HABIB & IBRAHIM

[2018] FamCA 633

FAMILY COURT OF AUSTRALIA

HABIB & IBRAHIM [2018] FamCA 633

FAMILY LAW – CHILDREN – Final parenting proceedings – where child has fractured relationship with the father – where mother has enmeshed relationship with child – where mother has little reflective capacity as to the child’s relationship with the father – where the father seeks orders facilitating the child live with  him – where consideration of applicable principles – where Single Expert strongly supports child’s move to live with father -  where appropriate that there be a hiatus in the child’s time with the mother – where orders made for child to live with father.

Family Law Act 1975 (Cth)

Goode and Goode: [2006] FamCA 1346
Mazorski v Albright[2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v. GRR [2010] HCA 4

APPLICANT: Mr Habib

RESPONDENT: Ms Ibrahim

INDEPENDENT CHILDREN’S LAWYER: Mr Stephen Bell

FILE NUMBER: PAC 3236 of 2016

DATE DELIVERED:  19 July 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 26, 27, 28, 29 March 2018, 17 and 18 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom

SOLICITOR FOR THE APPLICANT: Godden Lawyers

COUNSEL FOR THE RESPONDENT: Ms Clifford

SOLICITOR FOR THE RESPONDENT: Karras Partners Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Snelling

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

Orders

1. That all previous parenting orders in relation to the child X born … 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 10am to 2pm 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 10am to 6pm;

   (c)       thereafter for a period of six (6) months each alternate weekend from 10am Saturday to 6pm 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 6pm 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 10am 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 10am on that day to the commencement of school the following day or 10am the following day if a non-school day;

   (iii)on the child’s birthday from 3pm to 8pm 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 3pm to 8pm;

   (iv)on the mother’s birthday from the conclusion of school to 8pm if a school day or from 10am to 6pm 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 8pm if a school day or from 10am to 6pm 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 6pm on the mid-point Saturday in odd-numbered years and the second week commencing at 6pm on the mid-point Saturday to 5pm 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 9am on the first Saturday in January to 6pm 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 m 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.

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. The application for determination is the father’s application for parenting orders in relation to the child X born in 2009 and the mother’s response to that application.

2. Both parents seek that the child live with them in circumstances where the child’s relationship with the father has been in abeyance since April 2016.

3. In his Amended Initiating Application filed 9 February 2018 the father sought orders that in summary provided for:

   a)all prior parenting orders in relation to the child to be dismissed;

   b)that the father have sole parental responsibility for the child whilst having an obligation to consult the mother;

   c)that the father facilitate the child engaging with a clinical psychologist for the purposes of therapeutic counselling and that the psychologist be provided a copy of the single expert’s report;

   d)that the child shall live with the father commencing forthwith noting that the father may choose to have the child live at first with the paternal aunt Ms B;

   e)that the child spend time with the mother commencing at the expiration of a period of 10 weeks from the date of orders and then for a period of not less than 10 weeks each Sunday from 10am to 2pm with such time to be supervised, then for a period of not less than three months each Sunday from 10am until 6pm and thereafter each alternate weekend from 10am Saturday until 6pm Sunday;

   f)that the child spend additional time with the mother on certain specific days and as otherwise agreed between the parties in writing;

   g)that the mother be restrained by injunction from attending within 100m of the child’s school whilst the child is in attendance at that school unless otherwise provided for in orders or agreed between the parties in writing;

   h)that from the commencement of unsupervised time the mother may attend at school for those events to which parents are usually invited;

   i)that changeovers during the period of supervision be facilitated by the supervisor and thereafter with the father or his nominee delivering the child to the mother’s residence at the commencement of time with the mother and the mother or her nominee returning the child to the father’s residence at the conclusion of such time;

   j)that the mother and father keep each other informed of any serious illness or injury suffered by the child including details of any treating health professional and the whereabouts of the child;

   k)that the father ensure that the child continues to attend upon Dr E in accordance with that doctor’s recommendations;

   l)that the father be at liberty to provide the single expert’s report and this Court’s Reasons for Judgement to any health professional or counsellor involved with the child and the child school;

   m)that the mother be restrained from contacting the child and spending time with the child at home, at school or in any other place or by any other method other than in accordance with these orders;

   n)that the parties be at liberty to correspond by email as to all issues relevant to the child;

   o)that the parties be restrained from showing any material used or filed or proposed for these proceedings to the child or allowing any other person to do so save as provided for in these orders;

   p)that the parties use their best endeavours to ensure that the time the child shall spend with the mother aligns with time that the child F spends in the home of the mother; and

   q)that the mother and father be restrained by injunction from removing or attempting to remove the child from the Commonwealth of Australia and that the child be placed on the airport watch list.

4. The mother in her Amended Response filed 21 February 2018 sought orders in summary that provided:

   a)that the mother and father have equal shared parental responsibility for the child;

   b)that the child live with the mother;

   c)that the child spend time with the father as agreed between the mother and father having regard to the recommendations of the child’s treating therapist but failing agreement as follows:

   i)for two months following the date of orders each alternate Saturday 12pm to 3pm in the company of the mother, Mr H and F (if possible) at G Park;

   ii)thereafter for two months each alternate Saturday 12pm to 3pm in the company of Mr H and F (if possible) at G Park;

   iii)thereafter for two months each alternate Sunday 12pm to 3pm;

   iv)thereafter for three months each alternate Sunday 11am to 5pm;

   v)thereafter each alternate Sunday 11am to 7pm and 9am to 5pm each Monday and Wednesday and Friday of the Terms 1, 2 and 3 school holidays and as agreed in the Christmas holidays and on special occasions;

   d)that the mother ensure the child attend upon Dr J or another agreed therapist and the parties attend on the therapist as requested and each pay half the costs of the therapist;

   e)that the mother encourage the child’s relationship with the father and encourage the child to refer to the father as “Dad” and to refer to her partner in terms other than “Dad”;

   f)that the mother be permitted to travel overseas with the child and the father be restrained from placing the child on the Family Watch List.

Context

1. 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.

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

3. The mother and father married in 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.

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

5. The mother met her new partner, Mr H, in mid-2013 and commenced a defacto relationship with him in October 2014. They married in 2017. They live in rented accommodation at Suburb CC. 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.

6. Subsequent to the commencement of the parties’ cohabitation in Australia the father facilitated the mother’s return to Country K occasionally.  The mother, to his observation, had some difficulty settling in Australia as she had limited English skills and was to some extent socially isolated.

7. The parties travelled to Country K when the mother was pregnant with the child. In Country K she was hospitalised and following her discharge the father returned to Australia with the mother some three or four weeks later.

8. The father asserts that he was an involved father in respect to their new child who was born in 2009.  The father was employed in his profession six days per week.  Prior to the birth of the child he had also worked in a casual job to supplement his income.

9. Shortly prior to the birth of the child the mother had commenced some part-time work in retail.

10. The maternal grandparents stayed with the parties for a few months after the birth of the child.

11. To the father’s observation the mother was very nervous about the child’s health and well-being and became increasingly controlling about the father’s relationship with the child, not allowing the father to take the child out alone. 

12. The paternal grandmother had very limited engagement with the child.

13. In October 2009 the mother travelled with the child to Country K with the father’s consent.  She returned to Australia about eight weeks later.  On her return she made various assertions about her returning to Country K with the child and staying there for good.

14. The father says that he and the mother disagreed about aspects of the child’s upbringing.  He was not permitted to spend time with the child on his own and could only visit extended paternal family with the child in the company of the mother.

15. In December 2010 the maternal grandmother and maternal aunt stayed with the parties for a period and thereafter in early 2011 the maternal grandfather, the maternal uncle and his wife also stayed with the parties for a period of a month or so.

16. It appears that by April 2011 the parties’ relationship had deteriorated over financial issues to the point where the mother told the father that she no longer wanted him in the home.  On 24 April 2011 the father left the home but returned the following month.

17. Whilst absent from the home the father placed the child a name on the Australian Federal Police Airport Watchlist (now known as the Family Law Watchlist) having filed an application seeking parenting orders.

18. The maternal grandfather returned to Australia on 3 May 2011 and subsequently an agreement was reached that the father would withdraw his Family Court application and that the mother and child would not travel to Country K without the father’s consent.

19. On 18 May 2011 the parties reconciled with the father returning to the home, notwithstanding the mother’s assertions that there were occasions (denied by the father) when the father was aggressive and violent towards her. The mother, in contrast to her assertions as to violence, told the police on 25 May 2011 following a further argument “about money” and overseas travel that there had been no previous incidents of domestic violence and that she had no fears for the safety of herself or the child (Exh E).

20. However, the father asserts that the mother after a period became controlling once again in terms of his relationship with the child, not permitting him to have the child on his own.

21. The mother says in her oral evidence that it took a few years for her to regret the marriage. She viewed the father as a “typical Middle Eastern man”. The parties’ relationship, it appears, continued to deteriorate. In particular, asserts the mother, over financial issues and in March 2012 the mother informed the father that “I’ve done my research, in Australia the mother takes full custody of the child and I will be able to determine when and what days you spend with [the child]”.

1. The father became concerned that the mother would seek to return to Country K with the child and in May 2012 the child was once again placed on the Airport Watchlist.

2. The parties finally separated on 18 May 2012 with the father moving to his parents’ home in Suburb L where he resided until May 2013 and the mother obtaining accommodation at Suburb M.

3. Subsequent to separation the father spent time with the child by agreement. The mother asserts the father spent time with the child several times per week, although the mother reports some separation anxiety in the child. The father asserts he spent time with the child on only three occasions in the mother’s presence before interim orders.

Federal Circuit Court Proceedings

1. The father commenced parenting proceedings in the Federal Circuit Court of Australia in early June 2012. 

2. On 10 July 2012 by consent interim orders were made that in summary provided:

   a)that the mother and father have equal shared parental responsibility for the child;

   b)that the child live with the mother when not living with the father;

   c)that the child live with the father each alternate Saturday between 10am and 6pm and each alternate Sunday between 10am and 6pm, each Tuesday between 4pm and 7pm, and on specific occasions and otherwise as agreed between the mother and father;

   d)that the child’s name remain on the Airport Watchlist; and

   e)that within seven days the father deliver to the Registrar of the court the child’s Country K and Australian passports and that both parties be restrained from making any application for a further passport for the child from Australia or Country K.

3. An order for the preparation of the Family Report was made on 14 September 2012 with proceedings then adjourned for further directions to 10 May 2013.

4. To the father’s observation the mother was less than encouraging of his ongoing relationship with the child in the context of these interim orders.  He complains the changeovers were difficult with the child sometimes tearful or clinging to the mother.  The mother, he says, did not attempt to calm the child or encourage the child to go with the father. The mother acknowledges that she would hold the child at changeovers and the child would get upset. The mother perceives that at this time the child had separation anxiety and deposes that “it was hard for the child to understand he was going to his father and I would not be there”.

5. Notwithstanding, when the child was with the father he would calm down within minutes and enjoyed his time with the father.

6. The mother asserts that the child was often exposed to arguments between the parties, although this improved when she was accompanied to contact changeovers by Mr H from late 2015. The child, she says, became more resistant to time with the father, on occasions being returned early by the father.

7. Yet when the father would collect the child directly from day care he would run to the father and appear to be excited to see him.

8. The mother and father were able to implement some changes to the interim orders such that the father spent time with the child each Thursday rather than Tuesday and each Sunday as the mother had commenced full-time work.

The first family report

1. On 28 February 2013 a family report was released to the parties (Exh F).  The report observes that:

   Recently the parents made some mutual alterations to the orders, to fit in with the mother’s employment requirements.  Namely, the mid week visits have been moved to Thursdays and the alternate Saturdays dropped.  [The father] now spends time with [the child] every Sunday from 9:30am to 7pm and [the mother] shares the Sunday transport.

2. It is clear from the report that the father maintained his concerns about the mother seeking to return to Country K.  Otherwise the father’s concerns in relation to the mother making it “very difficult for him to see [the child] after they parted, and [demanding] she be present at all times” are reflected in the report.  The father reported at the time that he considered the mother to be “overprotective” but that “she got that from her family of origin”.

3. The mother complained to the family reporter of the father’s angry outbursts and personal criticisms of her and her family.  The mother reported that she imposed contact supervision on the father’s time with the child because she was concerned “for the boy’s state of mind, claiming he had witnessed [the father’s] angry outbursts at her, and initially was apprehensive with [the father]”.  The mother agreed that the child was now looking forward to seeing his father, having overcome his fear.  The mother proposed that overnight stays commenced when the child was five years of age.

4. In observation the family reporter noted “when [the child] saw his father, he greeted him warmly, without any noticeable apprehension, and spontaneously interacted with him”.

The First Final Orders and thereafter

1. Subsequent to the release of the first family report final Consent Orders as to parenting were made on 6 May 2013 that in summary provided:

   a)that the mother and father have equal shared parental responsibility for the child;

   b)that the child lived with the mother for all periods of time when he does not live with the father;

   c)that the child live with the father in a graduated arrangement that:

   i)provided for the interim arrangements to continue until the child turned five then alternate weekends from 10am Saturday until 6pm Sunday and from 5pm to 8pm each alternate Thursday and on each other Thursday from after child-care/school to before child-care/school the next day, on special occasions as provided for and for such other periods as the parties may agree;

   ii)provided for alternate weekends to change when the child turned seven to be from 7pm Friday until Sunday and from after school Wednesday until before school Friday each alternate week, on special occasions as provided for and for such other periods as the parties may agree; and

   iii)for one half of school holidays commencing when the child started school;

   d)that should either parent travel overseas the child shall live with the other parent during such period; and

   e)that the child’s name remain on the Airport Watchlist pending further order.

2. However, as a consequence of subsequent events it appears that these final orders were born more of hope than from experience.

3. Somewhat coincidentally difficulties began to emerge at a time after the mother had commenced a new relationship with Mr H as referred to below.

4. The mother asserts the child became increasingly anxious and distressed at changeovers. Such is indicative of separation anxiety.

The Present Application

1. On 14 July 2016 the father filed his present application.

2. On 22 September 2016 an Independent Children’s Lawyer (“ICL”) was appointed to represent the child’s interests.

3. On 26 October 2016 interim parenting issues were listed for hearing and orders and notations were made by consent as follows:

   1.        That the Orders 3 and 4 dated 6 May 2013 be suspended.

   2.        That the child of the marriage namely [X] born … 2009 ("herein referred to as "the child') spend time with the father at such time and dates as directed by the child’s therapist [Dr J] (“the therapist”) and the father shall not attend the child’s school without the prior recommendation of [Dr J].

   2A.     That the father shall supply to the school and the mother a copy of any email recommendation from [Dr J] as to the father’s attendance at school not less than 48 hours prior to his attending school, or the commencement of the father’s regular attendances at school.

   3.        That the mother ensure the attendance of the child upon [Dr J] as the therapist requests.

   4.        That the father attends upon [Dr J] as the therapist requests.

   4A.     That the parties shall each pay half the costs of [Dr J’s] therapy for the child.

   5.        That the mother do all things so as to encourage the redevelopment of the relationship between the child and the father.

   6.        That the parties attend upon [Dr E] for review of the therapy no later than 24 April 2017.

   Notation:       

   [The child] is due to attend upon [Dr E] for review of his medication on 2 February 2017.

   7.        That the father and mother comply with the reasonable directions of [Dr J] and [Dr E].

   8.        That the mother is restrained from changing the child’s enrolment from [Suburb N] Public School.

   9.        That without admission the mother will do all things necessary to encourage the child to refer to his father as “dad” rather than “[Father’s first name]” and shall do all things necessary to encourage the child to refer to [Mr H] in terms other than “dad”.

   10.      That pursuant to Rule 15.45 of the Family Court Rules 2004 [Dr O] (the Single Expert) be appointed as a Single Expert Witness to enquire into and report upon matters relating to the welfare of [X] born on … 2009.

   …

   15.      These proceedings shall be relisted upon release of the Expert’s report.

   16.      Leave to relist on 7 days’ notice by arrangement with the Registrar as to implementation of these orders.

   17.      The Independent Children’s Lawyer shall supply a copy of any [Dr E] report to [Dr J] with a copy of these orders.

   18.      Neither party shall discuss these proceedings with the child nor in the presence or hearing of the child other than in the presence of [Dr J] for the purposes of the child’s therapy.

4. By reason of the delay in obtaining a report from Dr O his appointment was discharged on 27 July 2017 and Dr D was appointed as the Single Expert.

5. On 30 October 2017 the Single Expert report by Dr D was released.

6. Trial directions were made on 10 November 2017 with a compliance listing of 25 January 2018. The parties sought further time to file and compliance was adjourned to 22 February 2018 with the matter fixed for hearing to commence 26 March 2018.

Circumstances subsequent o the First Final Orders

1. The father and his extended family took the child to the Region P, NSW for the weekend of 5 and 6 October 2013.  To the father’s observation the child enjoyed the trip away.  A further trip to the Region P was planned some months later and the father and child spoke of the trip often.  Yet a few days before the planned second weekend to the Region P the child expressed his reluctance to go.  The father was somewhat puzzled but the mother confirmed the child’s reluctance by saying “no, he doesn’t want to go”.  The mother acknowledges that she discussed the trip with the child and that on reflection it was “bad for the child to be involved” in the issue. The child did not go says the mother “because he did not want to”.

2. That the child, then only four years of age, was able to dictate his time with his father is perhaps reflective of what subsequently transpired. 

3. From November 2013 until the child commenced school in 2015 the father collected the child from day care once a week at 4:30pm and would spend time with the child, give him dinner and then return him to the mother’s home.  On his Sundays the father would frequently spend time with his family or go on outings with the child.  The child appeared to the father to have a close relationship with the paternal aunt’s children.

Commencement of overnight time: April 2014

1. In April 2014 the child was to commence spending overnight time with the father in the terms of the final orders.  The weekend of 12 April 2014 was the first occasion of overnight time and the father arranged for the child’s cousins to have a sleepover at his home.  This was the last occasion the father would have overnight time.

2. The mother says in her oral evidence that after this first overnight visit when she picked up the child he vomited in the car and in the carpark and was in a very bad condition. Curiously there is no mention of this by either the mother or the child in the notes from the psychologist, Dr J, that the child subsequently began seeing. The mother at a later meeting with this psychologist spoke for the child about him not wanting to see the father in the forthcoming school holidays. This was then repeated by the child in a fashion that caused Dr J to have concerns that the child may have been voicing this opinion “because it was what his mother wanted him to say”. 

3. Subsequently on 24 April 2014 the father says that the mother telephoned and said “the child does not want to stay, I’m not going to bring him if he has to stay”.  The mother says the child complained that on the first overnight visit two weeks earlier the father forgot to put water out for him overnight and that his music box had run out of batteries.

4. The next morning the mother delivered the child to the father’s home, the child appeared teary and his eyes were glassy and red.  The mother said to the father in front of the child “if he wants to come home you call me”.

5. That day the child played with his cousins and was observed by the father having a good time, smiling and laughing often.  Approaching bedtime at about 9pm child appeared to become whingey and anxious and repeatedly asked to be returned to the mother: “I want to go back and Mum said I could go back”.  The father, not wishing to push the issue, called the mother who collected the child at about 9:30pm. The mother provided a detailed complaint about this visit to Dr J in the presence of the child including the assertion that when she attended to pick up the child he did not want to leave but wanted to stay and play longer. Curiously again, she reports to Dr J that after being picked up the child “burst into tears” and complained about the father.

6. To the father’s observation changeovers for his time with the child subsequently became increasingly difficult and more protracted.  The mother would be carrying the child and changeovers would last longer and longer and in the end the father would invite the mother inside. However the child, to the father’s observation, was always conscious of the mother’s presence. In contrast, changeovers at school in the absence of the mother were not an issue.

7. The child continued to mostly, the father estimates about 65 per cent of the time, spend Sundays and Thursdays with the father from April 2014 to April 2016.

8. The mother represented to the father that she was working on the issue of the child spending overnight time with him.  A text message from the mother to the father on 5 July 2014 demonstrates her inappropriate engagement of the child, still only five years of age, in the conflict.

9. In October 2014 the father sought professional advice as to his difficulties in regard to time, particularly overnight time, with his son.  He was told to be patient. He suggested to the mother that they attend upon a family psychologist for assistance.  She refused.  His time continued each Sunday and Thursday afternoons.

10. The mother says that the child had difficulties separating from her when he commenced school in February 2015. This continued for about six months.

11. In April 2015 the mother, notwithstanding the terms of final parenting orders, informed the father that she had booked tickets for herself and the child to travel to Country K.  In early May 2015 the father made it clear to the mother that there were orders in place about overseas travel.  The mother’s response was to say “don’t piss me off otherwise I’ll make sure you never see your son again”.

12. In early May 2015 the father says that he and mother had agreed that the child would spend time with him on a Saturday night to attend a family dinner for his cousin’s birthday and that the child would be returned to the mother after the dinner.  On the morning of the family dinner the father contacted the mother to make arrangements to collect the child.  The mother said “[the child] told me he said to you he is not coming … anyway he didn’t want to come and now is at his friends party”.  Thereafter followed text messages between the mother and father that demonstrate that the mother had little capacity to reflect upon the need for the child to have a relationship with the father.

13. The child was not made available for his time with the father on the weekend of 16 May 2015 as it appears that the mother had accepted an invitation to a friend’s party.  In part she said to the father:

    It’s his friend’s party. What do you think of [the child] becoming a monk just because he should see you on Sunday????  You’ve forgotten that [the child] is not 3 anymore and sometimes he makes his own decisions and that has nothing to do with me.  No matter how hard you try to show me in a bad light, you can’t because I always put [the child] first.

14. On 28 May 2015 the father collected the child from school in company with his parents.  The child became upset and said to the father “mummy told me I shouldn’t see my grandparents”.  Nevertheless the child enjoyed his time with the father and his grandparents.  The child repeated his complaint the following Thursday but again enjoyed time with the father and his grandparents.

15. In mid-June 2015 the father attempted to make arrangements to attend a social bingo night with children and parents from the child’s class.  The mother informed the father that “I already asked [the child] … he doesn’t want to go”.  The father later inquired of the child why he didn’t want to go and he informed the father that the mother had told him that it was going to be all girls.

16. Later in June the father respectfully proposed to the mother that the child be enrolled in an after-school sports program that he could engage with.  The mother in an email tirade on 24 June 2015 refused and informed the father:

    At anytime, I express that the court order is not in [the child’s] interest, I can change it and I have enough evidence to prove that, which I don’t think that would be in your interest at all!  So this must be the last time you refer to the court order…

17. The mother further asserted “No one intends to go to war with you if you know your limits … only a cruel father can take this from his son.” In oral evidence she suggested that the father was always going to take the child away from her.

18. Her response was less than insightful and demonstrated a marked lack of reflective capacity as to the real needs of her child. Indeed she clearly placed the relationship of the child with his stepbrother (F) over that of the child and his father.

19. In September 2015 the father moved to Suburb Q to a two bedroom apartment.  He has a bedroom in his apartment for the child, that has been painted in a colour chosen by the child and the room has been decorated with a special car bed that displayed the child’s collection of toy cars in the room.  In the following weeks the child informed the father that the mother had purchased him a “Ferrari bed, it cost $1100 and it lights up”.

20. In October 2015 the parties agreed to swap the child’s day with the father from Sunday to Saturday 16 November 2015 as the maternal grandmother was arriving from Country K late Saturday night. 

21. Yet on Friday 13 November the mother informed the father that he would not be having the child on Saturday as agreed as she and the child were going to the Region R.  The father protested to which the mother responded by text as follows:  

    Add this to your records if you like… If you call me or text me one more time to disturb me I would make a complaint against you to the police for harassment. You must understand at some point (what) ”STAY AWAY FROM ME” (means).  “Enough is enough.

    The tenor of the mother’s texts to the father are threatening and reflect her view that the decisions as to the child spending time with the father is a matter for the child, then aged six, solely to make.

22. The mother’s actions and responses clearly and inappropriately placed the child in the midst of parental conflict and devolved to the child inappropriate decision making responsibilities.

23. In November 2015 the father endeavoured to engage with the mother as to the recommencement of the child’s overnight time with him.  On Thursday 26 November on collecting the child from school as to overnight time the child said “do I have to do?  Mummy says I do not have to do if I do not want to”.  On 29 November the mother spoke to the father and among other things said:

    [The child] has been stressed and crying since Thursday night… He does not feel secure with you.  I do not believe this approach is going to help him.  I’m not going to agree with you and happy to fight it all the way to the end.

1. On 23 December 2015 the father requested additional time with the child to celebrate his aunt’s birthday.  The mother replied “let me check and I’ll asked [the child] to and get back to you….  I’m asking him because he is not animal… He is a human and can make a decision.”  The child did not attend the birthday event.

2. The mother and father met over coffee on 9 February 2016.  The mother repeated her wish to travel to Country K.  They agreed to seek the assistance of a therapist for the child.  The mother said to the father:

   If I can’t convince [the child] to stay overnight then what we’ll do is you can always pick [the child] up, it doesn’t have to be our agreed days as long as you give me some notice. 

3. However notwithstanding the father’s requests no such additional time was ever agreed to by the mother who often responded “I have to check with [the child]” to the father’s requests.

2016

1. The mother in February 2016 obtained a mental health referral of the child from the child’s GP Dr S, who has prescribed the child Luvox for anxiety.  She subsequently informed the father that the child was to see a Dr J, psychologist (referred to above).

2. Early in his 2016 school year at Suburb N Public School the child asked the father if he wanted to see his proposed new school, the T School, Suburb U.  The father had not agreed to the child changing schools from Suburb N Public School to this new school but the mother and her new partner Mr H had made arrangements to enrol the child in the school with Mr H signing enrolment forms as the child’s father/guardian/carer. Mr H suggests that he had done so “because he was [Christian]”. He and the mother would pay the fees as “for our children we do it”.

3. The mother asserts that the father was informed as to the schooling proposal beforehand. Yet without agreement from him the mother put in the enrolment application “to hold a position” for the child as she was “running out of time”. Her assertion in oral evidence is in conflict with what she told Dr J that she had done so without the father’s knowledge.

4. During this period changeovers continued to be difficult and protracted.  On occasions the mother would inform the father at changeover that “[the child] wants to stay home today… Tell daddy you want to stay home.” 

Dr J Psychologist early 2016 and thereafter

1. The mother engaged the child unilaterally with Dr J in February 2016.

2. Notwithstanding ongoing difficulties the child says the father enjoyed an outing on 24 April 2016 with his grandparents and then at the father’s home with other family (Exh G).

3. After the child enjoyed time with his grandparents and extended family the mother collected him from the father’s home.  A short time later the mother rang the father and complained that the child had seen his grandparents when he expressed a wish not to do so to his father.  Subsequently the mother forwarded a text message to the father that included the following:

   Upon life of my only son, either you change your attitude towards [the child] or what shouldn’t happen, will happen…

   The decision is yours.  [The child] is not a rootless so that if he decides not to go with you to a place, then he’d been left at home alone….!!!  I turned the world upside down for my child’s tears and the one who should pay a heavy penalty for it is you… it’s your call….

4. The father’s time with the child on Sundays ceased in April 2016. On 26 April 2016 the mother reported to Dr J that the child was not seeing his father. Her manipulation of the child is clearly evident from Dr J’s notes of that day.

5. The father was informed after the child had already seen Dr J and the father did not see Dr J until May 2016 by which time she had already seen the child nine times. Regrettably the mother acknowledges that the child was mostly present in the room sitting on her lap when she was providing to Dr J a history of or expressing her concerns about the child’s fears and anxiety. The child most probably overheard the mother’s recitations to Dr J. 

6. From Dr J’s early notes (Exh I) it is clear that the child had a significantly enmeshed relationship with the mother including reluctance and refusal to separate from the mother during consultations, looking to the mother for clues, the mother speaking over and for the child, the mother providing history particularly as to the child’s alleged anxieties and fears in the presence of the child.  The child’s reluctance to separate from her was readily conceded by the mother.

7. The child presented to Dr J with various fears and anxieties not evident in the context of the earlier family report. These notably included being lost, kidnapped or separated from his mother. The child was reported as being unable to sleep in his own bed, co-sleeping with the mother and reliant on the mother’s presence to eat meals.

8. The child also expressed concerns as to when he was with his father, some revealing a startling level of empowerment in the child including the child seeking to determine his time with the father and what occurs during such time. The child at this point in time was only seven years of age.

9. Dr J recommended various strategies to address the child’s presentation including:

   a)equipping the child with tools to sleep in his own bed and eat without assistance from the mother;

   b)supporting the mother in encouraging the child’ independence and avoiding the reinforcement of his anxieties;

   c)re-establishing weekly time for the child with the father including overnight time; and

   d)assisting the father in understanding and dealing with the child’s anxiety.

10. On Dr J’s recommendation the father continued to attend the child’s school until October 2016.

The father’s attendances at school

1. On 27 April 2016 the mother informed the father that he was not to pick the child up from school. She says this was because of the child’s anxiety.

2. On 28 April 2016 the mother informed the father that she had told the child’s school that the father could not pick up the child without her permission, this notwithstanding the terms of final court orders.  That day the father attended at the school to pick up the child in accordance with orders to be told that the mother had collected the child from school at 2pm.

3. On 5 May 2016 the father attended at the child’s school in accordance with orders.  The father was informed that the child had not attended school that day. 

4. On 10 May 2016 the father again attended at the child’s school to enquire as to the reason for the child’s previous absence.  The maternal grandfather was present as was the mother.  The mother said to the father “what are you doing here?  [The child] gets anxious, he’s not going to be happy when he sees you here”.  When the child appeared the mother ran over to the child and began fussing at him saying “that’s okay [X], daddy is just here to talk to Ms V”.  The child began to cry.

5. On 11 May 2016 the mother, having facilitated a recording on her mobile phone, forwarded to the father a voice recording of the child’s voice saying words to the effect of “Hi Dad, I did not change my mind, I don’t want you to come to school tomorrow, I don’t want to come with you tomorrow, don’t make me upset. Thanks bye.”  The father says it appeared to him as though the child was reading the message. A consideration of Exhibit G in part comprising the recording suggests that possibility.

6. On 12 May 2016 the father attended at the child’s school in accordance with orders.  He again was informed that the mother had collected the child 2pm.  The Principal expressed to the father concern as to the child’s absences from school since March 2016 and that the mother had been spoken to in relation to same. 

7. On 14 May 2016 the mother informed the father that the child would not be spending further time with him.

8. On 17 May 2016 it was communicated to the father that prior to the mother assisting the father in seeing the child she had three requests being changing the court orders so that there would be no overnight time at all, obtaining passports so that she and the child could travel overseas and go to Country K and changing court orders so that she has “full custody”.

9. On 26 May 2016 the father again attended at the child’s school to be informed that the child had not attended school that day.  Subsequently the mother forwarded to the father text messages informing him that the child would not be spending time with him and that he was not to attend at the school.

10. The father continued to attend at the child’s school in an endeavour to see his son on the advice of Dr J until further orders in October 2016. The mother, in what she says was an innocent clarification for the child, said to him “Your father is not going to kidnap you. He does not want to take you from me, he just wants to see you.” Her unfortunate choice of words can be seen as either an innocent error or indeed a malicious attempt to escalate the child’s alleged concerns.

Ongoing “therapy”

1. On 1 June 2016 the father was informed by the mother’s solicitors that the child had seen Dr E, psychiatrist.  The father had not been consulted.

2. On 17 May 2016 the mother attended on Dr J in company with the child. The notes (Exh I) present an alarming picture of enmeshment and coaching of the child by the mother. The next day Dr J reported to the child’s referring GP “in confidence, I suspect that [Ms Ibrahim] may be coaching [the child] before our sessions to say things against his father, as his statements often appear rehearsed”.

3. On 16 June 2016, following another consultation with the mother and child on 14 June 2016 (during which the child was clearly aware of the mother’s solicitors name, that the father might go to gaol if he did not listen to the solicitor and the child’s separation issues as perceived by the mother) Dr J again reported her concerns to the child’s general practitioner Dr S as follows:

   I am concerned that [the mother] is not facilitating treatment with [the child] when supporting his relationship with his father.  In our sessions, [the child] says things that do not seem appropriate for a seven-year-old as though is being coached.  He has also lost a further 1.5 kg despite some initial gains.  [The mother] has had conflict with his school principal who has raised her concerns about [the child] and his relationship with his father.  [Mr Habib] has also been into the school to speak with the school principal.  [The mother] informed me that she is going to move [the child] to a different school at the end of the year – [the father] is unaware of this.

4. The mother’s preparing of the child in anticipation of seeing Dr E was clearly and concerning obvious in a consultation with Dr J on 28 June 2016. Indeed it prompted a warning from Dr J to the mother about such behaviour. The mother’s empowerment of the child is again blatantly obvious. Subsequently, the mother reported to Dr J’s office on 8 July 2016 that they had seen Dr E and the child had “said what he has to say”.

5. Overall the mother agrees that engagement with Dr J was futile saying “she could not achieve anything”.

6. The child’s school attendances are concerning. In 2016 the child missed 24 whole days at school and was partially absent on another 11 days.  The attendance records (Exh P) suggests a sickly and reluctant child pandered to by his mother with the mother conceding that the child was resistant and had “spurious” illnesses.

7. The child co-slept in the same bed with the mother she says until March 2015 with her partner sleeping in a separate room.

8. The mother concedes that the child had also had “time off” school in the 2017 year being “sick” for a number of days. Yet the mother cannot identify aspects of the child’s health that she asserts causes him to be too sick to attend school such as what he is allergic to or what causes him to vomit. When the mother was pressed she suggested that she had obtained a referral to a paediatric specialist a week before the final trial having awaited the outcome of blood tests where the child was tested for coeliac disease. The test was negative.

9. The mother, rejected a suggestion that she had sought to treat the child herself. Her protestations as to the sickly nature of the child over a number of years and her inactivity in seeking appropriate specialist advice until the last minute before trial raise concerns for the child in the mother’s care.

10. The mother conceded in her oral evidence that some aspects of the child’s anxiety could be because of her attitude. Yet the child seemed to enjoy a good relationship with Mr H’s extended family and was able to separate from the mother into their care on occasion.  Apart from one night only with the father the child has never slept apart from the mother. Yet the mother has not sought therapeutic assistance for herself such as a Parenting after Separation Course in circumstances where she concedes that since June 2016 there has been no progress as to the child’s relationship with the father.

11. In her oral evidence the mother says that she is happy that the child is getting over some anxieties that she was able to list without hesitation but unfortunately as to the father she can’t do anything as the child cannot “forgive the father”.

12. There appears to be no question that the child views Mr H as his father figure. Issues have arisen over the child referring to Mr H as “Dad”. Interim orders were made as to same on 26 October 2016. In oral evidence the mother said she told the child that he could call Mr H “Papa” despite the term meaning “dad”. The mother seems satisfied that she can pay only lip service to her obligation under the orders with the issue still being referred with concern by Dr J in September 2017.

Dr E Report 6 July 2016

1. On the recommendation of Dr J and the child’s GP Dr S the child was referred to Dr E, psychiatrist. Dr E wrote a reporting letter to the child’s GP on 6 July 2016.

2. Dr E reported as to the child:

   … [that] he enjoyed soccer.  He was happy with school and got on well with his teacher and was doing well with his subjects and had good friends.  He described a good relationship with his mother and with [Mr H].  I asked about his father.  He explained that his father promised not to take him to [W Park] but then took him anyway.  He felt his father forced him and broke the promise.  He wishes that he could have a good father and doesn’t believe that his father will be good.  He at the moment has decided that he doesn’t really want to see his father.

3. The mother provided a history to Dr E as she perceived it including a litany of complaints about the father and the child concerns and anxieties.

4. Dr E concluded his report as follows:

   I believe [the child] has an adjustment disorder with anxiety secondary to the stress of coping with the parental conflict and parental concern.  I would encourage the child to continue to see the psychologist [Dr J].  In addition he should continue Luvox and increase this to 50mg.  It would be hoped that after a period of settling his anxiety may reduce enough such that at least daytime contact could be reinstated and perhaps a longer lead in to any more substantial contact.  I note that [Dr J] wants to address the issues of contact with the parents together.  I note that [Dr J] was concerned “I suspect that [Ms Ibrahim] may be coaching [the child]l before our sessions to say things against his father as his statements often appear rehearsed.  Persistent and attempting to dissuade [the mother] from pursuing full custody of [the child] and work towards a workable co-parenting arrangement for [the child]”.

5. Dr E was to review the child in three months.

6. The father continued his attendances on Dr J and on 25 August reported that the mother concerningly persisted in the child referring to him as by his first name and not “Dad”.

7. On 11 October 2016 Dr E provided a further report to the child’s GP.  The child attended for review in company with the mother and the mother’s partner Mr H.

8. The child reported that he was doing well at school and enjoying himself and his main concern was being separated from his mother.  He did have fears that he could be taken away.

9. The mother reported that the child had not had regular contact with the father for the past three months, although the father attended at school on Thursdays with the principal asking the child if he wished to see the father and if not the principal would not facilitate contact.  The mother reported that the child continued to see Dr J.

10. Dr E reported:

    The major issue for [the child] is his anxiety and fear of not seeing his mother.  Therefore he has constructed a fear about his father that his father could potentially remove him from his mother.  This has a revolving problem which creates anxiety about seeing the father and then creates problems for the contact with the father which then creates difficulties for the father as well.  I believe that gradual introduction of contact with the father perhaps with [Dr J’s] help would be helpful … The key issue here is the child’s separation anxiety … Ultimately I would support a healthy strong relationship between [the child] and the father being achieved but this needs to be done gradually over the next 6 – 12 months at a rate that [the child’s] anxiety can cope with.

11. Concerninly Dr E noted:

    The other possible problem is giving [the child] too much decision-making power such that he doesn’t want to have any anxiety and refuses to see the father at all and so the process can’t be initiated.  Therefore it is important that a therapeutic introduction of the father is managed through [Dr J] and that the mother and stepfather support this process.

12. Following Dr E’s report further interim orders were made by consent on 26 October 2016 as referred to above. 

The continuing engagement of Dr J and Dr E

1. Subsequent to the further interim orders Dr J made arrangements for the father to have planned time with the child on 20 November 2016 at a park with another paternal family member present and that such arrangement would then continue on a weekly basis for about four weeks with thereafter Thursday afternoon time commencing and then a gradual build-up of time to weekend time. 

2. It was part of Dr J’s proposal that the mother give the child a reason for her not being present and that the child be brought to the contact by the mother’s partner Mr H.  Regrettably the mother informed Dr J that she would be at the first meeting notwithstanding Dr J recommendation.

3. On 18 November 2016 the father was informed by Dr J that the child would not be attending on 20 November 2016 “as [the child] refused to go”.

4. Dr J then met with the mother and child on 29 November 2016.  The father spoke to Dr J on 30 November 2016 and Dr J reported to the father:

   He is still expressing that he is unwilling to [see the father] but I am hopeful with some encouragement we’ll be able to start. [The mother] has agreed to a first session on 15 December in my office … I am concerned.  At the end of the appointment I mentioned the fact that they will be meeting with [Dr E] soon, and [the mother] said to [the child], “Let’s practice what we’ll say to [Dr E]”.  I am concerned that she is coaching [the child] in what to say to me and to [Dr E]. 

5. On 15 December the father attended on Dr J.  The child and the mother attended.  In the reception area the father was able to speak to the child who appeared happy to engage with him.  The father noted that the child repeatedly looked at the mother and then stop smiling.  The child remained close to the mother and the mother held the child hand during the course of the father’s conversation with the child.  The child after a few minutes looked at the mother and said “I want to go”.  With that the mother left Dr J’s premises.

6. A further appointment was scheduled for 22 December 2016.  It was cancelled by the mother.  A further appointment was scheduled for 5 January 2017.  When the father arrived the mother and child were already inside with Dr J.  After about half an hour the father saw the mother and the child leaving.  The child appeared visibly distressed to the father who approached the child.  The child whispered to him “I don’t want to see you any more”.  The father subsequently spoke to Dr J who expressed to him her concerns as follows:

   [The mother] is very powerful and she has all this time with [the child] to manipulate him and neutralise all my work whereas I only see him for 1 hour sessions every couple of weeks and that is if she does not cancel like last time … I will not give up and I do not want you to give up … I do think he is being influenced, given the language he is using.  He is being manipulated.

Conclusion

1. In all the circumstances and in the overwhelming best interests of the child as discussed above it is appropriate that orders be made substantially as sought by the ICL and the father.

2. Orders will be made accordingly.

I certify that the preceding two hundred and fifty-eight (258) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 19 July 2018.

Legal Associate:

Date:  19 July 2018