Ishak & Khalaf

[2021] FCCA 900

FEDERAL CIRCUIT COURT OF AUSTRALIA

Ishak & Khalaf [2021] FCCA 900

File number(s):	PAC 5253 of 2020
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	5 May 2021
Catchwords:	FAMILY LAW – Interim Parenting – father convicted of assault occasioning actual bodily harm – allegations of family violence – whether an unacceptable risk of harm – whether an order is to be made for sole parental responsibility for the children – whether the children are to spend any time with the father – order for no time.
Legislation:	Family Law Act 1975 (Cth), ss 61DA, 69ZL
Cases cited:	Goode v Goode [2006] FamCA 1346 Keats & Keats [2016] FamCAFC 156
Number of paragraphs:	48
Date of hearing:	29 April 2021
Place:	Parramatta
Appearing for the Applicant:	Mr Morris
Solicitors for the Applicant:	Circle Bridge Legal
Appearing for the Respondent:	Ms Cruz Montalvo
Solicitors for the Respondent:	Legal Aid NSW Refugee Service
Appearing for the Independent Children’s Lawyer:	Ms Newland
Solicitors for the Independent Children’s Lawyer:	JLM Family Lawyers

ORDERS

PAC 5253 of 2020

BETWEEN:

MR ISHAK

Applicant

AND:

MS KHALAF

Respondent

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	5 MAY 2021

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1.The respondent mother shall have sole parental responsibility for the children X born in 2011 and Y born in 2014.

2.The children shall live with the respondent mother.

3.The children shall spend no time with the applicant father.

4.Within 7 days, the respondent mother is to contact B Families and enrol the children in the Anchor Program and thereafter engage the children at the first opportunity and provide to the Independent Children’s Lawyer confirmation of their enrolment.

5.Within 7 days, the applicant father shall do all acts and things necessary to engage in and complete within a reasonable time the “Taking Responsibility – A Course for Men” run by C Counselling and shall provide to the solicitors for the respondent mother and the Independent Children’s Lawyer written confirmation of the completion of such course.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

.

IT IS NOTED that publication of this judgment under the pseudonym Ishak & Khalaf is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE OBRADOVIC

1. These are short form reasons pursuant to s.69ZL Family Law Act 1975 (Cth) (“the Act”).

2. On 29 April 2021, the Court heard the father’s application for interim parenting orders with respect to the parties’ two children:

   (a)X born in 2011; and

   (b)Y born in 2014.

3. The children have not spent any time nor communicated with their father since 18 August 2019.

4. There is at present an Apprehended Domestic Violence Order (“ADVO”) in place for the mother’s protection against the father. That order expires on 15 April 2022. It includes an order for no contact.

5. The father has also been charged and found guilty of:

   (a)Assault occasioning actual bodily harm (being a fracture of a finger);

   (b)Intimidation; and

   (c)Common assault.

6. The father is due to be sentenced in 2021 at the District Court of New South Wales in Suburb D.

7. The incidents which gave rise to the ADVO and the conviction occurred on 16 and 17 August 2019, described in detail further below in these reasons.

8. It is agreed between the parties that:

   (a)The parties were married in 2010 in Country E;

   (b)In 2014, the father travelled to Australia and stayed living in Australia until the mother and the children arrived in 2017. During this period there were brief periods of time when the father travelled to spend time with the children either in Country E or in Country F;

   (c)In 2018 the mother and the children returned to Country E where they stayed for 6 months; and

   (d)The parties separated in August 2019.

9. The mother in her evidence outlines the history of the parties’ relationship. The mother’s evidence is that physical, sexual and verbal abuse of her by the father commenced early on in the parties’ marriage and that between 2010 and 2014 she was subjected to such abuse.  Between 2014 and 2017, whilst the father lived in Australia and the mother and children in Country E, the mother says she felt safe from the father’s abuse (except for periods of time when they were together). Her evidence is that when she migrated to Australia with the children in mid-2017, the abuse by the father continued and that it occurred in the presence of the children. The mother says that when she returned to Country E in 2018 it was as a result of a separation, and that she had left with the children due to family violence perpetrated by the father. Whilst in Country E, the mother says she lived with her family, who pressured her into returning to her marriage with the father. The mother says that the father was a disinterested father who did little for the children or with the children.

10. The father likewise in his evidence outlines the history of the parties’ relationship. He denies the allegations the mother makes and speaks of his relationship with the children, and his involvement with the children. The father says that after the parties were married they “settle[d] into married life very well, this was expected as we had always a good relationship prior to our marriage. After our Marriage, we had a good relationship got along very well together [sic].”

    Incident on 16 August 2019 and following

11. The Court had before it, as an agreed tender, the transcript of a “conversation” between the parents on 16 August 2019 and the audio recording of that “conversation” was played in Court. The voice of a child could also be heard at the commencement of the recording which lasted for 6 minutes and 20 seconds.

12. The transcript and audio of that “conversation” reveal:

    (a)The father berating the mother for not having his dinner ready at 7pm;

    (b)The father telling the mother that on the days she goes to the market to do grocery shopping she should prepare the meals in the morning and then go;

    (c)The father berating the mother for there being “nothing” at home to eat and “having to take burgers” (from home) to eat;

    (d)The father belittling the mother by saying that there is “discord that is going around in your mind” and “There is a lot of discord in your mind. I can see all of it”;

    (e)Screaming at the mother at 7pm that “It is seven o’clock” (where his dinner is not ready to be served at 7pm);

    (f)The father berating the mother for purchasing bread when he had forbade her from purchasing bread the week before;

    (g)The father screaming at the mother whilst saying “I will not speak calmly” after she asked him to do so;

    (h)The father screaming at the mother to “Shut up”;

    (i)The father saying “I am tired of your nonsense” while there was a commotion which could be heard (the mother says he kicked a table and began throwing items violently at or around this time);

    (j)The mother saying to the father that her mind and her heart were exhausted and that “It is the same thing every day… Do this. Do that. Do this. Do that…” to which the father replied “Did you behave well with me? ... One second. Now you keep listening… I have been waiting for this day when you would speak this nonsense, and then I could do this to you. Alright. I will show [recording cuts off].”

13. At this point, the father attempted to take the telephone (with which the mother was about to call the police and with which she had recorded the conversation) from the mother and in the course of twisting her hand and pulling the phone out of her hand causing one of her fingers to be fractured.

14. The father took the mother to see a doctor that night. The mother alleges that before he took her he said “You’re behaving like a child. I’ll take you to see the doctor but if you go to the police or tell anyone what happened to you I’ll kill you.” Whilst at the doctor’s surgery, the mother confirmed that she had slipped while cooking, instead of telling the doctor the truth about what had occurred. The mother was referred to G Hospital that night, where the father took her. Due to the hospital being busy, they did not wait. The following day the mother obtained an x-ray of her finger which confirmed a fracture.

15. The mother says that the father “forced her to stay in the bedroom” after the x-ray and that he “did not go to work after the incident and monitored me”.

16. The mother called the police on 18 August 2019 when she says the father returned her phone to her. The father was arrested and charged. The father was released from gaol on strict bail conditions. A provisional ADVO was issued by the police and the mother and the children left the former matrimonial home. The children have not seen nor communicated with the father since this time.

17. In addition, the father’s evidence before this Court included answers the father provided to the police upon being arrested on 18 August 2019. The father said to the police:

    (a)That the mother was not completing her duties, including making breakfast, doing the housework or preparing lunchboxes;

    (b)That he never hit or abused the mother;

    (c)That no-one listens to his side of the story but everyone listens to the victim’s story;

    (d)That “their relationship was not like it should be”

    (e)That the mother was “rude, and shouting, and was bitter towards him” (this does not appear to be borne out by the transcript or audio of the recording of 16 August 2019 being part of Exhibit 1);

    (f)That he was an aggressive man, but that he didn’t want to harm anyone;

    (g)That he sometimes is aggressive and loses his temper at his wife, and that by this he means that he gets stressed very easily;

    (h)That he accepts that when he tried to take the phone from the mother that her hand may have twisted and sprained, but he denied that it was done in an aggressive manner, but that it was with a “bit more force”; and

    (i)He agreed that the broken finger was a result of him grabbing the mother’s phone from her.

    Allegations of Family Violence

18. In addition to the matters which gave rise to the criminal convictions of the father, the mother makes many other serious allegations of assault and physical and verbal abuse by the father, not only of her but also of the children prior to 16 August 2019. The mother also makes allegations of sexual assault against the father.

19. The mother’s allegations include the following:

    (a)That during the parties’ marriage the mother would need to ask the father for permission to leave the home;

    (b)That during the parties’ relationship, the mother did not have access to a bank account and had to ask the father for money;

    (c)That the father yelled at the mother, swore at the mother, called her derogatory names, threw items at her, broke plates and damaged furniture;

    (d)That the father was physically violent towards the children by slapping them across their faces and bodies;

    (e)That the father has threatened to take the children from her and that she would never see them again;

    (f)That if the mother reported the incident of 16 August 2019 to the police that he would send her back to Country E and take the children from her; and

    (g)That the father had threatened to kill the mother if she told anyone about the family violence.

20. The father denies all these allegations and through his solicitor says to the Court words to the effect “How is he supposed to prove that he didn’t do these things?” Various other submissions were made, including that there was no corroborating evidence of any of the allegations except for that which occurred on 16 August 2019, and that the Court could not make findings about the abuse and assaults alleged.

21. Whilst it is correct that in interim proceedings the Court is curtailed in what it can find due to the nature of the interim hearing being itself limited the Court is still obliged to assess risk.

22. Part of that risk assessment includes considering the evidence forming part of Exhibit 1 being the assessment of the mother’s protection visa application. Exhibit 1 was an agreed tender. The protection visa assessment includes references to country information and various findings by the Minister’s delegate.

23. The country information shows that Country E is a highly patriarchal society and women occupy very limited roles and face discrimination and restrictions in all facets of life. It shows that women are excluded from many areas of daily life, that domestic violence is widespread, and that women may be subject to “honour crimes” and abusive marriage practices. The country information shows that women in Country E are required to conform strictly to social norms and their security and ability to exist is heavily contingent upon their male relatives.

24. The findings of the delegate include the following:

    (a)That the mother gave a credible account of the father’s controlling nature, noting that she was only allowed out of her house in Country E and Australia with his permission; and

    (b)That the mother’s family are unsupportive of her and want her to reconcile with the father.

25. The reason that these matters are relevant is that they are supportive of the mother’s stated fears of the father and the reasons for those stated fears. In addition, Exhibit 1 contains material from the Department of Communities and Justice which discloses an opinion that the father’s threat to kill the children is “highly plausible”.

    COURT’S DETERMINATION

    Legal Principles

26. The Full Court in Goode v Goode [2006] FamCA 1346 mandated that the legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.

27. As stated by the Full Court in Keats & Keats [2016] FamCAFC 156 at [9] , in respect of the conduct of interim proceedings:

    …the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.

28. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.

    Parental Responsibility

29. On the basis of the father’s criminal conviction and the concessions made by the father in respect of the events giving rise to that conviction, the Court is satisfied that the father has engaged in family violence.

30. The mother deposes to being fearful of the father and that she receives psychological assistance for anxiety and depression resulting from the acts of violence perpetrated by the father towards her. If this is correct, then her capacity to make joint and/or shared decisions with the father will likely be severely impaired. Furthermore and importantly, there is at present no communication between the parents and the terms of the ADVO prohibit any contact by the father towards the mother.

31. In all of the circumstances of this case it would not be in the children’s best interest for the parents to share parental responsibility.

32. As such, the presumption of equal shared parental responsibility has been rebutted.

33. It is appropriate however, that an order be made for the mother to have sole parental responsibility in circumstances where on both parties’ cases, the children will remain living with the mother in the interim period at least.

    Time between the children and the father

34. The father seeks interim orders to spend time with the children on a progressive basis, commencing two hours three times per week and progressing over a five month period to overnight each Wednesday and each alternate weekend from Friday to Sunday.

35. Both the Independent Children’s Lawyer and the mother move the Court for orders that the children spend no time with the father.

36. The children have been living primarily with the mother since their birth. There is no evidence to suggest that the mother does not meet the children’s needs or that she lacks appropriate parenting capacity. Indeed, it appears that the mother is a loving caring parent who does her best for her children. Given the primary care which the mother provides, it is inferred that the children likely have a strong and loving attachment to their mother.

37. The Independent Children’s Lawyer has met with the children, and they have both indicated that they have limited memories of the father. Neither child expressed a view that they wished to spend time with the father.

38. The children have historically had limited time with the father, and they have not spent any time nor have they had any communication with the father since August 2019. It may be that the children do not have a meaningful relationship with the father, although such a finding could not at this stage be made. The Independent Children’s Lawyer and the mother submit that the quality of the children’s relationship with the father ought to be explored by an appropriately qualified expert and be the subject of expert evidence.

39. The father submits that the children should resume their relationship with the father immediately, and that any delay in the resumption of such a relationship would render nugatory any assessment of that relationship. This submission is rejected for two reasons: firstly, there is little if any evidence of the father’s capacity to have a meaningful relationship with the children and secondly, if the children do not have a meaningful relationship with the father at least in part due to the family violence perpetrated, then any reintroduction of the children to the father without therapeutic involvement might have a significant detrimental effect on their long term health. The children should not be experimented with in the manner suggested by the father.

40. The children (or at least one of them) have been exposed to family violence as a result of the events of 16 August 2019, which occurred in the presence or hearing of the children (or at least one of them). The mother asserts that the children had been exposed to other instances of family violence and that they are frightened of the father.

41. Even if time was to be supervised, the risks which have been identified may not be capable of being ameliorated. While the Court accepts that a supervisor would likely prevent the father from being physically and verbally abusive towards the children, a supervisor may not be able to recognise covert signs of distress or trauma which the children may experience when faced with the perpetrator of violence, and the damage may be done.

42. It would appear from the evidence in the father’s case and the submissions made on his behalf that the father has a very limited understanding of family violence and its impact, and that he has, while on the one hand pleading guilty to assault and conceding coercive and controlling behaviour through the submissions made on his behalf in respect of the incident of 16 August 2019, not fully admitted responsibility for his actions.

1. This much is clear through his sworn evidence and his minimisation of his actions during the police interview on 18 August 2019. The father attempts to minimise his actions by deposing to his blood sugar level dropping (he is a diabetic) and that he now understands “that if your blood sugar level drops it affects your mental state of mind and can make you agitated.” Even if this is correct, it cannot excuse the father’s behaviour which was not (on his own evidence) limited to what occurred on that day. There is the berating of the mother for purchasing bread in circumstances where he had in the previous week forbidden her from doing so. The coercion and control in the very idea that a husband can “forbid” a wife from doing something seems to be completely missed by the father.

2. If the mother’s allegations of physical and verbal abuse, including sexual assaults are true, then she has been a victim of long standing and serious family violence. She has, on her evidence, been unsupported by her extended family members and indeed encouraged to go back to an abusive relationship.

3. The mother’s evidence is that she receives psychological support and that she suffers from nightmares, flashbacks and poor sleep as a result of the father’s threats and violence. If this is correct, then there are significant risks to her long term health as a potential consequence of the children spending time with the father, where she maintains that she is fearful of the father and that he will carry out his threats. It is likely that any significant deterioration in the mother’s mental health will likely have a detrimental impact upon her parenting capacity and therefore a likely detrimental impact on the children.

4. In all of the circumstances, and weighing up all of the risks to the children, the Court finds that it is in the children’s best interest that at present there be an order for no time with the father.

   Other matters

5. The Independent Children’s Lawyer moves the Court for orders for the children to be enrolled in the Anchor Program with B Families and for the father to engage in and complete the “Taking Responsibility – A Course for Men” course run by C Counselling. Both of these orders are appropriate and would respectively hopefully see the children supported with the issues that can arise when their parents separate and would hopefully see the father taking actual responsibility for his actions (at least in so far as occurred on 16 August 2019).

6. For those reasons, orders as set out at the forefront of these Reasons for Judgment are made.

49          I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:

Dated: 5 May 2021