Hadid and Daneen
[2011] FamCA 635
•12 August 2011
FAMILY COURT OF AUSTRALIA
| HADID & DANEEN | [2011] FamCA 635 |
| FAMILY LAW - CHILDREN - With whom a child lives - Best interests of child – Children’s views – family violence – emotional and psychological harm |
| Family Law Act 1975 (Cth) – Part VII, s 60B, s 60CA, s 60CC, s 60CC(2), s 60CC(3), s 61C, s 61DA(1), s 61DA(2), s 61DA(4), s 65AA, s 65DAA(1), s 65DAA(2), s 65DAA(3) |
| Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 MRR v GR (2010) 42 Fam LR 531 |
| APPLICANT: | Mr Hadid |
| RESPONDENT: | Ms Daneen |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | PAC | 3015 | of | 2009 |
| DATE DELIVERED: | 12 August 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 14 & 15 February 2011 |
REPRESENTATION
| FOR THE APPLICANT: | Mr Hadid in person |
| COUNSEL FOR THE RESPONDENT: | Mr Barry |
| SOLICITOR FOR THE RESPONDENT: | JPM Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Nash |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
That the children M born … August 1997, Z born … July 1998 and K born … November 1999 (“the children”) shall live with the mother.
That the mother shall have sole parental responsibility for the children.
That the father shall spend time with all of the children as follows:
(a) On each of the children’s birthdays from 4:00 pm to 7:00 pm in the event that the day falls on a school day, or from 12:00 pm to 5:00 pm in the event that the day does not fall on a school day;
(b) From 10:00 am to 5:00 pm on the last day of Ramadan each year;
(c) At any other time in accordance with the wishes of the children.
That for the purpose of order 3, the father’s time with the children shall be in the presence of a member of the father’s family and the father shall collect the children from, and deliver the children to, the Police Station 1 at the commencement and conclusion of his time with the children.
IT IS NOTED that publication of this judgment under the pseudonym Hadid & Daneen is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3015 of 2009
| Mr Hadid |
Applicant
And
| Ms Daneen |
Respondent
REASONS FOR JUDGMENT
Introduction and applications
These are final parenting proceedings. The parties are Mr Hadid to whom I shall refer as “the father” and Ms Daneen to whom I shall refer as “the mother”. There are four children of the parties:
·MM born in April 1994 who is therefore 17 years of age;
·M born in August 1997 who is therefore 13 years of age;
·Z born in July 1998 who is therefore 13 years of age and
·K born in November 1999 who is therefore 11 years of age.
But the proceedings relate to the youngest three children. Unfortunately, the parties’ eldest child is in prison.
By way of a hand-written document headed “Final Orders Sought by Applicant Father” (Exhibit 2) the father seeks orders to the following effect:
·That the children live with him;
·That the parties have equal shared parental responsibility for the children;
·That the children spend every weekend with their mother and half of each of the school holidays;
·That he have sole responsibility for decisions regarding the religious instruction of the children and that the mother use her best endeavours to ensure that such decisions are followed when the children are with her; and
·That the children attend School 1 at Sydney Suburb 1, unless otherwise agreed between the parties.
On the other hand, the mother seeks orders to the following effect only in relation to the three youngest children:
·That she have the sole parental responsibility for the children; and
·That the children live with her.
The Independent Children’s Lawyer seeks orders to the following effect also only in relation to the three youngest children:
·That the children live with the mother and that she have sole parental responsibility for them;
·That the children spend time with their father for several hours on each child’s birthday, for several hours on the last day of Ramadan each year and otherwise in accordance with the wishes of the children;
·That any such time spent between the children and their father be in the presence of a member of the father’s family and
·That the changeovers occur at Police Station 1.
Background
The father was born in Country 1 in 1970 and he is therefore 41 years of age. The father came to Australia with his mother when he was 18 years of age.
The mother was born in Country 1 in 1977 and she is therefore 34 years of age. The mother came to Australia when she was 4 years of age.
The parties commenced cohabiting in 1992 after they underwent a form of religious marriage. Their marriage was arranged. The mother said that she had agreed to the marriage particularly because her relationship with her father had become extremely difficult for her. The mother was approximately 15 years of age and the father was approximately 22 years of age when they commenced cohabiting. They lived in the home of the father’s mother.
The parties legally married in 1998.
The marriage ran into real difficulty when the father went overseas in 2001. It would appear that on his return he suspected that the mother had been unfaithful to him.
In 2002, the paternal grandmother commenced living with the parties.
On 25 October 2002, the mother and paternal grandmother had an argument during the course of which the grandmother slapped the mother on her face and pulled her hair. Then the father also hit the mother. The children were close by in the car and they observed this violence.
The parties separated at approximately this time.
In mid December 2002, consent orders were made in the Sydney Suburb 2 Local Court to the effect that MM and Z live with the father and M and K live with the mother. These orders reflected the arrangements then in existence. It was also ordered that the children spend time with the parent with whom they were not living.
In 2003 the parties were divorced.
In April 2004, the mother filed an Application in this Court seeking a variation of the orders.
In October 2004, the mother and Mr KK underwent a religious ceremony of marriage. They have never legally married.
On 22 February 2005, consent orders were made by this Court to the effect that all children reside with their father and spend time with their mother from 5.00 pm to 7.00 pm each Monday and Wednesday and from 5.00 pm Friday to 5.00 pm each Saturday.
On 1 April 2005, MM and Z ceased spending time with their mother. The mother said that the paternal grandmother refused to allow the mother to spend time with MM.
On 15 December 2005, L was born to the mother and Mr KK.
In January 2006, the children were enrolled at School 1.
On 25 January 2008, a doctor examined K following the paternal grandmother’s concern that she had been sexually abused.
MM started to have some serious behavioural problems. In September 2008 he was expelled from School 2.
In April 2009, MM commenced living with his mother.
On 31 May 2009, M telephoned his mother and informed her that he had been thrown out of his father’s home.
On 5 June 2009, the mother collected M and K from the father to spend time with them.
On 7 June 2009, the mother did not return the children to the father. MM assaulted the mother and M. MM was asked to leave the mother’s home and an Apprehended Violence Order was made against MM for the protection of the mother, M and the mother’s sister Ms R. MM is currently in custody in the Juvenile Justice system, as indicated above.
Also on 7 June 2009, K complained to her mother that her paternal grandmother had been touching and examining her genitals. M also complained of being belted by his father.
On 8 June 2009, the police attended the mother’s home in relation to these complaints.
The mother made a notification to the Department of Community Services on 9 June 2009. The mother contacted School 1 and removed the children. The mother arranged for the children to be enrolled at local schools.
On 1 July 2009, the father filed an Application for a Recovery Order in this Court.
On 24 July 2009, the mother filed a Response seeking that M and K live with her and have supervised time with the father. The mother also filed a Notice of Abuse.
On 27 July 2009, consent orders were made which provided in effect for M and K to live with their mother and spend time with their father each Saturday. An Independent Children’s Lawyer was also appointed for M and K. Z continued to live with her father and paternal grandmother.
On 14 August 2009, orders were made that a Magellan Report be prepared and this issued on 30 September 2009.
On 8 October 2009, the father filed his current Application for Final Orders.
On 8 February 2010, a Family Report was prepared by Family Consultant Mr P.
In February 2010, the mother commenced communication with Z by Facebook and telephone.
In April 2010, the father ceased all contact with the children.
On 25 May 2010, an order was made for the appointment of the Independent Children’s Lawyer to be extended to Z.
On 31 May 2010, the mother filed an Amended Response seeking orders that she spend time with Z from 3.00pm Friday to 7.00pm Saturday.
The mother said that Z’s telephone was disconnected in June 2010.
On 2 June 2010, an order was made appointing Dr R, Psychiatrist, as single expert to prepare a Report.
On 12 July 2010, the mother visited Z with K and L and gave Z a birthday present. But later that day Z rang her mother and asked her to attend at her Aunt’s home to collect the gift because her father’s family were going to burn it.
On 17 September 2010, the mother was informed by Z’s paternal cousin Mr RR that his family wanted him to marry Z.
On 7 November 2010, Z spent time with her mother and refused to return to her father. The police attended the mother’s home to check on the child. Z has remained living with her mother since that time.
On 12 November 2010, the mother enrolled Z at School 3.
On 19 November 2010, Dr R’s report was released.
On 1 February 2011, the mother filed her Amended Response.
In January 2011, Z commenced school at School 4.
Evidence and witnesses
As indicated above the father was the applicant in the proceedings having filed an Application for Final Orders on 8 October 2009. He swore an affidavit on 26 June 2009. But that was the only evidence that he had in these proceedings.
His explanation for not filing an affidavit in chief in support of the Application for Final Orders was that his solicitor had ceased to act for him, the solicitor having filed a Notice of Ceasing to Act on 25 January 2011.
On 7 December 2010 the learned registrar had directed that these proceedings for final orders be fixed for a three day hearing on a date to be allocated. On 21 December 2010 the Court wrote to the father’s solicitors and to the mother’s solicitors informing them that the case had been listed for hearing for three days commencing on 14 February 2011. The matter was listed for telephone directions on 17 January 2011 at 4:00 pm. There was no attendance by the father that day. It was adjourned for further telephone attendance at 4:00 pm on 1 February 2011. Again there was no attendance by the father. But there is no question that the father knew that the substantive proceedings had been listed for hearing on 14 February 2011.
On 14 February 2011 the father sought an adjournment. I informed him that in my view he had had ample opportunity to prepare his case for trial and that he had no excuse for having not filed his evidence in chief.
On the other hand the mother filed her evidence in chief one day out of time, namely on 1 February 2011. She relied on her affidavit filed that day together with an affidavit by her former partner Mr KK filed on the same day as well as an affidavit sworn by her on 22 July 2009.
Because there was no evidence by the father putting matters in issue, there was no cross-examination by one party of the other. The only cross-examination was directed to Dr R the single expert.
The applicable Law in parenting proceedings
The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility for the child until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61B provides that parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in abuse of the child or family violence.
Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The meaning of “substantial and significant time” is set out in s 65DAA(3) of the Act.
The above principles have been examined in numerous authorities including the Full Court case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.
Should the presumption of equal shared parental responsibility apply?
It is submitted on behalf of the mother that the Court should order that she have the sole parental responsibility for the children. This is on the basis that the parents have a poor relationship and very poor communication. It is also on the basis that they have very different parenting styles. Examples of the latter are the fact that the father wishes the children to be returned to their former Islamic school whereas the mother has enrolled the children in secular schools. In any event it is submitted that the presumption should not apply because there are reasonable grounds to believe that the father has engaged in emotional abuse of the children and clearly there have been incidents of family violence when the children were living with their father.
This submission is supported by the independent children’s lawyer.
It is also submitted that it would not be in the best interests of the children for the presumption to apply. I shall refer to this matter again below.
Section 60CC considerations
What is in the best interests of the children needs to be considered in relation to the relevant considerations set out in s 60CC of the Act.
The primary considerations are set out in s 60CC(2) of the Act. The first of the two primary considerations is the benefit to the child of having a meaningful relationship with both of the child’s parents. The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I propose to return to my consideration of these primary considerations after I have considered the additional considerations set out in s 60CC(3) of the Act.
The relevant ones are as follows.
Section 60CC(3)(a) – Any views expressed by the child and factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
I am satisfied that each of the three children has the view that they would like to live with their mother. Firstly, each of the children has informed Dr R to this effect and, apparently, in the clearest of terms. But secondly, M and K have lived with their mother since June 2009. There has been no attempt by them to return to their father to live. In the case of Z, in my view, she has made her wishes perfectly clear by refusing to return to live in her father’s household upon taking up residence some months ago in her mother’s household.
The views of M and K remained consistent with views they had previously expressed to Mr P, the Family Consultant.
On the other hand, each of the children has informed Dr R that they do not wish to see their father at all. Dr R described the children as being “quite resolute and adamant” about this.
The children are almost 14 years of age, 13 years of age and 11 years of age as indicated above. Dr R said that Z and M are “quite mature and act on their own wishes”. Dr R said that K is still quite immature. So far as he could determine, Z had made a voluntary decision to change her residence from living with her father to living with her mother.
In my view, given the ages of the children and upon the basis of Dr R’s opinion, it is appropriate for this Court to place weight on their wishes.
Section 60CC(3)(b) – The nature of the relationship of the child with each of the child’s parents and other (significant) persons.
Dr R has formed the view that K and M have a very close, loving relationship with their mother and appear to be progressing well in her care. Dr R also has the view that there is a strong link between Z and her mother. This appears to have strengthened since Z commenced living with her mother.
This view is consistent with that expressed by Mr P in relation to M and K. He observed them at interview to “interact warmly” with their mother, their sister L and Mr KK.
Dr R in his written Report dated 10 November 2010 had described the three children as having a close, loving relationship with their father and also with their paternal grandmother. But this now appears to have changed with the children having taken such a strong opposition to having anything to do with their father.
Mr P had reported that neither M or K demonstrated “a particularly positive relationship” with their paternal grandmother.
Section 60CC(3)(c) – The willingness and ability of the child’s parents to facilitate, and encourage, a close and continuing relationship of the child with the other parent.
There are probably difficulties in the case of each parent concerning this matter.
This was a concern to Mr P who reported that the very different lifestyles in each of the households and the history of family difficulties raised real concern about the capacity of each of the parents in this regard.
In my view, it is more probable than not that the mother has been subjected to considerable verbal, emotional and psychological abuse at the hands of the father and his mother. But prior to June 2009 when M and K did not return to live with their father, the mother had shown herself to be able to return the children to their father’s care following periods of time spent by them with her. Having said this, the father has not spent any time with M and K since April 2010.
To the mother’s credit, she does support the children having some limited time with their father as proposed by the Independent Children’s Lawyer. She said that she would encourage the children to see and speak with their father.
As indicated above the father has a very poor opinion of the mother and particularly the manner in which she is raising the children. He has made it very clear to the children that he is extremely angry that they are not living with him and subscribing to the religious and cultural principles he considers essential to their welfare. Moreover, he has been somewhat threatening and intimidating towards them in voicing his views about the consequences of their lifestyle namely, that they will “go to hell”. In these circumstances one would not have confidence that the father has any real capacity to facilitate and encourage a relationship of any kind between the children and their mother. And the father appears to be supported strongly by his mother in his views.
Dr R said that he believed that the father and the paternal grandmother would find it difficult to allow the children to see their mother “in a substantial way”.
Having said this, given the ages of the children and their strong views, I would not anticipate difficulty in the children being returned to their mother following time spent with their father.
Section 60CC(3)(d) – The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person with whom he or she has been living
If the living arrangements for these children were changed from their mother’s residence to their father’s residence this would be likely to have the most serious consequences for the children. This is because, as indicated above, the children have informed Dr R in the clearest of terms that they do not wish to spend any time with their father let alone reside with him. If these children were ordered to live with their father Dr R has indicated that they are likely to act in accordance with their wishes. I infer that they would be likely to simply leave their father’s residence and return to that of their mother.
There would also be the severing of residence of the children with their sibling L.
Section 60CC(3)(e) – The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There are no geographic difficulties because both parents live in Western Sydney.
There are real practical difficulties with the children spending regular time with their father for the reasons already enunciated. They strongly wish not to do so.
However Dr R thought that the children would probably be accepting of seeing their father and spending limited time with him on special occasions such as each of the children’s birthdays and also on the last day of Ramadan. Dr R thought any greater frequency than such occasions would be likely to be met with overwhelming resistance by the children.
Section 60CC(3)(f) – The capacity of each of the child’s parents and any other person including any grandparent to provide for the needs of the child, including emotional and intellectual needs
Dr R described the mother as having “no abnormality of perception. Her affect was reactive. There was no cognitive disturbance.” Dr R said that there was no family history of psychiatric illness in the mother’s family. He said that the mother had some depression when trying to deal with the father over the Family Court issues. Dr R said that he believes that the mental health problems and suicide attempts in the mother’s late teens were in the context of the stressful situation that she was in with the father. He said that she does not appear to have had any ongoing suicidal behaviour. She had depression and was treated with Lovan but had been drug free for the past 12 months. He said that she has reconnected with a psychologist in Sydney Suburb 3 Community Health.
At page 20 of his report Dr R said as follows:
I formed the view that [the mother] was a capable caring parent and that she could adequately care for all of the children. …
I found no evidence to suggest that she has a personality disorder. I do believe that she has struggled to try and establish herself and establish stability. She’s found the cultural issues extremely difficult to manage. She wants to [practise] her style of Islam and doesn’t want to be forced to [practise] in the way that her father and her husband expect.
Dr R said that the mother has no current psychiatric diagnosis and no clear evidence of a personality disorder.
In relation to the father, Dr R said that the father has no current primary psychiatric diagnosis. He said that the father has features suggestive of a paranoid personality style as he is extremely suspicious of his wife and authorities although Dr R says that he considers that cultural values and beliefs are also contributing to the picture.
At page 21 of his report Dr R said as follows:
I formed the view that the father cared a great deal about the children and wanted to act in their best interest. However, I don’t believe the father wants to take on the primary caring role. I believe that he wants the children in his care and that there’s a great deal of face lost if the children are not in his care. However, I don’t believe that he wants to take on the primary caring role. He wants his mother to provide that primary role.
I believe that he is devoted to his work. He’s always worked [at his place of business] and this is an important part of his life. He sees the traditional values as the father working and women taking care of the children. His mother had 12 children and has many grandchildren. He sees his mother as being the primary carer of the children. I wasn’t able to get a clear view of the grandmother’s views because of her lack of English. However, it is clear that the grandmother supports the father. She may also support the view that the children are sexually at risk.
Section 60CC(3)(g) – The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
These children have an Islamic background. Each of their parents was born in Country 1. Their father is particularly religious. He informed me as follows:
We follow the path of Moslem conduct in the script of the Holy Koran.
The father had enrolled the children in an Islamic school and he is most anxious that they return to that school. Not only did he consider it essential for the children to receive an appropriate religious upbringing but he said that he made a mistake in sending the parties’ eldest child MM to a local high school, MM now being subject to two years in Juvenile Detention. The father considered it to be his responsibility to be raising his children in accordance with the teachings of the Holy Koran and he is most upset that the children’s mother has a much more liberal style of parenting.
On the other hand the mother said that she has raised the children in Australian society but with knowledge of their Islamic culture and their Country 1 background. She takes them to weekly Islamic events during which times they wear religious clothing.
It is true that the mother does not wear the scarf nor require the girls to wear the scarf. She and the children celebrate Ramadan and the children attend an Islamic school every Wednesday and Thursday after school. She has also arranged for them to attend Arabic classes every Saturday. The mother also takes them to the Mosque at Sydney Suburb 4 for Islamic scriptures.
I am satisfied that the mother considers it to be important to the children to maintain and further develop aspects of the culture and religion of their parents’ country of origin.
On the other hand the father regards cultural and religious obligations to have a much greater importance in how he foresees the children should be leading their lives. Unfortunately his views in this regard have been a matter of contention and serious upset between himself on the one hand and the mother and the children on the other.
Section 60CC(3)(i) – The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother has a positive attitude to her parenting of the children and to the responsibilities involved. As indicated above, she is much more realistic in her expectations for the children and in respect of their religious and cultural upbringing than is the father. It is clear that she cares deeply for the children and that they are the highest priority in her life. She has been the children’s primary parent and considers it her fundamental role in life to care for the children.
On the other hand the father has an attitude to the children which expects that they will follow his requirements, particularly in relation to religious and cultural matters, unquestioningly. He appears to be at a loss to understand why they would not simply follow all his directions in this regard.
As Dr R has observed, the father has demonstrated by the priority he has allocated to his employment over the years and by delegating much of his parenting responsibility to his mother, that the children are a lesser priority than his work. He has shown that he is capable of quite controlling and punitive behaviour towards the children. For example, the children M and K informed Dr R that during a disagreement with their father he said “if you don’t go with me you’ll have a car crash and go to hell”. The father said that he was taken out of context about this. He said that he made a similar comment in circumstances where he was being critical of the consumption of alcohol and said something like “if you drink alcohol you could have a car crash and go to hell”. In any event, the children have interpreted this in a negative way.
A particularly insensitive outburst was what the father said to Z when she rang him earlier this year in an endeavour to reconnect with him after having decided not to live with him. Z informed Dr R that during the conversation her father was very angry and said that he did not want her as a daughter any more. Dr R said Z was shocked by this and that this has caused her to feel very uncomfortable about the prospect of seeing her father.
I must say, in my view, such anger and rejecting behaviour would not appear to sit well with the requirement for understanding and tolerance at this time when these children are developing into adolescents.
In terms of their respective attitudes to the responsibilities of parenthood, I must say that in my view the mother has a much more appropriate attitude in this regard than the father. Dr R described the father’s ideas and concepts in relation to the children as being completely unrealistic. He also considered the father would be most unlikely to change his ideas. In my view that was very evident from the final submissions which the father made. The father could not contemplate it being proper for the children to live with their mother being the sort of person whom he said she is and a person who was Moslem but who has given up wearing the scarf.
Section 60CC(3)(j) – Any family violence involving the child or a member of the child’s family
The father denies that he and his mother have ever been violent to the children’s mother or to the children. I note that the Magellan Report prepared by the New South Wales Department of Community Services includes the following at page 3:
Between March 1998 and November 2000, [M] and [K] together with their siblings were the subject of four risk of harm reports to DOCS. All of these reports related to domestic violence between their mother … and their father … .
Three of the four reports between March 1998 and November 2000 were assessed by Departmental workers. Intervention and assessments focused on supporting [the mother], as a victim of violence to access relevant support services.
…
All reports in 2001 and 2002 described the physical assault of [the mother] by [the father]. These reports also describe physical assaults in the presence of the children. Police intervention had also been reported to DOCS …
One report was received in 2003. This report alleges physical harm of [M] by his mother. He and [K] were reported to be residing with their mother and maternal family members at the time. (It is noted that this matter appears not to have been taken any further)
There were numerous other notifications alleging violence and sexual abuse. But the Department has not investigated or assessed allegations since 2000.
The mother alleged that K had informed her that on numerous occasions when she had been spending time at her father’s home her paternal grandmother had made her undress and then inspected her genitals. The grandmother denied this.
Dr R said that he was unable to form any firm view that any abuse has taken place.
Because the father filed such limited affidavit evidence, as indicated above, there was really nothing to form the subject of cross-examination between the parties. A consequence of this has been that the allegations of domestic violence and sexual abuse have not been able to be tested in the hearing. This remains an unsatisfactory aspect of the case.
In all the circumstances, in my view, there is insufficient material for the Court to be able to make adverse findings of physical violence against the father. Having said this, however, I accept that he has acted most inappropriately towards the children because of his intemperate, insulting, and intimidating utterances which he has directed to the children and to their mother in the presence of the children. I accept Dr R’s view when he said that this has caused the children to have a fear of their father. In my view this must amount to a level of emotional and psychological abuse of the children. It would appear to be a significant cause for their decision not to wish to see him.
I am not aware of any evidence suggesting any similar emotional abuse of the children at the hands of their mother.
Section 60CC(3)(l) – Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
There have been numerous court orders made in relation to these children, yet the parties have remained in dispute.
If the Court was to make the orders sought by the father, there must be every likelihood that the children would refuse to reside with him. This would almost certainly lead to further litigation, including the possibility that the child protection authorities might take legal action.
On the other hand, if the Court was to make the orders sought by the mother, in my view, such orders would formalise the current living arrangements for the children and be less likely to lead to further litigation.
Section 60CC(3)(m) – Any other fact or circumstance that the court thinks is relevant
On the evidence of Dr R these children have settled into living in the mother’s household including with their sibling L. There appear to be no complaints from them about their settlement in their respective schools. M is attending School 5 where he is in Year 8. K and L attend School 3 and Z attends School 4.
Primary considerations
As indicated above, the primary considerations set out in s 60CC(2) of the Act are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In the present case, it would be to the benefit of the children to be able to have a meaningful relationship with their father as well as their mother. This would be ideal. Unfortunately, I have the view, largely based on the evidence of Dr R, that things have reached the point where the children’s relationship with their father has broken down. And it has broken down very seriously.
I am satisfied that such has been the inappropriate attitude, and the abusive behaviour, towards the children by their father, particularly since each of them stopped living with him, that this Court could not regard it as being consistent with their best interests to be required to spend other than a very modest amount of time with him. This is particularly because time spent by the children with their father could provide opportunity for him to ventilate his frustration with them and the style of their upbringing, to their serious disadvantage and even harm. Dr R considered that the father would struggle to contain his frustration in this regard.
The children should be protected from this. For this reason Dr R thought that time spent between the children and their father should be kept to approximately four occasions per year, each for quite limited duration.
Those recommendations by Dr R are supported by the Independent Children’s Lawyer.
Submissions
The father made a very strong submission that the children should live with him based on his view about the importance to the children in following the path of Moslem life and its religious principles. He indicated that he does not have a stand against any particular religion and that he is tolerant of other religious views. But he had a strong wish that the children attend an Islamic school because he wanted the children to learn the right way of life. His views about the importance of this have been reinforced by the fact that the parties’ eldest child MM attended a secular high school and has ended up in prison, as indicated above.
The father expressed his disappointment that the mother has departed from living her life in accordance with the Moslem code. He is worried that if the children live with her that they will develop bad behaviours and fall into trouble with the law.
He denied that he has ever been violent or that he has spoken angrily towards the children. The father is concerned that if the children remain living with their mother then she will influence them to have no relationship with him.
Learned counsel for the mother submitted that the best interests of the children require that they reside with their mother. It was submitted that the children should not be separated. It was submitted that given the ages of the children, they are capable of forming an independent view about what has happened to them and that their views should carry weight. What the children have experienced living in their mother’s care is completely at odds with the very negative assertions which the father has been making about the mother.
It was submitted that the father does not have any insight into the needs of the children and that this seriously affects his capacity to parent them. In addition the father has not been emotionally available to the children. He has been controlling and abusive and the consequence had been that the children have left their father. They are looking for a more nurturing environment.
It is submitted that the mother has demonstrated that she is able to provide opportunity for the children to develop their Islamic culture and religion. The mother acknowledges the importance of the children attending the Mosque, attending the Islamic school and undertaking language lessons.
It was submitted that the Court would be concerned about the allegations of significant family violence. It was submitted that the father’s denials that he has ever touched the wife in any violent way strained credulity. It was submitted that there can be no doubt that the children have been exposed to violence perpetrated by the father on their mother.
It was submitted that the children’s views have been clearly expressed by their actions in living with their mother and refusing to have a relationship with their father. To make an order inconsistent with their sibling bond would not be in their interests.
It was submitted that the children should be living with their mother, that she should have sole parental responsibility for them and that the children should spend a few occasions each year with their father with some appropriate protection.
Learned counsel for the Independent Children's Lawyer adopted the submissions for the mother. It was submitted that the mother would continue to ensure that the children attend the Mosque, the Islamic school and with their language lessons.
It was submitted that the views and parenting styles of the parents are vastly different. On the one hand the father has very strong religious and cultural views and regards it as fundamental that the children be brought up in accordance with such views. On the other hand the mother leads a different lifestyle from that and one which is more inclined to the traditional Australian way of life. This includes that the children attend secular schools.
This is a source of great frustration to the father. It is submitted that as a consequence of the father’s frustration about this to require the children to spend time with their father other than on a limited basis would almost certainly expose them to harsh criticism from their father for not conforming to his views. It was submitted that this would not be in the interests of the children and could amount to emotional and psychological harm to them. Learned counsel made detailed submissions in relation to the statutory requirements, the details of which it is unnecessary to set out.
Parental Responsibility
I return to further consideration of the presumption of equal shared parental responsibility. I accept the submissions on behalf of the mother and the Independent Children's Lawyer referred to above that the presumption should not apply because there are reasonable grounds to believe that the father has engaged in emotional and psychological abuse of the children. But in my view, there is an additional basis for the presumption not to apply. This is because in my view it would not be in the best interests of the children for their parents to have shared parental responsibility.
There is no reasonable prospect of cooperation in making decisions about the welfare of the children between the parents. I am satisfied that the mother has been very seriously disparaged, insulted and violated at the hands of the father and his mother. To make matters worse, the presence of the children has been no deterrent to the strength by which the father and his mother have ventilated their wrath and loathing of the children’s mother. These are not circumstances where one could find that it was in the best interests of the children for parental responsibility to continue to be shared by the parents. In any event, as I have said they have completely different views and parenting styles.
In my view the best interests of these children would be served by the sole parental responsibility for them to be placed with their mother. As indicated above this was also the view of Dr R.
Conclusion
The children have a strong wish to continue living with their mother. As indicated above, M and K have lived with their mother since separation, now many years ago. They expressed this wish both to Mr P and to Dr R.
Not surprisingly in these circumstances, Dr R has assessed the relationship between M and K and their mother as being very close and loving.
On the other hand, the relationship between these children and their father has broken down seriously.
Z had been living with her father, paternal grandmother and brother MM for most of the time since separation. Until last year, Z had become estranged from her mother as observed by Mr P early last year when he interviewed the child. But that has now changed and Z has been living with her mother and siblings and wishes to continue to do so. There is now a good relationship between Z and her mother.
I think it more likely that the mother would be able to encourage and facilitate some relationship between the children and their father than would be forthcoming from their father towards her if the children were to live primarily with him. He has a deep-seated resentment towards the mother. He has a strong aversion to her beliefs and the manner in which she is raising the children. This cuts deeply across his core beliefs that these children should be brought up in a traditional Islamic way which would involve attendance at an Islamic religious school and a strong commitment to the Islamic religion as would be demonstrated by the wearing of the scarf by the girls and all that goes along with such symbolism.
In all the circumstances, as I have referred to them above, in my view it would be unrealistic in the extreme to order for these children, the dramatic changes in their parenting arrangements proposed by their father. The likely consequences would be as I have indicated, namely, that the children would be unlikely to comply with the orders given their ages and level of maturity. In my view, therefore, what is proposed by their father would not serve their best interests. In the best interests of these children they should remain living with their mother.
I certify that the preceding one hundred and forty-seven (147) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice W P Johnston delivered on 12 August 2011.
Associate:
Date: 12 August 2011
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Family Law
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