the Independent Children’s Lawyer have leave to provide to the mother’s specialist treating practitioner a copy of the Orders and Reasons for judgment dated 19 July 2018, a copy of the Single Expert Report of Dr D dated 13 October 2017 and a copy of these Orders and Reasons for Judgment.

6. That the Independent Children’s Lawyer have leave to relist these proceedings on seven days’ notice to the parties either at the request of the Independent Children’s Lawyer or either or both of the parties.

7. That until further order each party MR HABIB born … 1971 and MS IBRAHIM born … 1977, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the child X born … 2009 from the Commonwealth of Australia for a period of five years.

   AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for the said period or until the Court orders its removal.

8. It is noted that the Orders made 19 July 2018 requiring the parties to engage in therapeutic intervention remain in force.  

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 Habib & Ibrahim 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 PARRAMATTA

FILE NUMBER: PAC 3236 of 2016

Mr Habib

Applicant

And

Ms Ibrahim

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 19 July 2018 the Court delivered Reasons for Judgment and final orders in protracted parenting proceedings between the then applicant father Mr Habib and the respondent mother Ms Ibrahim: Habib & Ibrahim [2018] FamCA 633.

2. These Reasons for Judgment assume familiarity with those reasons.

3. Final orders made on 19 July 2018 were as follows:

   (1)That all previous parenting orders in relation to the child X born in 2009 (“the child”) be discharged.

   (2)That the child live with the father.

   (3)That the father be at liberty to choose to have the child reside at the home of the paternal aunt Ms B for such period as determined by him in consultation with the paternal aunt and the therapist appointed pursuant to these orders.

   (4)That the father have sole parental responsibility for major long term issues relating to the child.

   (5)That prior to the father making decisions relating to major long term issues as to the child including but not limited to his health and education, the father shall notify the mother in writing, such writing to include SMS or email communication, of his proposal and seek her response in writing within 21 days and take into account the mother’s response provided such response is received within the stated period and notify the mother of his ultimate decision.

   (6)That the father as soon as practicable obtain a mental health referral for the child to attend upon Ms C (“the therapist”) for the purposes of therapeutic counselling and the child shall continue to attend on such therapist on such occasions as recommended by the therapist and for such period as recommended by the therapist.

   (7)That the mother and father shall cooperate with all reasonable requests made by the therapist for involvement by either or both of them in providing information to or in attending upon the therapist.

   (8)That leave is granted to the father to provide a copy of the Single Expert Report of Dr D dated 13 October 2017 and these Reasons for Judgment to the therapist.

   (9)That the child spend no time with the mother for a period of four (4) months from the date of these orders and thereafter the child spend time with the mother as follows:

   (a)for a period of three (3) months each Sunday from 10.00 am to 2.00 pm under community-based supervision by a supervision service agreed between the parties in writing or in default of agreement nominated by the Independent Children’s Lawyer and that for the purposes of the mother’s supervised time as provided for above the father shall deliver the child to the supervisor at the commencement of the time the child is to spend with the mother and collect the child from the supervisor at the conclusion of the time the child spends with the mother;

   (b)thereafter for a period of three (3) months each Sunday from 10.00 am to 6.00 pm;

   (c)thereafter for a period of six (6) months each alternate weekend from 10.00 am Saturday to 6.00 pm Sunday;

   (d)from the commencement of weekend overnight time from Saturday to Sunday as provided for in Order (9)(c) above the child shall if not otherwise spending time with the mother spend time with the mother:

   (i)on the Mother’s Day weekend from 10am Saturday to 6.00 pm Sunday;

   (ii)each alternate year commencing in 2019 on New Year as follows:

   A.if the new year falls on a weekday then from the conclusion of school to the commencement of school the following day;

   B.if the new year falls on a weekend from 10am on that day to the commencement of school the following day or 10.00 am the following day if a non-school day

   C.in each other year the mother’s time with the child shall be suspended on New Year:

   a.if the new year falls on a weekday then from the conclusion of school to the commencement of school the following day;

   b.if the new year falls on a weekend from 10.00 am on that day to the commencement of school the following day or 10.00 am the following day if a non-school day;

   (iii)on the child’s birthday from 3.00 pm to 8.00 pm if the child is not otherwise spending time with the mother and provided that if the child is spending time with the mother such time shall be suspended from 3.00 pm to 8.00 pm;

   (iv)on the mother’s birthday from the conclusion of school to 8.00 pm if a school day or from 10.00 am to 6.00 pm if on a weekend provided always that the child’s time with the mother shall be suspended on the father’s birthday from the conclusion of school to 8.00 pm if a school day or from 10.00 am to 6.00 pm if on a weekend;

   (e)thereafter for a period of three (3) months each alternate weekend during school term from after school Friday to the commencement of school Monday with such time in each new school term to commence on the first weekend after school resumes;

   (f) thereafter each alternate weekend during school term from after school Thursday to the commencement of school Monday with such time in each new school term to commence on the first weekend after school resumes;

   (g) from the commencement of weekend overnight time from Friday to Monday as provided for in (9)(e) above for one week in each mid-year term school holiday period commencing the first week from after school on the day term ends to 6.00 pm on the mid-point Saturday in odd-numbered years and the second week commencing at 6.00 pm on the mid-point Saturday to 5.00 pm on the day before school resumes in even-numbered years from 2020;

   (h)for two weeks in the Christmas school holiday period commencing in 2019/2020 school holidays  as agreed between the parties and in default of agreement from 9.00 am on the first Saturday in January to 6.00 pm on the second Saturday thereafter; and

   (i)at other times as agreed in writing, such writing to include SMS or email communication, between the parties. 

   (10)That as and from the expiration of a period of seven (7) months from the date of these orders the mother may attend events at the child’s school to which parents are normally invited including parent teacher interviews.

   (11)That the mother be and is hereby restrained from attending within 100 metres of the child’s school when the child is in attendance unless, for the purpose of attending an event pursuant to the previous order or at other times as agreed between the parties in writing such writing to include SMS or email communication.

   (12)That the mother be at liberty to communicate with the child’s school and treating health practitioners and for such purposes the father shall do all things necessary to authorise such information to be made available to the mother as she may reasonably request.

   (13)That the mother and father shall notify each other of any serious illness or injury suffered by the child when he is in their respective care with such notification to include the name and location of any treating medical professional and an authority for the treating professional to provide to the other party information on the child’s treatment and prognosis.

   (14)That these Orders are authority for the school that the child attends to provide to the mother copies of all school reports, newsletters, notices of events to which parents are invited and copies of correspondence relating to the child’s education.

   (15)That unless otherwise provided changeovers for the child to spend time with the mother which do not occur at school will take place with the father or his nominee delivering the child to the mother’s nominated residence and the mother or her nominee returning the child to the father’s nominated residence unless otherwise agreed between the parties in writing, such writing to include SMS or email communication.

   (16)That the appointment of the Independent Children’s Lawyer be continued for a period of 12 months from the date of these orders and thereafter the Independent Children’s Lawyer be discharged.

   (17)That any application for costs by the Independent Children’s Lawyer in respect to the proceedings to date be by way of written submission filed and served within one month from this date with any submissions in response to be filed and served within a further 14 days with judgment thereafter reserved to chambers.

   (18)That each party and the Independent Children’s Lawyer has liberty to relist as to enforcement or implementation of these Orders.

4. As can be seen, the orders reflect a difficult parenting circumstance for the child against a background more fully set out in the Reasons for Judgment.

5. On 8 January 2019 the father filed a further application initiating proceedings. That application was amended with the filing of an Amended Initiating Application on 14 February 2019. That application sought final orders, in summary, that provided:

   a)That the mother and father be restrained from removing the subject child from the Commonwealth of Australia and that the child be placed on the Family Law Watchlist.

   b)That the mother obtain a comprehensive mental health assessment from a psychiatrist with such report to address her mental health history, her current mental health, a prognosis, recommendations as to ongoing treatment and any possible impact on the mother’s ability to care for the child and that the mother follow recommendations by her treating psychiatrist.

   c)That pending the psychiatric assessment the mother’s time with the child be suspended,

   d)Or in the alternative, that the mother spends supervised time with the child for two hours each alternate Saturday at a children’s contact centre.

6. The father sought interim orders in the same terms.

7. The father relied upon the following affidavits:

   e)his affidavit filed 8 January 2019;

   f)his affidavit filed 14 February 2019.

8. The mother filed a Response on 12 February 2019 to the father’s application.  In that Response the mother sought final orders that, in summary, provided for the father’s fresh application to be dismissed and that the father be restrained from discussing matters concerning contact visits with the supervisor in the presence of the child and, otherwise, be restrained from discussions with the supervisor before any contact visit.

9. The mother sought interim orders in like terms together with orders that provided for a change of the mother’s time with the child from a Sunday to Saturday and that, otherwise, by way of “make up contact” the child spend time with the mother each Saturday from 10.00 am to 6.00 pm for eight consecutive weekends in addition to Sunday time otherwise provided.

10. The mother relied upon her affidavit filed 12 February 2019 and the affidavit of her husband Mr H filed 12 February 2019.

11. The short background to the parties’ relationship is set out in the previous Reasons for Judgment as follows:

    5.The father is 47 years of age and was born in Country K.  The mother is 41 years of age and was also born in Country K. The father is a licensed professional and the mother works part time in retail three days per week.

    6.The father arrived in Australia on a permanent resident visa in May 1991 and is now an Australian citizen.

    7.The mother and father married in July 2004, with the mother joining the father in Australia as a permanent resident in December 2004, and separated on a final basis in May 2012.

    8.The subject child is the only child of their relationship. The child is now nine years of age. 

    9.The mother met her new partner, Mr H, in mid-2013 and commenced a defacto relationship with him in October 2014. They married in July 2017. They live in rented accommodation at Suburb CC in Sydney’s eastern suburbs. Mr H has a child from a previous relationship, F now aged 10. The child spends weekends until 11am Sunday and holiday time in their household. The child and F have a good relationship.

12. Whilst it was common ground that there had been a significant change in the circumstances of the child in that the child has spent no time with the mother since mid-December 2018, it was also common ground that the further application sought to address difficulties with implementation of orders by reason of regrettable ructions that had occurred shortly after final orders were made.

13. It was, otherwise, common ground that the child should be placed on the Family Law Watchlist and such order will be made by consent.  Otherwise, during the course of submissions the mother agreed that she would obtain a referral to a treating clinical psychiatrist for the purposes of examination and report.  Such order will also be made by consent.  These proposed orders have the support of the Independent Children’s Lawyer.

The father’s evidence

1. Subsequent to final orders, a changeover of the child’s care to the father was implemented with the assistance of the Senior Family Consultant of Child Dispute Services at this Registry.  The child’s paternal aunt was also present.

2. The child and the father resided with the paternal aunt for about 10 days to allow the child to settle and also to engage with the aunt’s children, his cousins.  The child and father moved to reside in the father’s residence thereafter.

3. The father changed the child’s schooling arrangements and the child appears to have thrived in his new school.

4. The mother, for a period, was precluded from attending at the child’s school or going within 100 metres of that school.  Notwithstanding the father received an email communication from the child’s school indicating that the mother, referring to herself as Ms H, had booked herself in for a school tour at the child’s new school.  The father made a complaint to the mother’s solicitors as to the prospective breach of orders and the tour was cancelled.

5. As contemplated by final orders the child and the parties have engaged with the therapist, Ms C.  The father and/or the child attended on Ms C from July until October 2018 with the appointments at that time then being on a monthly basis.  The therapist recommended that the father and mother have joint sessions prior to the mother’s first visit with the child pursuant to final orders.  Sessions were booked for 1 November 2018, 8 November 2018 and 15 November 2018.

6. The mother cancelled the session on 1 November 2018 asserting ill-health.  The parties attended the joint session on 8 November 2018; the father asserting that the mother mostly made complaint about the final orders.  The mother then cancelled her scheduled visit with the therapist on 15 November 2018 and the father was seen by the therapist alone.

7. On 20 December 2018 the therapist reported to the father that she had had a joint session with the mother and her husband which the therapist described as a “difficult session” and indicated that she did not expect that the mother would return.

8. The father has communicated, it appears, regularly with the mother as to the child’s circumstances and activities during the time that the child’s time has been suspended. The father complains that the mother’s responses have to some extent been disparaging of him.

1. It is readily apparent that the father’s enthusiastic engagement with the mother subsequent to orders has been counter-productive and seems to have only produced conflict between the parties as evidenced by their communication.  It is also readily apparent from the Reasons for Judgment that the parties had a poor relationship following their separation.  The father’s attempt to keep the mother intimately informed of the child’s progress and activities has only fuelled conflict.

2. The mother commenced supervised time with the child on 17 November 2018.  Supervised visits then followed on 25 November 2018, 2 December 2018, 9 December 2018 and finally on 15 December 2018.  Things did not go well.

   Supervised visits

3. Supervised visit reports comprise Exhibit “C” in the proceedings.

4. During the visit on 17 November 2018 the mother informed the child that she had purchased for him an iPad and that she and the child could set up FaceTime electronic communication from the father’s home.  The child informed the mother that the father would not permit him to do so saying “I can’t FaceTime because dad said no and it’s up to the judge” and the mother responded “you can tell me when you are uncomfortable even with your dad. It is my legal right to FaceTime you.  If your dad does anything that upsets you, you can tell me or speak to [Ms DD] [the supervisor] as well”.  The mother then proceeded to whisper to the child. Such form of communication is not in accord with supervision requirements. Otherwise, the visit appeared to have progressed satisfactorily with no concerns reported by the supervisor.

5. The mother’s conduct on this very first supervised visit is disturbingly reflective of her inappropriate enmeshment with the child and her regrettable willingness to engage the child in inappropriate issues.  This is disturbingly reflective of her conduct discussed in detail in the previous Reasons for Judgment.

6. The next supervised visit was 25 November 2018.  The father expressed some concern to the supervisor that the mother had raised inappropriate issues with the child.  The child himself expressed a concern to the supervisor with the supervisor reassuring the child saying “there is no need to worry, you do not have to speak about the judge, you just enjoy your time”.  Otherwise the visit appeared uneventful.

7. The third supervised visit occurred on 2 December 2018, a new supervisor, Ms EE, was present.  This visit also was uneventful.

8. The fourth visit occurred on 9 December 2018.  Again the supervisor was Ms EE.  This visit was unremarkable.

9. The final contact visit was on 15 December 2018.  The supervisor’s report noted concerns in the following terms:

   It appeared that [X] was put in an uncomfortable position and that his safety had been compromised by [the mother].  It appeared that [the mother] was causing [X] to experience emotional distress and mentally affected [X’s] cognitive thinking during this visit.

10. The supervisor’s report was detailed and concerning.  At the commencement of the visit the father accused the supervisor of being manipulated by the mother and not doing her job and leaving the child with the mother unsupervised.  The supervisor reported that she was upset by the father’s conduct.  The supervisor reported the father’s conduct to the mother.  Thereupon a conversation took place between the mother and the child reported by the supervisor as follows:

    Mother: I want to ask you something and I need you to be honest with me.  I received a complaint that I’m causing you stress and you have not been happy coming here.  Have you said to anyone that you’re not happy coming here?

    Child: No I’m happy coming here.  I did not say that.

    Mother: Did you tell your dad that [Ms EE] leave you alone?

    Child: No, I didn’t say that.

11. The supervisor then intervened and said to the mother “please don’t make him feel uncomfortable, just leave him.  Don’t ask him these questions.”  The mother replied “because I want him to stick up for himself and not be afraid to”. The mother then asked the child “are you afraid of your dad?”  The child replied “he yells at me and when he yells at me I start crying and then he tells me to go to your room and cry”.

12. The supervisor reports that at this point the mother became emotional and was crying.  The child became distressed and was crying.  The supervisor sought to intervene and the mother somewhat perplexingly said to the supervisor “park your car in my visitor’s car park in the garage because I’m scared for you”.  The mother left the room and the supervisor reassured the child “everything is fine, I promise.  Just enjoy your time here”.  At about 11.30 am the child asked the supervisor what time it was and the child then said to the supervisor “I miss my dad, I’m going to hold your hand and you can take me to my dad”.  The supervisor reassured the child.

13. A short time later the supervisor who was with the child upstairs was called downstairs.  She went downstairs with the child to observe that the mother had fallen and was shaking, appearing to have problems breathing and having an anxiety attack.  The child became distressed “my mum is going to die, call the ambulance”.  Mr H, in an extraordinary display of insensitivity and inappropriateness, said to the child “this is because of you, she’s stressed”.  The child said “I’m sorry mum”. 

14. The supervisor reassured the child who sat next to his mother seeking to reassure her.  The mother then, in breach of supervision guidelines, spoke to the child in another language and the supervisor observed the child start to cry and become stressed.  The child indicated that he wished to leave but at the request of Mr H the child remained and sat next to his mother.

15. With that the mother spoke again to the child in the other language, again in breach of supervision guidelines, and to the supervisor’s observation the child was discomfited by what was said and began to cry hysterically and turned pale.  The supervisor said “okay it’s enough [X] we are leaving now”.  The child was resistant to leaving.  The supervisor picked up the child and unlocked the front door.  The child called out “I don’t want to go, my mum is going to die”.  The supervisor telephoned the father to attend as soon as possible to collect the child.  The child continued to refuse to leave the mother and was removed from the mother’s home by the supervisor and placed in her car.  The child then became composed quite quickly and said to the supervisor “is my dad coming now?  I want my dad, I’m scared”.

16. The supervisor drove from the mother’s home to a nearby petrol station and waited for the father.  The supervisor reported the occurrences to the father including the mother speaking to the child in the other language that “was freaking [X] out”.

17. The father spoke to the child who reported “mum said she was going to kill me, dad I have never seen her/mum like that before.  She was very serious”.  The father sought to reassure the child who then said “dad she said ‘if I can’t have you, nobody will.  I will kill you before I live without you every day.’  Dad she looked dead when she said it.  She looked at me and said she wanted to kill me.  I was so scared, I don’t want to see her anymore.  She will kill me”.

18. Subsequent to this visit on 15 December 2018 the father unilaterally ceased the child’s time with the mother and filed the present application on 10 January 2019.

19. The father expresses significant concern that the mother feels that she has lost control of the child and that she will harm him and she continues to hold a belief that the child is sick and unsafe in his care.  The mother, otherwise, has shared posts on her Facebook profile that are disparaging of this Court and has posted various messages including “I am no longer accepting the things I cannot change.  I am changing the things I cannot accept” and “fleeing family violence to another country and taking your child is not abduction but that’s how the law sees it”.

20. It is common ground that the mother travelled to Country K in October/November 2018.  The father expresses concern that the child will be taken from Australia by the mother.

21. The child has, to the father, appeared concerned about further contact with his mother and has sought to spend more time at his grandparents’ home or his aunt’s home for sleepovers; expressing a concern that he would be abducted from his father’s home by the mother and her partner.

22. The father seeks orders that would provide for the mother to seek psychiatric help and for an appropriate treating practitioner report to be made available.

The mother’s evidence

1. Subsequent to court orders the mother says that she attended upon the therapist, Ms C, on 30 August 2018.  The mother was unable to attend the proposed joint session with the father on 1 November 2018 as she was overseas.  She informed the father that she was unwell rather than advising him that she was overseas.

2. The mother denies that she spoke to the child as alleged.

3. Her affidavit reveals ongoing disdain for the father, her ongoing enmeshment in the child and his circumstances and a focus of irrelevant minutiae.

4. The parties attended a joint session with the therapist on 8 November 2018 and it is readily apparent from the mother’s version of what transpired that the parties remain significantly conflicted and unable to properly reflect upon the needs of their child.  The therapist attempted to reassure them “we all have to work together as a team and I’m hoping this will lead to a better future for [X]”. 

5. The mother did not attend the next proposed joint visit with the therapist on 15 November 2018 informing the therapist that she would rather attend individual sessions.

6. The mother and her partner attended upon the therapist on 13 December 2018. Both the mother and her partner maintained to the therapist that the child was “terrified” of the father: Exhibit “D”.

   Further Therapist visits

7. On 20 December 2018 the father and child attended on the therapist. The child refused to attend without the father; the child being concerned that the mother might attend. The child repeated to the therapist his mother’s threat to kill him. The therapist then managed to see the child independently of the father. The child reported to the therapist that he was blamed for the mother’s panic episode with the mother saying to him in another language “I won’t like you anymore, I will kill you if you go back” The therapist enquired of the child if he was scared of his father when he is angry. The child reported that that was when he was naughty that his father gets angry. He is not scared of his father and has never been scared of him. The child told the therapist that he wanted a break from seeing his mother and wanted her to get better.

8. The child was seen again by the therapist on 18 January 2019. He continued to express anxiety about seeing his mother; that she would not steal him. He was well aware of the mother’s dislike for his father. He reported that he really enjoyed his time with his father and loved him. He missed his mother but did not want to see her at this time.      

9. The mother and her partner attended upon the therapist again on 30 January 2019. The mother provided a version of events of 15 December 2018 that was remarkably at odds with that of the independent supervisor and that reported by the child.

10. On 7 February 2019 the father and child again attended upon the therapist. The father outlined his proposal for the child to spend time with the mother in a contact centre. The child, it appears, was seen separately and reported that he did not want to meet with his mother or, if he did, just him and the mother without her partner who told him it was “my fault” for the mother’s panic attack. Otherwise, the child reported positively about his time with the father and his school.

11. The material produced in Exhibit “D” contains correspondence from the mother to the therapist. The tone of the correspondence reflects the ongoing animosity of the mother towards the father and her lack of insight into the needs of her son. It raises significant concern as to her lack of emotional regulation.

12. In the Reasons for Judgment in the primary trial it was observed:

    197.The single expert considered whether the child is at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  In discounting any unacceptable risk within the father’s household the single expert considered the child’s circumstances with the mother in the following terms:

    The events since the separation suggest that the enmeshment between [the child]  and his mother has had a harmful effect on him in that it has led to fears and phobias as well as a sub-optimal relationship with his father, and ultimately to its breakdown. It is also clear that in relation to [Mr Habib], this is not simply a matter of neglect by [Ms Ibrahim] and more latterly [Mr H], but that there have been acts of commission which, possibly unintentionally, have made the situation dramatically worse. I refer to her coaching [the child] in what to say in front of [Dr J], not being effectively discouraged from referring to his father by his first name, and allowing him to refer to [Mr H] as “Daddy”. These are all incontrovertible matters which are probably only the tip of an iceberg of undermining behaviour, and there is no doubt that [Dr J] has counselled [Ms Ibrahim] against them. The only question in my mind is whether [Ms Ibrahim] has wilfully continued with this behaviour or whether she is simply unable to stop herself because of an overly enmeshed and over-protective relationship with her son. However even if it is the latter, I very much doubt that counselling will reverse this within the requisite timeframe of [the child’s]  primary school years, bearing in mind the negligible impact [Dr J’s] advice seems to have had thus far.   (emphasis added)

13. Somewhat presciently in the Reasons for Judgment at [218]:

    218.The single expert considered that should there be a change of residence of the child to the father’s care then time with the mother should begin after four months subject to any views by any engaged therapist and in that event with the agreement of both parties.  The mother’s time should be initially supervised as:

    she doesn’t really understand that she says certain things and that she has a narrative style with her son that gives him too many choices.  And, you know, even the – you know, the way he was prepared for the supervised visits and that kind of thing there are, sort of, lots of examples of her, in a sense, trying to soft sell and offering him options. 

    and at [221]

    221.The single expert was, in response to a question from the mother’s counsel, circumspect about the prospects of successful ongoing therapy in the event that the child remain living with the mother.  He said:

    My reading of [Dr J’s] things was that on one hand the mother did what [Dr J] said in terms of the physical things, bring him here, that sort of stuff, but she was still saying things which are quite antithetical to the task, and either she didn’t get it or she just felt that – well, I guess she either didn’t get it or she was deliberately trying to undermine it, and when I saw her I thought that those same contradictory elements were present, and for that reason I had a high degree of scepticism as to whether, even if she did appear to lift her game, what happened behind closed doors would be a different question and that the whole thing would collapse the minute she was out of the spotlight and, as I say, what had happened since then doesn’t make me change my view about that.

14. As to the mother’s capacity to provide for the needs of the child, including emotional and intellectual needs it was said at [243 (f)]:

    This consideration is clearly of significance.  It has been discussed in the consideration of the single expert’s report and his oral evidence.  There is significant concern as to the mother’s ongoing capacity to provide appropriately and properly for the needs of this child, in particular the child’s emotional needs.  Her enmeshment with the child and her conduct in the context of ongoing therapy and the child’s post separation relationship with the father is indicative to the Court of overt behaviour on her part to diminish and possibly ultimately end the child’s relationship with the father.  It is difficult to view her behaviour in any other light notwithstanding the scintilla of doubt as to intent that is suggested by the single expert.  The mother has demonstrated no reflective capacity to consider the importance of the father in the child’s life and of the child having a meaningful relationship with the father.  The emotional void in the child’s life should it be absent the father is significantly damaging to the child.

15. Notwithstanding the detailed observations as to the mother’s capacity and its risk to the child in the Reasons for Judgment, it has taken the mother only a few occasions to demonstrate that she has not reflected on those observations and findings and attempt to self-regulate her responses and actions accordingly.

16. Her actions have had a significant effect on the child who now expresses reservations as to his relationship with the mother. 

Interim Parenting

1. In Goode & Goode [2006] FamCA 1346, the Full Court set out the pathway to be followed in saying that the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and must have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

2. Since Goode (supra), s 69ZL of the Family Law Act 1975 (Cth) (“the Act”) has been enacted which provides that a court may give reasons in short form for a decision it makes in relation to an interim parenting order. In relation to the interim parenting orders, these are the Court’s short form reasons for decision.

3. In Marvel & Marvel[2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence in the following terms:

   120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   121.In SS & AH[2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   “In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”

   122.Later, at paragraph [100] their Honours amplified their comments and said:

   “The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”

1. In Deiter & Deiter [2011] FamCAFC 82 the Full Court was particularly concerned with the situation where the contested facts related to an assessment of risk and said at [61]:

   … Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

The Law

1. The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode [2006] FamCA 1346. The High Court in MRR v GR [2010] HCA 4 affirmed those principles.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:

   a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence [s 61DA(2)],

   b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].

6. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)]. In these proceedings a final order as to parental responsibility had been made and is not sought to be disturbed by either party.

Best Interests

The Primary Considerations: s 60CC(2)

1. The primary considerations are:

   a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

   b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. These issues were discussed in detail in the Reasons for Judgment referred to.

3. The present circumstance focuses on the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. This consideration is in itself determinative of the present application on an interim basis such that it calls for orders protective of the child.

4. The circumstances in which the child found himself in shortly after the commencement of supervised time are very concerning and reflect concerns as to the mother’s capacity clearly outlined in the primary Reasons for Judgment. Those concerns need to be addressed in circumstances where the mother herself has not sought professional help following earlier final orders that saw the child moved to the father’s primary care.  

5. Whilst the Court is presented with evidence that is not tested by cross-examination, the evidence of the therapist as to the child’s presentation after time with the mother referred to above is most concerning.

6. It is clear that the mother needs to engage meaningfully in the therapeutic pathway in and not simply seek to use it to further her agenda as to the father.

7. It is in the child’s best interests that his contact with the mother be carefully monitored by the therapist in an endeavour to overcome the child’s apprehensions as to her and to assist the mother in being more reflective as to the needs of her child and her role in the child life after final orders.

8. The circumstances above raise significant concerns as to the mother’s mental health and appropriately she is prepared to seek intervention from a treating specialist.  It is important that such intervention be able to be monitored and assessed by the Independent Children’s Lawyer and the father.

The Additional Considerations: s 60CC(3)

1. Whilst the Court in detail considered the additional considerations in the context of the earlier orders and has regard to same in this application, the need to protect the child is overwhelmingly the primary issue.

2. The child expresses reservations to the therapist as to time with the mother. Those wishes are, on the evidence available, cogently held and should be given weight.  

3. The mother’s capacity as a parent remains clearly problematic particularly where the events of 15 December 2018 are disturbingly reflective of her previous conduct.

4. It is agreed that she should seek psychiatric review and such orders will be made.

5. The Independent Children’s Lawyer supported orders that the mother’s time be supervised in a contact centre and that the mother seek psychiatric assistance, although conceding that contact centre available time would be some months away.

6. The circumstances demand that the mother’s time with the child, if any, and subject to the directions of the therapist be closely monitored in the context of therapy in the immediate future. 

7. Otherwise the child’s time as provided for in earlier final orders with the mother shall not resume, other than in the normal course of therapy until such time as a psychiatric report is to hand and considered by the parties, the Independent Children’s Lawyer and the Court.  

8. Orders will be made accordingly.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 5 March 2019.

Associate: 

Date:  5 March 2019