HAKIMI & ATIYEH

FAMILY COURT OF AUSTRALIA

HAKIMI & ATIYEH

[2016] FamCA 494

FAMILY LAW – CHILDREN – Family violence – Where the mother alleges that the father has engaged in violent and threatening behaviour towards the mother and child – Where it is found that the father assaulted the mother on a number of occasions during the parties’ relationship – Where the child was present at times when the father was physically abusive towards the mother – Where the evidence discloses that the child was subject to family violence.

FAMILY LAW – CHILDREN – Best interests – Single expert witness – Evidence of the child’s relationship with the parties and their respective families – Where the child has not spent time with her father since 2011 – Where the child and father have engaged in three unsuccessful attempts at reintroduction therapy – Whether the Court should order a further attempt at reintroduction therapy – Parental responsibility – With whom the child lives – Consideration of s 60CC factors – Where the mother is granted sole parental responsibility – Where it is ordered that the child shall not spend time or communicate with the father, unless the child chooses to do so.

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

Briginshaw & Briginshaw (1938) 60 CLR 336

APPLICANT:

Ms Hakimi

RESPONDENT:

Mr Atiyeh

INDEPENDENT CHILDREN’S LAWYER:

Fiona Reid

FILE NUMBER:

SYC

1795

2008

DATE DELIVERED:

21 June 2016
(Amended 5 October 2016 pursuant to r 17.02 of the Family Law Rules 2004)

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATES:

10-12 March 2015;
14-16 April 2015;
2 June 2015;
6-9 July 2015;
7-8 September 2015;
14-15 and
17 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr O’Brien

SOLICITOR FOR THE APPLICANT:

Horizons Community Legal Centre

COUNSEL FOR THE RESPONDENT:

Ms Goodchild

SOLICITOR FOR THE RESPONDENT:

Gonzalez & Co Family Law Chambers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dart

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Fiona Reid of Reid Family Lawyers

Orders (as amended pursuant to r 17.02 of the family law rules 2004)

That all prior parenting orders be discharged and the Australian Federal Police give effect to this order by removing the name of Zeinab Ayache, born 9 December 2004, from the Airport Watch List.
The mother, Ms Hakimi, shall have sole parental responsibility for the child Z (the child) born … 2004.
The child shall live with the mother.
The child shall not spend time with or communicate with the father, Mr Atiyeh, unless the child indicates that she wishes to communicate with or spend time with the father. In that event, the mother is to take all reasonable steps necessary to facilitate such communication or time.
The father may send appropriate cards and gifts to the child on the child’s birthday, significant religious days and on other important occasions by providing them to an agreed nominee of the mother and the mother is to provide them to the child.
The mother is to provide to the father copies of all school reports and school photographs by providing copies to an agreed nominee of the father.
In the event of the child suffering a serious injury or hospitalisation the mother is to notify the father’s nominee and to keep the nominee informed of the child’s progress.
For the purpose of giving effect to the above orders each party is to advise the other within fourteen (14) days of a person willing to act as that party’s nominee.
All applications and cross applications be and are hereby dismissed.
All issues be removed from the Active Pending Cases List.
All material produced on subpoena shall be returned to the persons or institutions from which they emanated and all exhibits be returned to the person or persons who tendered the same not before fifty-six (56) days from the date of these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hakimi & Atiyeh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1795 of 2008

Ms Hakimi

Applicant

And

Mr Atiyeh

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings are concerned with the appropriate parenting orders to be made in relation to the parties’ child, Z (“the child”), born in 2004. She lives with her mother and has not spent any time with her father since the beginning of April 2011.
Ms Hakimi (“the mother”) seeks orders for sole parental responsibility for the child and for the child to live with her, with no provision for the father to spend time with the child.
Initially Mr Atiyeh (“the father”) sought an order for him to have sole parental responsibility for the child, and for the child to live with him and spend time with the mother. Ultimately, in the course of final submissions, the father proposed that final orders not be made and that orders should only be made on an interim basis so as to permit an attempt to reintroduce the child to her father to take place prior to the consideration of final orders.
The father’s proposed interim orders provided for the mother to have sole parental responsibility and for the child to live with the mother. The father also proposed a series of orders the effect of which was to require the child and the father to engage in structured reintroduction therapy with Dr B (the writer of the expert reports in this matter). The proceedings were to be stood over for six months for the therapy to take place and for Dr B to provide a further report. It is implicit in those proposed orders that at the end of the reintroduction therapy the Court would reconsider the parenting arrangements, particularly if the reintroduction therapy was successful. The father also proposed orders restraining the mother from removing the child from Australia and for the child to be placed on the airport watch list.
An Independent Children’s Lawyer (“ICL”) was appointed. In final submissions, the ICL proposed orders that were similar to those proposed by the father. The mother was to have sole parental responsibility for the child, who was to live with her. The father was to be ordered to engage in individual therapy with a psychologist recommended by Dr B. After at least six such sessions (with more to be undertaken if the psychologist requested) the father and the child were to attend on a family therapist (other than Dr B) for reintroduction therapy. The therapist was to provide a report to the Court on or before 1 September 2016. The proceedings were to be adjourned for that purpose.
Again, it is implicit in these proposals that the parenting arrangements could be reconsidered after the completion of the reintroduction therapy.
The issue before the Court is therefore obvious – should there be a further attempt at reintroducing the child to the father (the evidence discloses three earlier attempts) or should the Court accept the mother’s submission that another attempt is not in the child’s best interests and make orders which, effectively, shut the father out of the child’s life for at least her teenage years.
It is necessary to explain why the hearing and disposition of this matter has taken some time. The hearing commenced on 10 March 2015 with seven days set aside to complete it. The cross-examination of the mother commenced on the morning of the first day. The day concluded at 3:30 pm because the mother was not well. On the following day the mother was too ill to be cross-examined in the afternoon. On the third day the balance of the hearing was vacated due to the continuing illness of the mother. On that day orders were made requesting a further report from Dr B as well as orders requiring the mother to ensure that the child attended on Dr B. As will be discussed more fully later in these reasons, the child did not attend the interviews with Dr B which he conducted in August 2014 in order to prepare his second report.
The hearing resumed on 14 April 2015. This was the scheduled sixth day of the hearing. It became obvious that the matter could not conclude within the allotted time and further hearing dates were fixed for 2 June 2015 and the week commencing 6 July 2015. There was some difficulty in obtaining earlier dates due to issues relating to counsel.
The matter resumed on 2 June 2015 for one day and continued the week commencing 6 July 2015. Late in the afternoon of 7 July 2015 the father became ill and was unable to continue his evidence. It appears that later that night he was briefly admitted to hospital. Again the hearing dates were vacated and the matter re-fixed for September 2015.
The September dates were vacated due to the illness of one of the parties’ counsel.
The matter resumed on 14 December 2015 and concluded on 17 December 2015.

background

The applicant mother was born in 1978. The respondent father was born in 1979.
Prior to meeting the father, the mother had been in two relationships. There was a child of each relationship, Mr M born in 1994 and Mr H born in 1999.
The parties commenced a relationship in May 2002. At that time the mother was living with her parents. In 2006 the mother moved into a rental property in Suburb E and in October 2006, the father commenced staying overnight at that property. The parties’ relationship ended in November 2007.
Since the child was born in 2004, the mother has been the child’s primary carer. During periods when the mother has been unable to look after the child, the child has been cared for by the maternal grandparents or the mother’s brother, Mr F, and his family. The child currently lives with the mother and the child’s two brothers.
The mother was diagnosed with breast cancer in November 2011. She underwent a double mastectomy and was treated with chemotherapy and radiotherapy. There is no doubt that throughout 2012, at least, she was profoundly ill.
On 31 March 2008, the father commenced proceedings in the Family Court. The mother filed a Response on 22 April 2008. In May and June 2008, the parties and the child attended interviews with Ms A, then a Family Consultant with the court, for the purpose of a Children and Parents Issues Assessment. The assessment, dated 2 June 2008, noted that the child “showed delight at the thought of seeing [the father]” and the child indicated that she “loves both of her parents” (p.3).
On 22 December 2009, Le Poer Trench J made orders for the preparation of a Family Report. In February 2010, the mother and the child were interviewed again by Ms A for the purpose of preparing a Family Report. Ms A also interviewed the mother’s two sons. The father failed to attend the scheduled interview. The report writer observed that when the child was asked questions about her parents, there was “…evidence of [the child] feeling some anxiety about what her father, in particular, might be told and how he might react” (at [16]). Ms A also noted that the child’s behaviour in the interview “…suggest[s] that there is something significant in relation to the father … but what exactly it might be remains unclear” (at [17]).
The mother came before Le Poer Trench J for hearing in May 2010. The father did not appear. Le Poer Trench J made orders which provided for the child to live with the mother, who was to have sole parental responsibility for the child. The orders also provided for the father to spend time with the child on weekends during the school term and time during the school holidays. Included in the orders were various injunctions including an order that prohibited the father from physically disciplining the child. The child was to be provided with her own bedroom.
Around the end of 2010 and beginning of 2011, conflict arose between the parties as to the implementation of the orders. In February 2011, the child refused to spend time with the father. On 8 April 2011 the father attempted to collect the child, in accordance with the orders, so that she would spend time with him. The attempt did not go well. It will be necessary to deal with that event in some detail later in these reasons.
Immediately following the events of 8 April 2011, the father arranged for a ‘welfare check’ by police of the mother’s home. The same check was conducted of the father’s home. No further action was taken by police in relation to the police visits.
On 19 May 2011 the mother filed an Initiating Application. It was given the same file number as the earlier proceedings but was filed in the then Federal Magistrates Court. In that Application the mother sought:
·    That the mother have sole parental responsibility for the child
·    That the father is to have no contact with the child
·    That the mother will make long term decisions for the child
·    That all previous orders relating to the child spending time with the father be suspended
The father filed a Response to Initiating Application on 5 August 2011 and an Amended Response to Initiating Application on 11 July 2014. In that response he sought that the mother’s Initiating Application be dismissed and the following orders:
·That the father have sole parental responsibility for the child
·That the child live with the father
·That the mother spend time with the child for such time and in such manner as recommended by Dr B.
Throughout the hearing the mother continued to seek orders in accordance with her application. The father pressed for the orders sought in his Amended Response, until final submissions, when he proposed quite different orders, albeit of an interim nature. Thus, I did not understand him to abandon the orders sought in the Amended Response.
In August 2011, orders were made in the Federal Magistrates Court for Dr B, a clinical psychologist, to interview the parties and the child and for him to prepare a report for the Court’s assistance. Following the parties’ interviews with Dr B for the preparation of the report, the mother lodged a complaint about Dr B’s conduct during her interview with him. The complaint was investigated and resulted in Dr B being referred to a counselling session. Again, I will return to this aspect of the matter later.
The report of Dr B was released in November 2011. The report noted that the child was “…initially reluctant to see her father in a joint interview with the clinician, though when pressed she complied with little hesitation” and that the child “…became agitated, bit her nails, shook her legs and sucked her fingers” when the father attempted to talk to her ([65]). Dr B ultimately recommended that the child spend supervised time with the father until she “feels safe”. Unsupervised time would then follow ([101]).
On 5 December 2011, orders were made by consent for the parties and the child to attend upon Ms G, a psychologist, to consider whether supervised time with the father and child was feasible and if so to attempt the reintroduction. The mother attended three sessions with Ms G. The father attended two counselling sessions with Ms G. The reintroduction did not proceed further. Ms G told the father that she could do no more. Each party blamed the other for the therapy not proceeding, each asserting that the other did not properly engage in its process.
In late 2011, the mother attended the ‘Parents not Partners’ course. In 2012, the father completed the ‘Triple P’ parenting course and ‘Kids in Mind’ programme.
The matter was transferred to the Family Court of Australia on 24 August 2012.
An interim hearing was conducted in November 2012, and on 11 December 2012 Le Poer Trench J made orders for the father to have supervised time with the child at J Contact Centre (“J”). The father did not attend, saying that he was confused by a change in the centre’s location.
On 20 August 2014, by consent, orders were made for the child to spend two hours per fortnight with the father at K Centre. An order was also made for the father to meet with the contact supervisor for counselling sessions as to how he was to conduct himself during the supervised visits.
Again, this attempt did not go well. The child on two occasions refused to get out of the car to go into the centre and, on at least one occasion, when inside the centre, refused to see the father. The father blamed the mother for not requiring the child to attend or encouraging her not to do so.
In February 2014, orders were made by consent to facilitate the child’s attendance at Dr B’s rooms for reintroduction therapy. The child attended on Dr B for an initial session with her mother. Dr B explained to the child the process that would be undertaken when she was to meet her father, emphasising that her mother would be close at hand, in another room. The reintroduction was attempted in April 2014. It failed. On 15 April 2014 the mother’s brother took the child to Dr B (the mother was apparently overseas at the time). The child refused to get out of the car. On 30 April 2014 the mother and the maternal grandmother drove the child to Dr B’s rooms. Again, the child refused to get out of the mother’s car.
In September 2014, Dr B’s updated report (his second report) was released. In that report, Dr B opined that “[t]he likelihood that [the mother’s views of the father] has been the pivotal shaping contributor of [the child’s] extreme resistance now, cannot be excluded” ([75]). The report considered that another attempt at reintroduction therapy could be attempted or alternatively, “[i]n the absence of the mother demonstrating more effective parenting with [the child]”, the court could consider a reversal of the majority of care to the father ([82]).
On the first day of the hearing, the father sought orders which would require Dr B to see the child and the father later that week. The purpose of the proposed orders was twofold. The first was to obtain a report that would take into account an interview between Dr B and the child and to obtain her views. The second was, then and there, to commence an attempt at a therapeutic reintroduction between the child and the father.
After Dr B gave evidence on this aspect of the matter, on day three of the hearing, orders were made directing that the mother present the child to the Sydney Registry of the Family Court to see Dr B the following day, in order for Dr B to prepare a further updating report. I declined, at that early stage of the hearing, to make orders for any reintroduction therapy or any meeting between the father and the child.
The further updating report was released on 14 April 2015. In his report, Dr B noted that the child “… remains at risk of increased harm by virtue of a forced reunification process” ([13]) and noted the child’s “veneer of stubborn defiance” regarding her father ([20]).
The father has re-partnered with Ms C who has a child from a previous relationship. The father and Ms C had a son in December 2013 named O. The child subject of these proceedings has never met O. Ms C and the father live together with their son O and Ms C’s child, P.
The mother has re-partnered with Mr Q. Mr Q is a citizen of the United Arab Emirates. In September 2013, the mother and Mr Q entered into a marriage contract for six months and renewed that contract each six months thereafter. The mother travelled to the Middle East in September 2013 and January 2014 and South East Asia in June 2014 to spend time with Mr Q.
On 26 February 2015 the Department of Immigration and Border Protection approved an application for a prospective marriage visa. Mr Q arrived in Australia on about 11 April 2015. The evident purpose of his trip was to marry the mother. Although the evidence does not disclose whether the marriage took place, the hearing proceeded on the basis that he and the mother were pursuing a long term relationship. Mr Q has a son from a previous relationship.

Family violence

A significant issue in these proceedings is the determination of the mother’s allegations of violence. She asserts, and the father denies, that the father was regularly physically violent to the mother and was also violent in front of the child and, on one occasion, violent towards the child herself.

I shall first deal with the mother’s allegations of violence towards her and then with the allegations of violence towards the child.

The mother’s allegations

The first allegation made by the mother relates to August 2003. In an affidavit filed 11 July 2014, the mother said:
[31]…He pulled the car over and started to punch me in the side of my head. I jumped out of the car and started running up the street. [Mr Atiyeh] parked the car and chased me. When he caught me, he punched me with a closed fist. He knocked me to the ground and started kicking me in the legs. I managed to get away and ran to [Suburb R] Railway Station. I hid in the back lane for about 40 minutes. Eventually, I came out and [Mr Atiyeh] found me. He grabbed me by the hair and pulled me back into the car. He punched me with a closed fist to the head repeatedly. Eventually I managed to get away and run to my parents’ house. [Mr Atiyeh] followed me and kicked my parents’ door until he broke the deadlock latch.…
The mother’s evidence was that she told the father’s sister-in-law Ms S Atiyeh and the father’s brother, Mr U Atiyeh, what had happened. They denied that she did so. In the course of cross-examination the mother could not remember the number of times she was hit. She agreed with counsel for the father that she had no noticeable injuries and she did not make a complaint to the police or to her parents.
In March 2004 the mother said that the father punched her repeatedly with a closed fist to the head bruising her right eye and giving her a bleeding lip. The assault is said to have taken place in the father’s car.
The mother says that the following day she saw the father’s sisters Ms D and Ms V Atiyeh, who saw her bruised eye and bleeding lip. There was a discussion between them about the assault. She said that she was later contacted by Mr U Atiyeh again to discuss the assault (Mother’s affidavit, filed 11 July 2014, at [33]-[34]). Ms V denied that she saw any injuries or that the conversation alleged by the mother occurred. Ms D and Mr U Atiyeh also denied the mother’s claims.
The mother alleges in September 2004 the father hit her in the face with a closed fist. Again in that month the father is said to have forced her out of the car to walk home in the rain (Mother’s affidavit, filed 11 July 2014, at [35]-[36]).
In October 2004 the father is said repeatedly to have slammed the mother’s head into a steering wheel (Mother’s affidavit, filed 11 July 2014, at [37]).
The mother says that on 12 December, the day she was discharged from hospital after the birth of the child, the father collected her and “drove me to my parents’ home at ridiculous speeds. When we got there he grabbed all the flowers and things from the hospital and threw them on the sidewalk outside my parents’ house and yelled ‘get the fuck out’. He then took off at high speeds” (Mother’s affidavit, filed 11 July 2014, at [39]; as per original).
The mother said that in January 2005 the father hit her in the face and head repeatedly with a closed fist, grabbed her hair and pushed her head into a dressing table. She said that the paternal grandmother came into the room and asked the mother to be quiet because the grandparents had guests and the noise was embarrassing them. The mother said that she discussed the assault a few days later with the paternal grandparents (Mother’s affidavit, filed 11 July 2014, at [40]-[41]).
The mother said that in mid to late 2005 the father punched her in the side of her head and in her back (Mother’s affidavit, filed 11 July 2014, at [44]).
It is said by the mother that in October 2005, whilst the mother was at W Hospital accompanying the child, who had been admitted there, the father followed the mother into the hospital room, slapped her in the back of the head and kicked her on the leg (Mother’s affidavit, filed 11 July 2014, at [45]-[47]).
The mother said in June 2006 the father attempted to visit her at her house. When she asked him to leave he would not. He smashed the screen door and entered the premises. Whilst the mother was holding the child, he grabbed the mother by the hair and hit her head against the wall. He then started punching a wall (Mother’s affidavit, filed 11 July 2014, at [51]).
The mother said that in October 2006, when she was at her parents’ place, the father forced his way through the front door, grabbed her by the hair and punched her in the head (Mother’s affidavit, filed 11 July 2014, at [52]).
The mother said that in 2007, she was at a shopping centre at W Hospital when the father saw her. He pushed the mother and grabbed the child from her arms. When she arrived at her house, the father was driving the car up and down the street at high speed. The child was in the car with him (Mother’s affidavit, filed 11 July 2014, at [54]).
The mother said that on 28 March 2007, she was driving in the car when the father started tailgating her dangerously, chasing her at speed and suddenly cutting in front of her and blocking her off (Mother’s affidavit, filed 11 July 2014, at [55]).
The mother said in October 2007, the father came to their home. The child was playing with her brothers. The father asked the child to stop and when she refused he picked her up and threw her across a room (Mother’s affidavit, filed 11 July 2014, at [58]).
The mother gave evidence that shortly after that incident, she moved to a new residence at Suburb Y. She said that the father started sitting in his car near her residence often for long periods of time and following her (Mother’s affidavit, filed 11 July 2014, at [61]).
The mother said on 18 September 2008, she was at her parents’ home for changeover in accordance with the parenting orders then in place. The father was waiting outside in the car and started beeping his horn. The mother then said:
[75][The child] walked out and I heard [Mr Atiyeh] repeatedly yell at her, “Didn’t I tell you that when I beep you are to come outside? Tell me who told you not to come out”. I looked through the screen door and saw [Mr Atiyeh] grab the child by the shoulders. I opened the screen door and [Mr Atiyeh] picked [the child] up and slapped her face with the back of his hand. [The child] was becoming very upset so I said to her, “Tell him it was Mama”. [The child] said “It was was Mama”. [Mr Atiyeh] yelled, “Good that’s all I wanted to hear”.
(Mother’s affidavit, filed 11 July 2014)
The father denied all of the mother’s allegations. Ms D Atiyeh, Ms V and Mr U Atiyeh (the father’s siblings) and Ms L Atiyeh (the paternal grandmother) each swore affidavits which denied allegations of violence similar to those made in earlier affidavits of the mother. Unfortunately, the mother did not rely upon these earlier affidavits of hers before me so it is not entirely clear what it is that the father’s witnesses are denying. I proceed on the basis that they deny the present allegations of the mother. No one suggested anything to the contrary. Ms S Atiyeh, Mr U Atiyeh’s wife, also gave evidence. The paternal grandfather was not in a position to give evidence. There was little or no cross-examination of these witnesses by the mother as to the violence they are said to have seen (although it appears the issue was joined on the affidavits).
It falls then for me to determine whether or not the mother has satisfied me that the father was violent as she alleges. I bear in mind that these are allegations of serious assaults. The court therefore needs a comfortable degree of satisfaction in order to find them established (Briginshaw & Briginshaw (1938) 60 CLR 336).
I am conscious that in 2010 the mother sought and obtained orders which provided for the child to spend extensive unsupervised time with the father. The mother said she did so because:
I believed that he would have a relationship with the child outside of the violence that I had experienced with him prior to the 2010 orders being made.
(Cross-examination of Ms Hakimi by counsel for the father, 10 March 2015)
I accept that evidence.
Each party submitted that I could and should give the demeanour of the parties significant, if not determinative, weight in determining this issue. It is now well established that judges are no better equipped than anyone else in assessing the veracity of witnesses by having regard to the manner in which the evidence was given. I do not regard the demeanour of the witnesses as a satisfactory basis for determining this issue.
I turn then to see what other evidence is available.

Other evidence of violence

Ms I Hakimi, the child’s maternal grandmother, gave evidence that when the parents were still in a relationship she saw the mother running down the driveway screaming and the father running after her. The mother ran inside and when the father followed her he said to the mother “I don’t care who’s here. Next time I’m going to bash the hell out of you” (Affidavit filed 11 July 2014, at [6]).
She also described an incident that occurred during a religious occasion, although she could not remember in which year the incident occurred. She said that the mother was staying with the grandparents when the father arrived, pushed open the door, laced his fingers through the mother’s hair and started punching her ([7]).
In October 2005 the child, who was then not yet one year old, was admitted to W Hospital. It is apparent from the hospital notes that the mother stayed at the hospital with her. A note on 20 October 2005 from page 53 of the mother’s affidavit filed 11 June 2014 says:
Spoke to mum about pt [patient’s] Dad. Stated that Dad “is a pig” and “kick her in the leg” they are not together. Stated “what has she done to her this time?” Mum not happy with Dad doesn’t want him to visit again tonight.
(as per original)
This is the incident described by the mother above at [53].
A social worker spoke to the mother. She recorded notes of a conversation she had with the mother on 25 October 2005. The notes include the following:
… mum this a-m, who was teary and appeared quite anxious + stressed, due to pt’s paternal grandparents visiting mum stated they put pressure on her, and blame her for their son’s violence previously been physically violent towards her whilst holding pt – 2^nd last evening he kicked her in front of pt.
(as per original)
In July 2007 the mother arranged a housing transfer with the Department of Community Services. An assessment record dated 18 June 2007 recorded the following (on page 57 of the mother’s affidavit filed 11 June 2014):
[Ms Hakimi] was interviewed at [AA Centre] on both the 28/03/07 and 08/06/07.
[Ms Hakimi] on both occassions phoned to make an appointment to attend [AA Centre]
The mother stated that her ex partner did not have a gun.
He was stalking her.
At present he was living in her Department of Housing residence so she has moved back to her parents.
Apparently the ex partner will drive by her house constantly and has obtained access via his old key.
He constantly texts her wanting to re-establish the relationship.
He has no relationship with the older boys.
He is controlling of her, so is just trying to “wear her down” so she will get back with him.
She has applied for an A.V.O. however her brother in law is a solicitor, represented her ex partner so had the matter continually adjourned till she gave up.
(as per original)
On 13 March 2008, the mother obtained an interim apprehended violence order against the father. The father was not present at the time the order was made. On 23 March 2009, a final apprehended violence order was obtained by the mother against the father in defended proceedings. That order was in force for a period of 12 months. In support of the applications for those orders the mother completed an extensive statement to be used by the police on that application. In that statement the mother sets out a number of examples of intimidating, verbally abusive, physically violent and harassing behaviour of the father throughout 2007 (Mother’s affidavit filed 11 July 2014, pp.59-65). In that statement she refers to the incident referred to at [57] above.
The father tendered a vast number of text messages that passed between him and the mother. As the father pointed out, many of the texts sent by the mother strongly asserted her deep and passionate love for the father. Not all do so, however. The following texts contain references to the father’s violent behaviour:
Mother:“2007-11-05 04:28:52”, “[Mr Atiyeh] u only want revenge. U want to punish me for wat u think i did and thats not love thats torture. And if i meant anything at all to u “[Mr Atiyeh] u would have done many things differently. But u didnt. I was abused by u “[Mr Atiyeh]. Forget about the physical stuff. U mentally head fukd me. U played me like a violin. U tried everyday to destroy my self esteem. To try to separate me from my children. To get me to leave uni. To force me to accept ur families games. U blamed me for everything that happened with ur family because i spoke to them about u. U showed my parents messages, called me a liar, defended ur mum and called me a liar after u sat and heard everything she said about me and ur daughter. Yet i could never blame wat u said to my parents on u for my parents poor behaviour a year down the track. Its too late for us “[Mr Atiyeh] but pls acknowledge ur contributions to this breakdown and avoid them next time”
Father:“2007-11-05 04:31:28”; “Goodbye.”
Mother:“2007-11-14 11:06:28”; “U went to my parents, recorded my every move, took emails i sent to my children, took photos of the house to show its dirty when i was struggling to get through my final assignments, told me off about shorts when u were going [overseas] and i was trying to deal with the prospect of cancer and treatments, u left me to deal with everything on my own while i dealt with everything for u. U chose to speed did i tell u deal with it urself? Never. U used to let me and my kids, ur kid too, go running to stations to catch buses and trains when i had no car and i was burdened with ur foul attitude towards my children. U took everything except wat they got u. And on my birthday u didnt give a shit when i always do on urs. U never talk to me before urs either but i force u to so u can have that special day. Im too tired to go there anymore. U wanted a slave and a punching bag, not a wife and u kept pushing me”
Mother:“2007-11-14 11:13:43”; “U give me a weeks notice for [Mr U’s] birthday because its so important that the child be present for her uncles birthday but who cares about her mum who was the only one whoever cared about u. But its the same as cars and money and everything else. U will gladly help ur family out, make sure u attend all of their birthdays regardless of wat they theyve done. Ul give ur brother a car while ur wife catches buses. Ul tell my family that im a liar when u were present for wat ur mum said and did. And i dont respond i say [God] will give me wat i am owed i dont need to defend myself and against YOUR lies and ur passing the buck. U recorded me 3yrs ago about living with my parents so u could use that situation against me in a court of law and u forced me to move out and began the process of watching my back that continued until probably today. U wouldnt hesitate to fuck my life if u had the opportunity- y else do you spy”
Father: “2007-11-14 11:16:40”; “Just believe in yourself. You can have the things that mean most in your life, you can have your friends, you can have uni, you can have whatever you want. Not to mention you never didn’t have what you wanted. It was always what you wanted, just like the most recent episode. Anyway you made a decision and we all have to live with it.”
Mother:“2007-11-14 11:40:46”; “Say wat u please. The birthday was for the 5^th year running only a few weeks ago. The buying a pizza and sitting on a table with ur daughter and not even offering anybody else to eat was only weeks ago. The incident with ur sister was just weeks ago. The all nighters were only a few weeks ago. Ur calling me a liar about wat ur parents have done was only a few weeks ago. The cervical cancer was only weeks ago. The recordings were only weeks ago. Everything is a history of repetition that can be exhumed at monthly intervals. Ur absolute selfishness was only weeks ago. While i was doing ur uni application u were telling me oh well u made this decision while i was stressing. Stop passing the buck. I turned into a bitch because i was so bitter about the life of oppression, inequality and abuse mentally, emotionally and physically that i had suffered at ur hands. i cant fight u anymore. I dont want to.”
Father:“2007-11-14 11:42:54”; “You have to stop scrambling deep for excuses to try justify your actions. You did what you did and accept it. And yes, … day in day out. You forced a life, the life you want, the life that only suits you, on your daughter and myself. You took her away from her father, the person she lover most, and you deprived her father of her. You can live knowing that for the rest of your life.”
(Exhibit 33, tab 16; as per original, emphasis added)
In each of the messages sent by the mother referred to above there is an allegation of physical, emotional or psychological violence. None of the allegations in the mother’s texts were denied by the father. No issue is taken by him with her statements.

Conclusion as to the allegation of violence

In evaluating the above evidence it is important to bear in mind the following matters.
First, the fact that the mother did not report the acts of violence referred to above to her parents, her friends or the police does not mean that they did not occur. Sad experience tells us that such violence often occurs in private. That experience also tells us that such acts may not be reported out of fear, out of continued love for the perpetrator or because the victim, quite simply, is under the control of their abuser. However, a contemporaneous record or a report of violence can be important corroboration of the allegations. In the present case that form of corroboration appears in the W Hospital notes and, to a lesser extent, the Department of Housing records.
The parties had a volatile relationship. As the mother said in cross-examination, there were times when the relationship was passionate, the parties were in love and they enjoyed times together and there were times when it was toxic and volatile. There were regular periods when the parties had nothing to do with each other. Even the father described their relationship as toxic at times. The continuation of the relationship does not, therefore, mean that there was no violence.
The mother alleged that members of the father’s family were aware of the assaults on her because they were present, saw bruising and cuts, were told about the assaults and even rang the mother to discuss them. They denied the allegations. Their evidence, therefore, is to be accorded some weight.
The father submitted that some of the alleged acts could not have occurred. In particular, he submitted that it would have been impossible for him to slam the mother’s head into a steering wheel whilst she was driving. I do not see why that would be impossible and I reject that submission.
It was submitted by the father that there was significance in the fact that the mother reported acts of violence by her two previous partners to the police but not the father’s alleged acts. I accept that it is a relevant consideration.
The father submitted that the mother’s evidence should not be accepted because she lied to the Health Care Complaints Commission when she made a complaint about Dr B. The mother made extensive complaints about what she alleged to be the rude, insulting, derogatory and unprofessional behaviour of Dr B at the interviews for his first family report which were conducted on 12 October 2011.
In his oral evidence Dr B denied the allegations and said that, in his opinion, in general the mother was drawn to hyperbole and exaggeration. It is quite clear that Dr B and the mother had very different versions of the conduct of the interviews by him. He said that no action had been taken in response to the mother’s complaint, which suggested that his version had been accepted by the relevant authority. That answer was not entirely accurate. In response to the mother’s complaint and two complaints in unrelated matters, Dr B was directed to attend a counselling interview. No other action was taken.

This issue was not raised with the mother at all in the course of her evidence. There was no application for further cross-examination of her in relation to her letter of complaint after Dr B’s evidence was given. It is therefore impossible to resolve the issue as to whether the mother’s allegations about the conduct are correct or not. Of course, that may not have been possible even if the mother had given evidence about this matter.
More importantly, however, a difference in recall between Dr B and the mother would not require all her evidence to be rejected. That is so even if the mother had been found to have lied in her complaint.
That being so I do not derive any assistance from the mother’s letter of complaint or the evidence of Dr B in relation to it. Whilst I am troubled by the rather extreme nature of some of the mother’s complaints in the letter, I am not prepared to make any findings about them adverse to her, in the absence of cross-examination of her on the nature of her complaints.
I have viewed the video clips of the mother speaking on the website “…”. It is clear that from those videos the mother becomes emotional at times and uses hyperbole to great effect. I do not see that as adversely affecting her credit.
The father submitted that the mother was evasive when giving evidence. I did not see that her evidence was evasive and reject the submission.
Dr B repeatedly expressed his puzzlement with the difference between the mother’s reaction to the two fathers of her sons and to the father in this case. In the former case, although both fathers were violent to her she has managed to organise and maintain a regime where both the sons spend regular time with and maintain contact with their fathers. She has been unable to do that in the present case.
Although the two fathers of the mother’s sons were violent to the mother, the violence described by her is nowhere near as persistent or invasive as the violence she describes in this case. Indeed the violence of the father has continued in this case long after separation of the parties. There is therefore a different factual basis between the relationships with the sons’ fathers on the one hand and the father in this case on the other. I do not find the difference in approach by the mother therefore to be of substantial weight.
I find the W Hospital notes from 2005 to be particularly persuasive.
They provide a contemporaneous record of a complaint made by the mother where the complaint was incidental to the purpose of being at the hospital, which was the treatment of the child.
The text messages to and from the father, read as a whole, are clear indications that he accepted that he had regularly been physically violent to the mother. Albeit in general terms, they completely confirm the nature of the father’s behaviour to the mother.
Overall, then, I accept the mother’s evidence as to the father’s assaults on her and therefore prefer her evidence to the father’s and to that of his relatives. Whether each assault occurred precisely as the mother said is a different matter, but it is sufficient to find that the father regularly hit and angrily assaulted the mother during the relationship. After the relationship he continued to follow her, causing fear and anxiety.
The findings I am about to make as to violence involving the child support this finding.

Violence involving the child

It follows from the above findings that the child was present at times when the father was physically abusive towards the mother.
It is clear that the child was no stranger to corporal punishment. The mother accepted that she has hit the child, slapped her on the face on at least one occasion and pulled her hair.
Video evidence of the mother slapping the child was tendered by the father during the hearing. I interpolate here that the video was filmed by a private enquiry agent in 2008. It is clear from the father’s evidence that he had a number of “operatives”, as he described them, extensively follow and film the mother. Interestingly, neither a complaint about the slapping was made by the father nor was the video shown until the mother was cross-examined in 2015. This suggests that the father was more concerned about preserving the forensic impact of the video than he was about the appropriateness of the mother slapping the child.
It is clear that the members of the father’s family physically disciplined the child. Mr BB Atiyeh (the father’s brother) said he did (in an affidavit sworn by him on 14 July 2014, at [14]). Ms L Atiyeh (the paternal grandmother) said that she spoke to him about doing so (Affidavit of Ms L Atiyeh, sworn 11 July 2014, at [6]). The father admitted as much in cross-examination.
The child said that the father hit her. She said so on two occasions to the coordinator at K Centre. At the interview with Dr B in 2011 the child did not say whether her father hit her, but did say that her father tells her that she is going to get a smack. The child told a police officer that the father smacks her.
The father accepted that on 8 April 2011, when attempting to collect the child, he threatened to smack her.
The father said that, although he has threatened to smack her, he has never actually smacked her and the threats have only ever been hollow ones. I do not accept that. Members of his family, without objection from him, have smacked the child. Up until the hearing in 2015, the mother has on occasions hit and slapped the child, without objection by the father. The child said the father smacks her. The weight of evidence is against him.
Thus, both parents have inappropriately disciplined the child. The real significance, therefore, is that the father did so in breach of the 2010 orders, which prohibited the father from physically disciplining the child.
Taking these matters into account together with my findings as to the mother’s evidence as to violence generally, I find that the father slapped the child as set out [60] above. That, of course, was not even an occasion of discipline, rather gratuitous violence directed to both the child and the mother.
On 8 April 2011, the child was due to spend time with the father pursuant to the order then in force. The mother’s evidence was that in the months leading up to April 2011, the child had become increasingly reluctant to spend time with the father. According to the mother, the child was complaining that she had to sleep in the same bed or room as the father, that he had no time for her and that members of his family were mean to her and said bad things about the mother.
It was not controversial that on 8 April 2011, as appeared to be common place, the father did not attend the maternal grandparents’ house to collect the child but rather sent a member of his family. This time the father’s youngest brother, Mr BB Atiyeh, then aged 18, arrived. Again it was uncontroversial that the child was upset, distressed and did not want to go with Mr BB. He called the father who then spoke to the child on the telephone. Shortly after, both the mother and the father arrived at the maternal grandparents’ house. The father said that he received a phone call from Mr BB telling him that the child was refusing to come with him. The father said that he told Mr BB to “get her things and bring her home in the car”. According to the father, the following occurred:
[16]A few minutes later, [Mr BB] telephoned me and said to me words to the following effect: “She won’t come.” I said to [Mr BB] words to the following effect: “Put her on the phone to me.” [The child] came onto the telephone. I said: “Get all of your things together and hop in the car with your uncle. I’m heading home now and I’ll be waiting for you to arrive.” [The child] said: “No. I’m not coming.” I said: “It’s not up to you. Do what you’re told”. [The child] said: “No. I do not want to come.” I said: “Do you want me to come down? If I have to come down, you’re going to get a smack for it. “[The child] said: “No, I don’t want to come.” I said: “Okay, I’ll be there soon. Just stay there.”
[17]I arrived at [Ms Hakimi’s] parents’ home at about 6.40 pm with my sister [Ms V] who drove me there. Mr BB was standing on the front nature strip. [Ms Hakimi’s] car was in the driveway. After a brief conversation with [Mr BB], I went into the front yard and stood opposite the front door. The front door was open but the screen door was shut. I spoke to [Ms Hakimi] through the screen door. I saw that [Ms Hakimi] was sitting on a sofa just inside the door which opens up immediately into a lounge area. [Mr CC] was sitting directly opposite the door on a sofa. The child was standing behind the door and poked her head round. I said to [Ms Hakimi] words the following effect: “Tell [the child] to get her things together and come outside.” [Ms Hakimi] said to me words to the following effect: “She doesn’t want to go. If she doesn’t want to go, you can’t force her to go.” I said: “It’s not up to her. You’re her mother. We should be making the decisions on her behalf. Tell [the child] to come outside so that I can talk to her.” [The child], said: “No, I don’t want to go.” I said: “It’s not up to you. I’m your father. I’m calling you to come outside and talk to me. So come outside.” [The child] said: “I don’t want to come outside.” [Ms Hakimi] then screaming, said: “If she doesn’t want to come out, she doesn’t have too. You can’t force her. It’s up to her to do what she wants.” I said to [Ms Hakimi]: “You’re sitting there supporting her through her ill mannered behaviour rather than explaining to her that she should be going with myself. Are you going to bring her out to me or should I go to the police?” [Ms Hakimi] said: “I’m not bringing her out. Go do what you want.” I said: “If this is the way that you are going to act in front of [the child], this is only going to impact on the person that she is going to be.” That was the end of the conversation.
(Father’s affidavit, filed 10 July 2014; as per original, emphasis added)
Thus, on the father’s own evidence, not only did he clearly threaten to smack the child, he also made a threat to the child that he would call the police to make her go with him. That is what the father then did – he involved the police.
Mr BB Atiyeh recalled that there was a heated exchange of words between the father and the mother. He did say, however, that the words used by the father were not as harsh as the mother described (Affidavit of Mr BB Atiyeh, sworn 14 July 2014, at [31(c)]). The father (during cross-examination) and his sister, Ms V Atiyeh (in her affidavit sworn 14 July 2014, at [13]), denied that there was any unseemly shouting, notwithstanding that the reaction of both the mother and the father was to approach the police. The evidence of Mr BB Atiyeh is more consistent with the course of events than the father’s and Ms V Atiyeh’s evidence.
The mother said after the child refused to go with Mr BB, he repeatedly said that the father had a right to take the child. He said:
She doesn’t have the right to make her own decisions. It’s my brother’s legal right to take her and she doesn’t make the decisions. When her dad comes he can just grab her and take her.
(Mother’s affidavit, filed 11 July 2014, at [109])
After some period of “[the child] wailing” the scene ended, according to the mother, when the father said:
You go. Fuck you and her. She’s gonna be a half brain rubbish like her mother anyway. Who is she going to turn out like other than her mother, a piece of half brain. You keep her.
(Mother’s affidavit, filed 11 July 2014, at [112])
The father and Ms V went immediately to the police station. Later that day a police officer interviewed both the child and the mother. This suggests a less benign scene than that described by the father and his witnesses in their evidence. That is so even if, as they said, they were simply seeking the assistance of the police to enforce the orders. Why else would the police conduct an investigation?
The father tendered a number of documents produced by the child’s school. On 4 May 2011 the school received a Referral to School Counsellor request signed by the mother. Under the question “Reason for referral/what reasons do you have?” the mother wrote (as best as can be deciphered – I take the words written “fa her” to be “father):
[The child] has been assaulted by her fa her & paternal uncle.
(Exhibit 33, tab 26)
Given the proximity of 4 May 2011 to 8 April 2011, and given that neither the father nor the paternal uncle had seen the child during that period, I take that to be more likely than not a reference to the events of 8 April 2011.
After the question “What do you hope will happen as a result of the school counsellor seeing your child?” the mother wrote “[The child] doesn’t want to come to school”.
The obvious inference, and one which I draw, is that at the least, the subjective view of the child and the mother is that the child was assaulted by the father and her uncle on that day. The suggestion is that the child was so affected by the events of that day that she did not want to go to school. The document is consistent with the mother’s case.
Again, this suggests that the events of 8 April 2011 were more extreme than the father and his witnesses would have it. Again, this leads me to prefer the evidence of the mother as to this event.
Although there is no suggestion that the father hit the child on that day, he threatened to do so. I find that the behaviour of the father towards the child and her mother was abusive and threatening and that the child was very frightened of him.
I find that the behaviour of the father towards the mother and the child has caused the child to have a rational fear of her father, as these events gave her good reason to be fearful of him.

Family consultant’s reports

A family consultant prepared a Children and Parents Issues Assessment on 11 June 2008. The child was then three years and six months old. According to the family consultant (at p.3):
[The child] showed delight at the thought of seeing [the father] and she started to ask after him as soon as I made her aware that I was bringing him to say hello to her. She was persistent.
She greeted him by running to him, arms outstretched and face beaming.
She had considerable difficulty separating from him and would only do so with a promise that he would return.
The family consultant identified the parental relationship as the main problem (p.4).
A Family Report was prepared on 24 March 2010. The father did not attend the interviews with the family consultant. When he was questioned about not turning up the father said, oddly, that he did not recall that he did not turn up.
The family consultant opined:
[18]In the absence of her father it is not possible to make any useful comments about [the child’s] relationship with him, beyond pointing out that her mother feels that [the child] trusts him and that [the child] included him in her love heart [a drawing]. She appears to have a good relationship with her mother. In the informal observation of them together [the child] engaged her mother in a relaxed and affectionate manner.
As I have already said, however, the child was anxious about what her father might be told and how he might react.
The father further said during cross-examination that he did not recall reading the report. He did not attend the hearing in the Family Court on 26 May 2010. On that day Le Poer Trench J made orders for the child to live with her mother who was to have sole parental responsibility. Further orders provided for the child to spend time with her father on alternate weekends during the school term, half of the short school holidays and the last weekend of the Christmas school holidays. An order was made that required the child to have her own bedroom when spending time with the father. The father was enjoined from physically disciplining the child.
When questioned about his failure to attend the hearing the father said that he simply attended the court on the wrong day. The matter had been heard two days earlier. He agreed that he did not seek to appeal the orders of Le Poer Trench J or to seek to have them set aside.
What can be drawn from these two reports is that the child, at that time, clearly loved her father and had, at least, some kind of relationship with him. By the time of the second report, however, the child was anxious about the father, what he might be told and how he might react. It also appears that he did not give the relationship with his daughter sufficient value at that time to attend on the family consultant.

Dr B

Dr B provided three written reports for the benefit of the court and was extensively cross-examined. It will be necessary to refer to his evidence in some detail in order to be able to determine Dr B’s ultimate conclusions and recommendations and the weight that should be accorded to them.

The First Report

Dr B’s first report was dated 12 October 2011. It is to be recalled at that time the mother had sole parental responsibility for the child who was living with the mother. The child was to spend time with her father each alternate weekend and half the school holidays.
In her application before the court, the mother sought that the father have no contact with the child. The father sought an order for equal shared parental responsibility and that the child live with him each alternate week from Friday to Friday and half the school holidays.
At the time of this report the child was aged six years and ten months. Dr B recorded her saying the following:
[61][The child] said that she used to visit her father every other weekend. She stated that during the visits her Uncle hit her in the back, her Grandmother called her ‘Idiot’, and a ‘half-brain’, and her father called [Ms Hakimi] ‘rubbish’, her grandfather screamed and hit her, and her Aunt [Ms V] screamed at her.
[62][The child] recalled the incident when her Uncle [Mr BB] came to pick her up. She said that she did not want to go because Uncle [Mr BB] was there and he and the others hit her in the paternal grandparents’ home. She remembered talking with her father on the phone, her father saying, ‘come out, or if I have to come over there I’ll smack you’. She said that her father then arrived at their home accompanied by Aunt [Ms V] who drove because her father ‘is not allowed to drive any more due to his too fast driving’. [The child] said that her Auntie called the police and the police officer came and asked her questions such as if anyone hit her and called her names.
[63][The child] stressed her desire to stay with her mother and her brothers in her grandmother’s house. She said she did not want to see her father.
It can be seen that the child had a vivid recall of the events of 8 April 2011.
Dr B described the child as initially reluctant to see her father, although he said when pressed she complied with little hesitation. When the father attempted to kiss the child she resisted, and stood still anxiously. When the father was talking to her she looked away, became agitated, bit her nails, shook her legs and sucked her fingers ([65]).
Dr B said:
[67][Mr Atiyeh] talked about the last changeover incident, saying “I told you on the phone. Come out. You are to do as you’re told. We are parents. Do you want me to come over and smack you?”. Then, [Mr Atiyeh] asked [the child], “Did I smack you ever?” [The child] shook her head. Subsequently in discussion with the clinician about the likely implications of these statements, given his physical size, and the size of [the child], he showed minimal ability to comprehend the possible fear he had invoked in [the child] and the contribution he had made to her current resistance in spending time with him and his family.
I pause to note that this evidence is consistent with the findings I have made about the events of 8 April 2011 and the effect of them on the child.

Dr B noted that the child appeared to have a strong attachment to the mother, who had been her primary carer for most of her life. He described the child’s relationship with her father as quite fragile. Dr B said:
[87]…It is of great concern that [the child] is reluctant to see her father and of the observed emotional distress subsequent to the joint interview with her father at the assessment. The relationship between [the child] and her father appears to be at crisis, and desperately needs new positive experiences in order to build a life long father-daughter relationship for this six year old girl. Regrettably however, [Mr Atiyeh] appears focused on projecting blame on [Ms Hakimi] for the current situation together with maintaining a rigid expectation that [the child] ‘must do as she is told’.
Dr B explained the child’s behaviour in the presence of the father as being “more so attributable to the child’s anticipatory fear associated with past behaviour of her father” (at [91]).
Dr B described the likelihood of shared parental responsibility working as “minimal” or “remote” ([100]). He suggested that the child should commence to spend supervised time with the father, preferably with the assistance of a clinician so that constructive feedback could be provided to the father to assist him becoming more attuned to his daughter’s communication ([101]). He recommended that the mother should accompany the child on the visit and stay in another room. The recommendation was for fortnightly visits for three months. When the child felt safe it was proposed by Dr B that she should spend unsupervised time with the father gradually increasing to alternate weekends, gradually extending the time and possibly leading to overnight time.
At the time of this report only a relatively short period of time had passed since the child last spent time with the father. Even so, Dr B recommended supervised time at first, and for the father to receive clinical assistance in dealing with his daughter. That is a clear indication of the poor state of the relationship between the child and her father at that time and that it required rebuilding.

The Second Report

Before dealing with Dr B’s second report dated 21 August 2014 it is necessary to refer to a number of events that occurred between the two reports.
The matter came before the then Federal Magistrates Court in November 2011. By then the mother had been diagnosed with breast cancer and a final hearing was vacated due to her ill health. A psychologist, Ms G, was appointed by that Court to do an intake assessment as to the viability of supervised time as recommended by Dr B and to facilitate a reintroduction of the child to the father.
As I have said, in December 2011 and January 2012 the father attended twice upon Ms G. Over the same period the mother attended upon Ms G three times. The matter was transferred to the Family Court of Australia and on 28 November 2012 Le Poer Trench J ordered the ICL to organise J Contact Centre as a venue for supervised contact between the father and the child. The father did not attend, saying he was unaware of the changed location of the centre.
On 20 August 2013, I ordered that the father and the child attend K Contact Centre for the purpose of supervised contact and that the father attend counselling at the same venue. Both parties completed intake sessions and attempts were made to have the child see her father. On each occasion the child refused to do so. I shall refer to these attempts in more detail shortly.
On 4 February 2014, I ordered that the father and the child attend up to four sessions with Dr B for reintroduction therapy.
Dr B saw the father for an introductory session on 26 March 2014. The father was asked to write a letter to the child expressing how he thought she felt. (This emerges from paragraph 9 of his third report.) The letter was to be used in sessions with the child. The father was instructed not to bring a gift.
The father did not write the letter. He did provide a gift (an iPad) and a card.
On 28 March 2014 the mother and the child attended upon Dr B.
Dr B spent some time with the child and her mother preparing the child for the reintroduction therapy with her father on 28 March 2014. Dr B was critical of what he regarded as the mother’s minimal input ([69]). At that session Dr B gave the child the card and the gift.
The mother required the child to write the father a thank you note. The child refused. She preferred to return the iPad even though she was keen to own one. The gift was therefore returned.
In his third report Dr B said that the child’s response to the gift “was to perceive her father as attempting to buy her affections, which was counter-productive and in fact further reinforced the strength of her resistance” ([9]).
The child was due to see Dr B and the father on 15 April 2014. It appears that the mother’s brother could not persuade the child to go to Dr B’s rooms. She simply refused to get out of the car. By the time the father arrived, the uncle and child had left.
A further attempt was scheduled for 30 April 2014 again with the same result – the child refused to get out of the car.
Thus, on three occasions a court has made orders requiring the parties to take steps, with the assistance of professionals, to reintroduce the child to the father. Each attempt failed early in the process.
Dr B arranged to conduct interviews on 21 July 2014 for the purpose of completing his report. Again the child refused to get out of the car to see Dr B or to see her father.
After referring again to the rejection of the father by the child Dr B said:
[78]The rejection of [Mr Atiyeh] by [the child] would thus seem to be multifactorial, with both parents remaining entrenched in their hostility toward the other; an excessive burden of decision-making placed upon a young child within a conflicted but permissive care environment; and, a distorted pattern of family relationships which combined seems to be putting [the child’s] healthy psychological development at risk. It is evident that both parents love and care for [the child], however both demonstrate limited insight into the direct impact that their entrenched hostility towards each other has had on [the child], as well as the effect of their own mental health and/or actions. If the Court resolves that [the child’s] best interests are served by repairing a damaged relationship with the rejected parent (or that a child will be harmed in the long run remaining in the full-time care of the favoured parent), it will be placed in what British Columbia Justice Bruce Preston termed ‘a stark dilemma’ – the Court must weigh the long-term benefits against the risks that the attempt to repair the parent-child relationship will either be unsuccessful or will involve an unacceptable degree of emotional cost, such as creating psychological trauma or provoking the child’s destructive behaviour. The previous court-ordered re-introduction therapy is one option usually attempted by courts in these cases, but regrettably in this instance this has not achieved the desired result. The level of constructive influence of [Ms Hakimi] however, remains difficult to determine.
Dr B concluded that there were three options available. The first option was placing the child in a third party’s home or residential facility as a safe site whilst gradually increasing the child’s contact with the father. Dr B did not think this would be effective with the child and said that it risked rupturing her primary attachment with her mother without the development of a compensatory attachment to the father ([79]-[82]).
A second option was that the court would in effect prevent contact between the child and her father. Dr B said of this option:
[80] There are obvious drawbacks of this option: it may be interpreted by [the child] as parental abandonment; it could also reinforce in [the child] a preferred strategy of avoidance rather than management of conflict; [the child’s] rejecting beliefs about the rejected parent will likely be reinforced; and, [the child] receives no help to better understand the relationship with each parent nor assistance to reduce the likelihood of future problems related to a loss of such magnitude.
The final option was a further attempt to re-establish contact between the child and her father under the care of a clinical psychologist or suitably qualified practitioner but with the mother being forced to comply with the orders by ensuring that the child attended upon the clinician. Dr B said:
[82]…It is my belief that a minimum of six sessions would be required to facilitate this, though with adroit timing, this could also culminate with the proposed holiday period above. Additionally, I believe [Ms Hakimi] may require further individual sessions with the same professional in order to assist her increase her awareness of her child’s needs and distinguish them from her own, and comprehend the impact of possible parent-child role reversal and her entrenched hostility towards [Mr Atiyeh] on [the child]. If this were successful, she could then become an ally in the process of restoration to some degree of relationship between [the child] and [Mr Atiyeh]. If the Court believed this a feasible option, it could then consider postponing a final decision until the outcome of this course of intervention is clear. In the absence of the mother demonstrating more effective parenting with the child, with respect to this issue, then the alternate, starker option remains open to the Court of a reversal of majority care to the father.
Thus, Dr B favoured a further attempt at reintroduction, with the possibility of moving the care of the child to the father to ensure it would take place.

The Third Report

The hearing commenced on 10 March 2015. As I have said, on that day the father brought an application which sought orders requiring the mother to bring the child to the court that week for the purpose of her spending time with the father, for Dr B to be present to observe the interaction and possibly commence some reintroduction therapy. Dr B was cross-examined by each of the parties and the ICL on 11 March 2015 in relation to that application. Dr B was quite keen to commence reintroduction therapy but was adamant that it could not be a one-off process but needed to be the part of a continuing strategy. This would also involve some sessions of preparatory work with the child before she was introduced with the father.
I declined to make an order for the commencement of a reintroduction strategy at that time because that was, effectively, a final order and an order of that significance and finality should not be made on an interim basis so early in the hearing. I did, however, order the mother to deliver the child to the child services facility at the court so that Dr B could interview her. That occurred and on 13 April 2015 Dr B prepared an addendum to his second report.
Dr B administered a “multidimensional anxiety inventory” to the child. He found slightly elevated symptoms of anxiety but saw notable elevations in relation to separation anxiety and physical symptoms associated with panic and tension ([11]).
Dr B referred to the child’s poor attendance at school and said that these “support a profile of an insecure child with psychosomatic tendencies living within a potentially permissive care environment. These factors are highlighted because these would be the likely symptoms to be exacerbated in the event the child was placed under the stress of yet another attempt at a reunification process” ([11]).
Dr B also said of an attempted reintroduction process:
[12]…Whether [the child] will experience emotional and psychological harm, given her sensitivity to stress, coupled with the strength of her resistance, I would have to indicate it is more likely than not she would find this a highly stressful experience. Combining this with [Mr Atiyeh’s] less than impressive capacity to reflect on his, and his family’s contribution to the current parlous situation, increases the probability the stress [the child] will experience will be heightened, and the level of support less than optimal to address it.
Dr B was asked to express an opinion as to how any process of reintroduction could be implemented and the likely success of it. Of this Dr B said:
[14]It is difficult to succinctly encapsulate the complex set of factors that need to be contemplated in considering whether reintroduction is likely to be successful in this matter. Throughout the recent discussion with [the child] about having contact with the paternal family, she articulated a stubborn defiance, saying she did not want to have contact with her father because of the things he has said and done. She did not want contact with her uncle [Mr BB] and Aunt [Ms V] because of the things they have done. She remained positive about Aunt [Ms D] but recalled from past visits, she did not stay around too long, and hence does not perceive her to be a protective asset for her. In considering smaller steps like brief contacts with her father while under the protective support of maternal Uncle [Mr H], [the child] expressed a view that her father has not changed, and evidenced this on the basis of the gift provided. In short, [the child] put forward a number of well-reasoned arguments about why she does not want to have contact with her father and his family.
[15]Taking a step back, this needs to be considered in light of [the child’s] lived experience of watching her brothers visit their fathers on at least a fortnightly basis, though sometimes more frequently, and it would defy logic to suggest that underneath her expressed defiance there is not still a wistful child idealistically wishing for a relationship with her father, at the very least in a manner not dissimilar to what her older brothers model.
As to how it might occur Dr B rejected a sudden change of arrangements including rejecting a short stay with the father and said:
[17]In the absence of a flooding type strategy, the only remaining option is weekly reunification therapy, similar to what was attempted before, but with the authority of the Court behind it, to ensure the mother is more positively supportive of the process. To see any chance of success, [Mr Atiyeh] would need to engage in individual therapy to reflect on his conduct throughout the course of his relationship with [Ms Hakimi] and the reported conflicts that [the child] reportedly witnessed. Similarly he needs to consider his approach to parenting, and his past practice of having contact with [the child] on alternate weekends, only to leave her for prolonged periods of time in the care of the paternal family. Finally he needs to engage in psychoeducation and instructional courses about the development of young females in middle childhood/early adolescence to better understand their capacity for insightful thinking coupled with their own volatile emotional profiles.
[18]Similarly, with [the child], having her attend the Court was a first step, but it was not without considerable emotional distress on the part of [the child]. At the conclusion of this one-off session with [the child], it was left that if directed by the Court, [the child] would attend a further session with the father in my rooms where she would be in the one-way mirrored room with myself being able to view and hear [Mr Atiyeh], but she remained absolutely adamant that she did not wish to have any form of re-engagement witih him. On the basis of my experience, it may be possible to conduct more sessions with [the child] where proximity increases, but as detailed above, the success of these are more dependent on [Mr Atiyeh] acquiring greater insight into history and himself, than on simply ‘forcing’ [the child] to comply. Doing so would only increase her resentment and resistance in having any future contact with him.
However, importantly, Dr B also said:
[19] Alternatively, with the benefit of being able to review the available evidence and hear cross-examination of the key individuals, the Court will have a far better perspective as to how well-founded is this child’s fears of her father and the paternal family, than myself as clinician. If these fears are indeed rational, then the question must beg for the Court as to how sensible it is to ask any clinician to try to change a child’s views of having a rational fear. In contrast, clinicians routinely work with individuals right across the age spectrum to assist them to overcome irrational fears, but there is an inherent illogic, not to mention questionable ethics to engage upon a program of therapeutic intervention designed to challenge an individual’s functioning, protective behaviours.
(emphasis added)
I take this paragraph to be a reference to the family violence and to the nature of the child’s fear of her father. Dr B, in the course of his oral evidence, distinguished between a genuine but rational fear (in the sense that it is rationally based) and a genuine but irrational fear (which has no rational basis). Therefore I understand this paragraph to opine that it is not appropriate for there to be clinical intervention to change the former.
I also take from this report that Dr B was more circumspect about the likely success of reintroduction in this report than he was in his earlier reports or in his brief oral evidence given on 11 March 2015.

Dr B’s oral evidence

Dr B gave evidence on 15 and 17 December 2015. By then Dr B had had opportunity to read the parties’ affidavit material and the transcript of, at least, the evidence of the mother. Having referred to that, Dr B succinctly, and correctly, summarised the proceedings before the court as follows:
I think – the court is left with quite a stark dilemma in this matter, given my longevity in it and without overstretching my role of – the court is left with a predicament of trying to work out the best pathway forward for two individuals who seem to be at great effort to minimise the degree of insight they can actually gain and apply in this case for the betterment of their daughter, and I think that’s going to be an inordinate challenge for the – for the court to grapple with, and the new material highlighted to be particularly the mother’s absence of insight more so in the sense that she strikes me as a highly intelligent individual and quite capable of – of better thinking and better reflection and yet demonstrably as not reaching that point. The father, conversely – I’ve indicated before – I’ve already raised concerns about his capacity for insight, his limited reflection and regrettably, that persists to my current report which I indicated.
When asked as to the effect of his views if the court was unable to form a conclusion as to the allegations of violence Dr B said:
I’m then back at the point that if there is so little evidence such that the court can’t reach a definitive conclusion then presumably we’re – we’re more towards the null hypothesis of less happened rather than more happened. If that logic holds then I’m reaching for [the child’s] attitude base at this point to be more of a reflection of her mother’s attitude base and have more of an irrational basis to it than a rational one, and given [the child’s] older age, increased maturity and capacity to express and engage in self-protective behaviours, she is in a far better position to still actually have the opportunity to engage with her father given, the right circumstances.
During the course of his oral evidence Dr B expanded on examples of what he thought could be appropriate coercion on the mother to have the child attend reintroduction therapy. He suggested, for example, that the child could be prevented from travelling overseas with her mother until such time as an appropriate course of therapy had been attempted.
Dr B then referred to his proposals and described them as being “more in terms of suggestions” than recommendations. Dr B described the importance of requiring the mother to comply, in spirit as well as with the terms of any suggested orders, as being essential. He was asked:
So you say that if the mother doesn’t agree with the interim orders – or those interim orders, including some sort of family therapy, then the court shouldn’t make them? --- I just think it’s going to be a fraught issue and subject to slower progress. That’s all.

The father’s brother presently pays the rent on the premises where the father and his new wife and child live.
The father proposed if he were to receive parental responsibility for the child he would enrol her at the GG School in Sydney. When the issue as to how the father could manage to pay those fees was raised, he said that his brother had agreed to pay the fees. The base fees range from $17 079 for years 5 and 6 to $21 156 for years 7 to 9.
The evidence did not disclose the basis on which the father’s brother provided the cars, paid the rent or would pay the school fees.
The father’s evidence was that for the last two years he has been working on management for projects associated with his family. The position, therefore, is that although the father seems to have the benefit of considerable assistance from his brother and has been able to work full time for the benefit of his family, he has not been in a position to pay any meaningful support for his daughter. As Dr B points out, the child is aware of this and this lack of support reinforces her negative feelings about her father.
It was entirely within the father’s reach to adduce full evidence of his financial position and working arrangements. In the absence of such evidence the court simply has to do the best with what it can. The father has failed to support the child, and until the payment of the $16 500 by his brother, failed to pay assessed child support.
This speaks strongly of a poor attitude to the child. It suggests that he will only support the child if she lives with him. This is consistent with his proprietorial approach to her. It is one which is coloured by his attitude to the mother. It demonstrates a lack of commitment to the child.

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of her parents or any other child, or other person (including any grandparent or other relative of the child), with whom she has been living.

Dr B opined that a “reversal of the care arrangements would be potentially significantly damaging to this child”. In relation to the child spending time with the father Dr B said in oral evidence:
Drawing on my experience and the age of [the child], and given the specific personality features of both the mother and the daughter and the level of what I would consider to be demonstrable defiance, I think the court needs to weigh quite seriously the risks associated with this child demonstrating absconding or running away behaviour. And I would be quite hesitant to advocate such a dramatic pathway because of this child’s level of stated defiance that she would almost most likely just do that because. And given my assessment of her personality I would say that’s almost a given so that then the next question is how would we collectively respond to that when it happens without attributing any blame to it other than the fact that [the child] decided to activate a pre-existing thought with or without cause for it. How do we respond to it then? Are we then dragging [the child back] to the father’s house kicking and screaming? At which point I have got visions of the Queensland Italy case. But that can – that new system can be made if there’s a definite breach of the old system. But to marry those two systems, the two family systems together, means that this child must traverse both worlds. We’re not going to separate this child from her previous existing world unless we do what was done to this child five years ago. And I’m not sure the court would countenance that.
The reference to five years ago is of course a reference to the child not seeing her father since April 2011.
Dr B said:
And do you consider that it would ever be in [the child’s] best interests to have a considerable break in the relationship with her mother? --- No. Because all we’re doing is then mirroring history of what the mother has precipitated earlier, so, no, the risk of damage to this child would be enormous.
I take Dr B’s opinion strongly to be that it would not be in the child’s interests to live with anyone other than her mother or for her, at present, to spend time with her father. I accept that opinion.
This consideration substantially, if not decisively, militates against the court now making orders for the child to live with or spend time with the father. That is so, whether one considers the short term or the longer term.

The capacity of each of the child’s parents, and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

It is clear that the mother provides appropriate care for the child. Her physical needs are well looked after.
Dr B was very concerned about the child’s attendance at school.
The evidence of the child’s attendance at school is not entirely clear as the attendance records and the school reports differ.
In 2012 the child was absent from school for 37 whole days and 14 partial days according to the attendance record. A partial day includes the child being late by five or ten minutes as happened on some occasions. It is to be recalled that the mother was very ill during this year.
In 2013 the child was absent for 28 whole days (as far as can be seen – some pages of the records have been poorly copied) and 15 partial days (according to the attendance record) or 23 whole days and 13 partial (according to the Semester 1 and 2 Reports).
In 2014 the child was absent for 28 whole days and 15 partial days (according to the Semester 1 and 2 Reports).
In 2015 the child was absent from school for 16 whole days and 9 partial days (according to the attendance register) and 11 whole days and 4 partial days (according to the Semester 1 and 2 Reports).
On any view the child’s attendance in 2015 has improved. Notwithstanding her absences, throughout this period her school reports have been favourable and positive. The Semester 2 Report from 2015 said “[The child] is a vibrant participant in all classroom activities and demonstrates an enthusiasm for her learning”.
Whilst the child’s attendance at school has not been good, that poor attendance is, in part, explained by the mother’s poor health. I would not be as critical as Dr B who felt that the mother’s parenting ability was shown to be compromised by the school attendance.
Dr B was concerned that the mother continued to have the child sleep in the mother’s bed and that she exposed her to intensely personal videos filmed by the mother describing her difficulties dealing with cancer.
He also said that the mother’s close involvement in politics with her gave him some doubt as to the capacity of the mother to meet the child’s emotional needs. He described the child and the mother as being enmeshed (Second report, [47]).
After the mother was diagnosed with cancer, her brother created a Facebook page called “…”. The page was used, in part, to raise funds for the mother’s treatment and the costs of these proceedings. The mother has recorded many very personal videos explaining her difficulties and anguish arising from them. The child has access to the page and has presumably seen the videos. What impact that may have had on the child is unexplained in the evidence, other than for Dr B’s comments. It is to be remembered, however, that the child has been a close member of the household throughout the mother’s frightful illness. In the absence of evidence, it is not clear to me what further impact accessing the Facebook page would have on the child.
It is convenient to digress for a moment. The father was very critical of the mother because on that page she lists members of the Atiyeh family, indicates that they have been blocked from accessing the page and asks them to respect her privacy and refrain from seeking to view the page’s content.
The father has not respected that wish.
The father’s criticism is that the mother, by referring to his family as she did, has publicly defamed him and his family.
In the post in which members of the Atiyeh family are named, the following two paragraphs appear:
For those who do not know me I have been bashed, kicked, beaten, chased off the road, strangled and bashed to within moments of my life. I have suffered immensely but I swear on the one that created me it is this suffering that has made me resilient.
…
Please peeps if you know this family I kindly ask you to refrain from passing on anything you see here. This page is meant for us to fight cancer and educate ourselves, not to be used to further traumatise my family…
(Exhibit 33, tab 11; as per original)
It is likely that the child has seen those comments although they are unlikely to add anything to her knowledge of the mother’s opinion of the father and his family.
The real significance of the page and the father’s reaction, however, is to illustrate the great divide between the mother and father and their respective families. It also exemplifies the deep seated lack of respect for each other.
Notwithstanding his concerns which I have just noted Dr B made his view that the child should remain living with the mother quite plain saying that agreeing that keeping the child in her current environment “is the least worst option”.
The father on the other hand according to Dr B maintains a “proprietal” view of the child expecting her always to simply do as he wishes. In a sense this is starkly brought out by the attempted reintroduction of the child to her father with Dr B. Dr B made it quite plain to the father that when he first saw the child he should not bring gifts but rather should write a letter to the child expressing how the father thought the child felt. The father did not write a letter but rather turned up with a card and an Apple iPad. Dr B said of this:
Whilst I am sure this was well intentioned, it illustrates a somewhat simplistic perception that a gift will fix things, but also evidenced [Mr Atiyeh’s] unwillingness and/or inability to acknowledge [the child’s] clearly articulated concerns – of which he was well aware.
(Third report, [9])
Dr B noticed that the child’s response was to perceive the father as attempting to buy her affections leading her to return the gift rather than write a letter of thanks.
When asked what kind of things would have to change in the father’s life to make a therapeutic intervention work Dr B said:
I’m not sure what he needs to change in his life as opposed to what he needs to change in his – himself in his mind. So it’s more an attitudinal shift, potentially his attitude to females and then his attitude to children and then, obviously, specifically his attitude to his female child – his daughter. And then his capacity to understand and empathise with her position and her stated views and actually reflect on those sufficiently to give them respect and to acknowledge them and to work positively to try and readjust them.
The father’s position was clearly asserted in his evidence. It is his view that all of the communication difficulties between him and the mother are her fault. It is her fault that the child does not want to spend time with him. He did not think that the child would be intimidated by his behaviour on 8 April 2011. Quite simply, in his mind he has done nothing wrong. I am therefore very pessimistic about any capacity in the father to change his views and approach. Such a change is essential if a reintroduction process is to work. I find that the father’s attitude is such that he is unlikely to change and thus any attempted reintroduction will fail.
A number of issues support this finding. The first is that the father has consistently proposed changing the child’s school without any consideration of the effect of the change of her routine or the damage that it might do to relationships with her friends.
I posed the question to the father as to what he would do if the child were ordered to spend time with him and she refused to get out of the car to go with him. All the father could say was that he would engage with the child but did not say or explain what that engagement would entail. He said he hoped that he would have the assistance of a professional to help him cope with that circumstance. The father said that he attended on Mr HH to assist him to relate to the child. However, he attended only twice.
The father had little idea of the cost and expense of caring for the child other than to say that his brother would assist him with money if necessary.
The evidence, in particular from the father’s sisters, comfortably establishes that when the child was regularly spending time with the father pursuant to the orders made in 2010 he was working long hours six days a week. The primary care of the child fell largely upon his relatives. Even today the father did not see a difficulty with that notwithstanding the orders that required him to keep the child substantially in his care during that time.
The father submitted that his relationship with Ms C and his child demonstrated his ability to nurture a relationship with the child. It is sufficient to say that, even accepting Ms C’s evidence, it is not sufficient to dispel the matters to which I have just referred.
All these factors support the opinion of Dr B that the child should remain in her mother’s care. I accept that opinion.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

These issues have largely been discussed above.
In relation to the mother it is necessary to add that she has recently taken extended trips overseas without the child. Although some of these trips have been associated with her cancer treatment, these trips have also involved trips to spend time with Mr Q. During these extended trips the child was left in the care of the maternal grandparents.
As to the father it is necessary to simply refer again to his failure to comply with the orders made by Le Poer Trench J in 2010. Indeed his evidence was that he had not completely read the orders made by his Honour. The father has not read or fully read all of the reports of the family consultant or Dr B. Such an attitude hardly encourages confidence in the suggestion that his views and approach to parenting will readily change.
Indeed each of the parents remains implacably of the view that the other parent is entirely to blame for the present situation. Such views cast significant doubt upon the prospects of success of any proposed reintroduction.

Any family violence involving the child or a member of the child’s family

This has already substantially been dealt with.
I have already referred to the cars driven by the father. It seems that these vehicles attract the attention of the police. The father has been stopped by the police on many occasions for the purpose of searching the car. The father’s response, as he described it, is that he vigorously asserts his rights. This has led to a number of additional police attending, sometimes with up to ten police vehicles arriving. Friends and relatives of the father also arrive and a scene ensues that, on occasions, has lasted for some hours.
The father has not been convicted of any offence arising out of these events. Indeed, he relied upon a letter from the NSW Crime Commission which advised that he had not been and was not under investigation by it in relation to any dealing in illegal drugs.
Dr B read the police reports of those events. He said that the father’s conduct showed a pattern of aggressive and abusive conduct with little or no respect for authority.
This, of course, is not family violence. It is, however, consistent with the aggressive behaviour of the father towards the mother and child as is set out earlier.

Whether it would be preferable to make the order that would be least likely to lead to further proceedings

As have been demonstrated in these reasons already, there have been extensive proceedings involving the child since 2012. The father’s ultimate proposal, handed up on the last day of hearing, was that the child and the father engage in such therapy as Dr B thought appropriate to reintroduce them to each other. After no more than six months Dr B was to prepare an updated report including recommendations for further therapy and any recommendation as to the father’s ongoing time with the child or future relationship. The matter was to be adjourned pending that therapy and the receipt of the report. The court was to note that the goal of the adjournment was to reintroduce the relationship between the child and her father.
It is clear from the form of that order and from the submissions that were made by counsel on his behalf that the father intends that there be a reconsideration of the parenting arrangements after the therapy and the receipt of the report. That is to say, the father proposes that there will then be a complete reconsideration of the parenting arrangements in which I anticipate that the father will seek orders for the child to spend time with him. He may press his application for the child to live with him. This is because the father asserts that the child is at risk of harm in her mother’s care.
It is necessary therefore to weigh the possible benefits of reintroduction therapy against the risk and undesirability of further litigation. Dr B was very cautious about the prospects of “success” in relation to the reintroduction therapy. Whilst he described the ultimate goal as the child spending time with her father, he described a successful outcome as one where the child simply formed her own view of her father without the influence of her mother. He said:
Is a failed attempt going to have a negative impact on [the child]?---I’m not sure in the sense of what failure would be defined as. And in the sense of at least a future reconciliation for both father and daughter which I would suggest would be inevitable, at least the father can certainly say hand on heart that he had done absolutely everything possible and the daughter then having an opportunity to say, well, I didn’t know. I was too young to understand and I was too influenced by my mother at that point in time.
Implicit in that is that the child may form an undesirable view of her father and not wish to spend time with him.
I have found that any reintroduction therapy is unlikely to succeed. The mother will have difficulty in supporting and helping the child engage in the therapy. The father will not change. He and his family will maintain their proprietorial view of the child. I accept Dr B’s opinion that in that case, the child remains “at risk of increased harm by virtue of a forced re-unification process” (Third report, [13]).
As best as can be predicted on the evidence it is much more likely that the reintroduction therapy will not succeed. I take Dr B’s opinion to be the same. The issue is whether it is worth another attempt. Dr B is of the view that the possible benefits would outweigh the risks.
Without apportioning blame to either party, there have been three failed attempts at reintroduction pursuant to Court orders. The child is rapidly getting to an age where a further attempt should not be made (accepting the opinion of Dr B to that effect). The reintroduction therapy would not be the end of the proceedings but yet another step in the proceedings. I do not consider that maintaining these bitter proceedings, of which the child must be all too well aware, is in her best interests. It is not in her best interest for her to undertake a process which could damage her, and possibly the relationship with her mother, if that process will not succeed. I find that it is very much more likely to fail than to succeed.
That being so, it is not in the child’s best interests to maintain the proceedings. This consideration speaks powerfully against the orders sought by the father.

The appropriate orders

Section 61DA(1) provides that the court must apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. That presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence. I have found that to be the case so the presumption in favour of equal shared parental responsibility does not apply. The presumption may also be rebutted by evidence that establishes that it is not in the interests of the child for there to be equal shared parental responsibility.

It would not be in the child’s best interests for there to be equal shared parental responsibility. The intractable disputes and conflict between the parents speak powerfully against this – there is no realistic prospect of civil discussion between the parties on any issue let alone any agreement. Indeed bringing the parents into contact even for the limited purpose of dealing with significant events in the child’s life is likely to lead to a resumption of the bitterness and conflict of which the child would become aware. This is clearly not in her best interests.
Having regard to the findings made earlier about the close relationship between the child and the mother and the appropriate level of care given to her by her mother, the only appropriate order is that the child should live with her mother. Indeed the orders proposed by the father provide for that order to be made, at least on an interim basis.
The same considerations support there being no orders for the child to spend time with her father. The s 60CC considerations taken as a whole do not support such time and an order for time is unlikely to be accepted by the child. As Dr B points out, there is no benefit to the child in such an order – indeed it is likely to be harmful.
The essential issue is whether there should be a fourth attempt at reintroduction therapy. The advantages of successful reintroduction of the child are obvious. It would be in the child’s long term interests for her to have some sort of relationship, particularly a meaningful relationship, with her father. Dr B proposes that the Court would in effect force the mother to cooperate by making orders requiring her to ensure the child attend reintroduction therapy. It is difficult to reconcile this with his suggestion that the child is strong-willed and could possibly just run away from enforced contact with the father. Dr B’s alternative was to make an order that would entice the mother to support the reintroduction process by making an order that the child was not permitted to leave Australia until a certain number of specific attempts for reintroduction had been undertaken. I am not at all sure that such a course is likely to have any effect on the child.
The child does not want to be involved. She does not want to see her father and as I have found, she has, at least in part, a rational basis for holding that view. Forcing her to attend the sessions runs the risk of damaging in some way the relationship between her and her mother.
A further difficulty is that the father is not likely to change. Whilst as Dr B has said, the father has made some attempts to change, they are little and very late.
The suggestions of Dr B focus on the mother. They do not address the difficulties posed by the attitude of the child or the father. I do not see, in any event, that they will lead to a successful reintroduction. I do see the orders which required the mother to ensure the child’s attendance at reintroduction therapy leading to further litigation, including contravention applications.
Nonetheless, the decidedly negative approach of the mother to the father and her inability to force the child to do things she does not want to do also speaks against a further attempt at a reintroduction. For such a process to be successful each of the child, the mother and the father must support it.
This is a difficult case. I am well aware that an experienced, well-recognised clinical psychologist sees value in a further attempt to reintroduce the child to her father. I accept that if that could be achieved that would be an excellent outcome for the child. I also recognise that an experienced ICL supports that approach. However, having regard to the findings that I have made and particularly the findings I made in relation to family violence, of which Dr B did not have the benefit, I am of the view that on balance a further attempt should not be undertaken. Crucially, Dr B’s recommendation was based on his view that the child’s fear was not rationally based. I have found it was rationally based. Dr B was not supportive of a forced reintroduction in that case.
The findings that I have made as to the various s 60CC considerations support this course. It may be suggested that there is nothing to be lost and much to be gained by a further attempt. That is not so. The child will be very stressed and upset by the process. There is a risk of harming her relationship with her mother.
Orders should now be made on a final basis. It follows orders will be made that the mother will have sole parental responsibility for the child who will live with her. There will be no orders providing time for the child to spend with her father. However, one hopes, as Dr B opined, that at some stage the child will wish to reconnect with her father. Therefore an order will be made that if she indicates that she wishes to do so the mother is to take steps to facilitate such contact. In support of that hope there will be orders providing for the father to send the child cards and presents on appropriate days and orders requiring the mother to provide to the father school reports and school photographs.
I have decided not to make an order restraining the mother from removing the child from Australia. Given the orders I am making, I do not see any benefit in them. If anything, such an order could adversely impact on the child by affecting the relationship between the mother and her new partner.
Importantly, there is this consideration. There is no reasonable likelihood of orders being made in the foreseeable future for this child to live with the father. That is so even if there is a successful reintroduction (bearing in mind that Dr B regarded the child making up her own mind of the father as a success).
The s 60CC considerations also militate against orders for the child to spend time with the father. There have been three failed reintroduction attempts. The time has come to accept the reality of the position. I do not see that a further reintroduction in six to12 months will take the matter any further other than to continue to surround this child with continued litigation.
It follows that the matter should be finalised now by the making of the orders just discussed.

I certify that the preceding two hundred and ninety-seven (297) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 21 June 2016.

Legal Associate:

Date: 21 June 2016

[2016] FamCA 494

21 June 2016 (Amended 5 October 2016 pursuant to r 17.02 of the Family Law Rules 2004)

Key Legal Topics

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Family Law

Legal Concepts

Procedural Fairness

Remedies