Ismat & Attia - [2023] FedCFamC2F 530

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ismat & Attia [2023] FedCFamC2F 530

File number(s): PAC 1642 of 2019

Judgment of: JUDGE NEWBRUN

Date of judgment: 9 May 2023

Catchwords: FAMILY LAW – CHILDREN – Best interests of child – Orders made.

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

Division: Division 2 Family Law

Number of paragraphs: 203

Date of hearing: 17–19 April 2023

Place: Parramatta

Counsel for the Applicant: Mr Butters

Solicitor for the Applicant: Legal Aid NSW Suburb D Family Law

Counsel for the Respondent: Mr Keserovic

Solicitor for the Respondent: Bell Lawyers

Counsel for the Independent Children's Lawyer: Mr Ladopoulos

Solicitor for the Independent Children's Lawyer: Sarah Bevan Family Lawyers
ORDERS

PAC 1642 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ISMAT
Applicant

AND:
MS ATTIA
Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE NEWBRUN

DATE OF ORDER:

9 MAY 2023

THE COURT ORDERS:
1.That the children X (male, born in 2015) and Y (male, born in 2017) (“the children”) live with the mother.
2.That the mother have sole parental responsibility for the care, welfare and development of the children.
3.That the mother:
(a)Notify the father of any proposed decision relating to the long-term care and welfare of the children and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made;
(b)Take into consideration any views expressed by the father, in writing, about the proposed decision; and
(c)Notify the father in writing of her final decision about the issue.

4.That the children spend time with and communicate with the father as follows:
(a)Stage 1: For 3 hours each alternate Sunday unsupervised for 8 months, from 10:00 am to 1:00 pm.
(b)Stage 2: Commencing January 2024, each alternate Sunday from 10:00 am to 4:00 pm for 12 months.
(c)Stage 3: Commencing January 2025:
(i)Each alternate weekend from Saturday 10:00 am until Sunday 4:00 pm;

(d)Stage 4: Commencing at the beginning of Term 1 in 2026:
(i)During school terms, each alternate weekend from Saturday 10:00 am until Sunday 4:00 pm; and
(ii)During the April, July and September school holidays for at least 1 week; and during the December school holidays, for at least 2 weeks, with such time to agreed between the parties in writing at least 7 days prior to the commencement of the school holidays, and failing agreement, the first half with the father in odd numbered years and the second half in even numbered years.
A.For the purpose of these Orders, the school holidays are deemed to commence at 9:00 am on the first day after the public-school term ceases and changeovers shall occur at 6:00 pm at the commencement of each parties’ time with the children.

(e)Otherwise as agreed between the parties in writing.
(f)On Special Occasions, as follows:
(i)On the children’s birthdays, on the Sunday immediately following the children’s birthday from 10:00 am to 2:00 pm.
(ii)On Easter, commencing 2024, and each even numbered year thereafter, from 10:00 am to 2:00 pm on Easter Day; and commencing 2025, and each odd numbered year thereafter, from 2:00 pm to 6:00 pm on Easter Day.
(iii)On Boxing Day in 2023 and 2025 and from 10:00 am to 2:00 pm and on Christmas Day in 2024 from 10:00 am to 2:00 pm.

5.Each parent is to communicate with the children by telephone or video call, during periods where the children are not otherwise in that parent’s care as agreed between the parties, or failing agreement, each Thursday and Saturday between 6.00 pm and 6.30pm.
(a)For the purpose of this Order, the parent with whom the children are spending time with is to ensure that the children are available to take the call and the mobile shall be charged, switched on and in an area with reception.

6.That in the event of the children suffering a medical emergency or illness requiring medical attention, the parent with whom the children is spending time, must as soon as practicable:
(a)Notify the other parent;
(b)Provide the other parent with the full details of the practitioner or medical facility upon which the children attend as soon as practicable; and
(c)Advise the medical practitioner or medical facility that the other parent has authority to access the children’s medical records and other information upon their request.

7.That each party shall authorise the children’s treating medical practitioner/s to supply information concerning the children to each parent.
8.That these Orders provide authority for each parent to make arrangements at the children’s day care centre, school and after school care to obtain the following information and documents at their own cost:
(a)A copy of all school reports and school photo order forms for the children.
(b)Notification for school activities that parents are invited to attend.
(c)Notification of parent/teacher nights.

9.Each parent will be entitled to attend all events involving the children which are routinely attended by parents, including:
(a)Sporting activities, events and functions;
(b)Extra-curricular activities, events and functions that allow for parental attendance;
(c)School events, activities and functions.

however, the father shall not approach the mother at any such event.
10.That each parent be restrained by injunction from:
(a)Discussing these proceedings, or showing any document related to these proceedings, to the children;
(b)Denigrating the other party, or members of the other party’s family to the children or in the hearing or presence of the children; and
(c)Administering any physical or corporal punishment upon either of the children or allowing any third person to do so.

11.That for the purposes of facilitating the children’s spending time with the father, unless the mother and the father otherwise agree in writing:
(a)changeover shall occur at the front entrance of Shopping Centre G adjacent to the Store H at the commencement and conclusion of time;
(b)the father shall not be present at changeover unless the mother has previously indicated that she will not be attending changeover herself;
(c)the mother and the father notify each other in writing of the person who will be attending at changeover on their respective behalf (unless the person has previously attended changeover on behalf of a parent); and
(d)the mother and father shall ensure that any person attending changeover on their behalf is known to the children.

12.That the children’s time with the father shall not progress to stage 3 (i.e. overnight time) unless the father has completed the 1-2-3 Magic parenting course and provided a certificate of completion of such course to the mother.
13.That the mother take all steps to engage in and complete a Keeping in Contact program as soon as practicable and, in any case, within 12 months of the date of these Orders.
14.That the mother shall have sole parental responsibility to apply for a passport for the children.
15.That the children are permitted to travel internationally, without the need for the consent of the father to be provided.
16.That the mother shall be the only person with parental responsibility for the children for the purposes of applying for, and being issued with, an Australian passport for the children.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under a pseudonym Ismat & Attia has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION

A final parenting hearing was held on 17, 18 and 19 April 2023 in respect to the children, X, born in 2015, and Y, born in 2017.
The mother is aged 37, she was born in Country J, and migrated to Australia in 2009.
The father is aged 45, he was born in Country J, and migrated to Australia in 2015.
The parties commenced cohabitation in about 2015, and they separated in about April 2018.
The father did not see the children at all between April 2018 and when Orders were made by the Court in November 2019. On 4 December 2019, after a defended Interim Hearing, Orders were made for the father to spend time with the children on a supervised basis at A Contact Centre at Suburb L.
The father spent time with the children at the Contact Centre on about three occasions in early 2020, however this time ceased because the Contact Centre went into COVID lockdown. Between March and July 2020 time did not occur. In about August 2020 time resumed occurring and continued save for the Christmas period until a further lockdown in June 2021.
After the June 2021 COVID-19 lockdown period ended, the father continued to spend supervised time with the children at the Contact Centre in accordance with the Orders of 4 December 2019. This continued until 17 March 2022.
On 18 March 2022, further Interim Orders were made by consent, providing inter alia for the children to spend supervised time with the father. On 6 November 2022, the father began spending time with the children supervised by M Contact Centre from 1:30 pm to 3:30 pm. The father spent further time supervised by M Contact Centre on Sunday, 4 December 2022 and Sunday, 18 December 2022 from 1:30 pm to 3:30 pm.
On 22 December 2022, an agreement was reached in relation to the father's time with the children transitioning in accordance with the Orders of 18 March 2022 to be supervised by the father's sister, the paternal Aunt.
On 8 January 2023, the father began spending time supervised by the paternal aunt from 12 noon to 2 pm. Although the Orders provided for time to occur on Saturday for a period of four hours, the time was changed to Sunday as the children attend swimming lessons on Saturdays. The time took place for two hours instead of four in circumstances where the time was taking place at the G Shopping Centre.
PROPOSALS
The ICL seeks final parenting orders as set out in his proposed Minute of Order being:
1.That the children [X] (male, born [in] 2015) and [Y] (male, born [in] 2017) (“the children”) live with the mother.
2.That the mother have sole parental responsibility for the care, welfare and development of the children.
3.        That the mother:
a.Notify the father of any proposed decision relating to the long-term care and welfare of the children and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made;
b.Take into consideration any views expressed by the father, in writing, about the proposed decision; and
c.        Notify the father in writing of her final decision about the issue.
4.        That the children spend time with and communicate with the father as follows:
a.Stage 1: For 3 hours each alternate Sunday unsupervised for 8 months, from 10:00 am to 1:00 pm.
b.Stage 2: Commencing January 2024, each alternate Sunday from 10:00 am to 4:00 pm for 12 months.
c.Stage 3: Commencing January 2025:
i.Each alternate weekend from Saturday 10:00 am until Sunday 4:00 pm;
d.        Stage 4: Commencing at the beginning of Term 1 in 2026:
i.During school terms, each alternate weekend from Saturday 10:00am until Sunday 4:00 pm; and
ii.During the April, July and September school holidays for at least 1 week; and during the December school holidays, for at least 2 weeks, with such time to agreed between the parties in writing at least 7 days prior to the commencement of the school holidays, and failing agreement, the first half with the father in odd numbered years and the second half in even numbered years.
A.For the purpose of these Orders, the school holidays are deemed to commence at 9:00 am on the first day after the public-school term ceases and changeovers shall occur at 6:00 pm at the commencement of each parties’ time with the children.
e.        Otherwise as agreed between the parties in writing.
f.        On Special Occasions, as follows:
i.On the children’s birthdays, on the Sunday immediately following the children’s birthday from 10:00 am to 2:00 pm.
ii.On Easter, commencing 2024, and each even numbered year thereafter, from 10:00 am to 2:00 pm on Easter Day; and commencing 2025, and each odd numbered year thereafter, from 2:00 pm to 6:00 pm on Easter Day.
iii.On Boxing Day in 2023 and 2025 and from 10:00 am to 2:00 pm and on Christmas Day in 2024 from 10:00 am to 2:00 pm.
5.Each parent is to communicate with the children by telephone or video call, during periods where the children are not otherwise in that parent’s care as agreed between the parties, or failing agreement, each Thursday and Saturday between 6.00 pm and 6.30 pm.
a.For the purpose of this Order, the parent with whom the children are spending time with is to ensure that the children are available to take the call and the mobile shall be charged, switched on and in an area with reception.
6.That in the event of the children suffering a medical emergency or illness requiring medical attention, the parent with whom the children is spending time, must as soon as practicable:
a.Notify the other parent;
b.Provide the other parent with the full details of the practitioner or medical facility upon which the children attend as soon as practicable; and
c.Advise the medical practitioner or medical facility that the other parent has authority to access the children’s medical records and other information upon their request.
7.That each party shall authorise the children’s treating medical practitioner/s to supply information concerning the children to each parent.
8.That these Orders provide authority for each parent to make arrangements at the children’s day care centre, school and after school care to obtain the following information and documents at their own cost:
a.A copy of all school reports and school photo order forms for the children.
b.Notification for school activities that parents are invited to attend.
c.Notification of parent/teacher nights.
9.Each parent will be entitled to attend all events involving the children which are routinely attended by parents, including:
a.        Sporting activities, events and functions;
b.Extra-curricular activities, events and functions that allow for parental attendance;
c.        School events, activities and functions.
however, the father shall not approach the mother at any such event.
10.      That each parent be restrained by injunction from:
a.Discussing these proceedings, or showing any document related to these proceedings, to the children; and
b.Denigrating the other party, or members of the other party’s family to the children or in the hearing or presence of the children.
11.That for the purposes of facilitating the children’s spending time with the father, unless the mother and the father otherwise agree in writing:
a.changeover shall occur at the front entrance of [Shopping Centre G] adjacent to the [Store H] at the commencement and conclusion of time;
b.the father shall not be present at changeover unless the mother has previously indicated that she will not be attending changeover herself;
c.the mother and the father notify each other in writing of the person who will be attending at changeover on their respective behalf (unless the person has previously attended changeover on behalf of a parent); and
d.the mother and father shall ensure that any person attending changeover on their behalf is known to the children.
12.That the children’s time with the father shall not progress to stage 3 (ie. overnight time) unless the father has completed the 1-2-3 Magic parenting course and provided a certificate of completion of such course to the mother.
13.That the mother take all steps to engage in and complete a Keeping in Contact program as soon as practicable and, in any case, within 12 months of the date of these Orders.
The father seeks final parenting orders in accordance with the ICL’s above proposed Minute of Order.
The mother seeks final parenting orders as set out in her Response to Final Orders filed 2 October 2019 that she have sole parental responsibility for the children and that the children live with the mother and spend no time with the father. The mother also sought orders permitting her to apply for an Australian Passport and permitting the children to travel internationally, without the father’s consent.
MATERIAL RELIED UPON
The father relied upon:
(a)His case outline filed 11 April 2023;
(b)His affidavit filed 6 April 2023;
(c)Affidavit of Ms W filed 6 April 2023;
(d)Affidavit of Dr O filed 14 April 2023.
The mother relied upon:
(a)Her case outline filed 11 April 2023;
(b)Response to Application for Final Orders filed 2 October 2019;
(c)Her affidavit filed 6 April 2023;
The ICL relied upon:
(a)Case outline filed 14 April 2023;
(b)Family Reports of Ms P dated 5 November 2020 and 19 September 2022.
Exhibits
The following documents became exhibits:
(a)Exhibit A: NSW Police facts sheet (Pages 18–21 of mother’s tender bundle);
(b)Exhibit B: Family Reports of Ms P dated 5 November 2020 and 19 September 2022.
EVIDENCE
In the determination of this case the Court has had regard to all of the documentary evidence referred to above, together with the oral evidence of the parties, the paternal aunt, Dr O and the Family Report writer, Ms P. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed. However, those that are relevant to the Court’s determination will be considered either in this section or whilst addressing the section 60CC factors (see below). Evidence referred to under the section 60CC considerations shall, in the event of any conflict with the evidence referred to in this section, take precedence.
Both parties were cross-examined.
The father gave his oral evidence through Arabic interpreters. His demeanour was one of relative calm and he sought to give responsive answers to questions asked of him. On occasion he provided frank answers against his interests. On balance, he impressed as a man who, over the five years since an incident of family violence perpetrated against the mother on 2 April 2018, had endeavoured to effect personal positive change with a view to spending regular time with the children.

The mother gave oral evidence in the English language. Her demeanour was satisfactory and she also sought to give responsive answers to questions asked of her. It was apparent from the whole of her oral evidence that, particularly by reason of the above incident of 2 April 2018, she remained distrustful of the father and was not prepared to entertain any suggestion that he had positively changed in the five years since the incident.
Trial affidavit of father
The Court does not propose to set out the entire contents of this affidavit.
The father left Country J in 2012 as a refugee. He eventually settled in Country Q and there worked as a customer service operator. In 2014 the parties connected through social media. The parties were married in Country Q in 2014.
X was born in 2015. The father’s visa to Australia was still being processed and he did not arrive in Australia until about mid 2015, and then began living with the mother and X. The father obtained work as a transport worker, and his hours were usually 8 am to 4 pm.
In or around mid-2017, the parties started to have some more difficulties in their relationship. The mother was convinced that the father was cheating on her and this was usually the cause of their arguments.
Under the heading “Background to the relationship” the father asserts:
15.In late 2017 I started to feel anxious and depressed. [Ms Attia] was constantly accusing me of cheating on her. After many months of [Ms Attia] making these accusations against me, I started to believe that she was actually cheating on me, and that she was accusing me of such things as a way to hide that.
16.On 2 April 2018, [Ms Attia] and I separated. At the time of separation there was a domestic violence incident. [Ms Attia] and I were arguing because she had again accused me of cheating on her. I felt very emotional and trapped. I slapped [Ms Attia] to the face with an open hand once. I then picked up a kitchen knife and pointed it at her. I did not touch [Ms Attia] with the knife or put it close to her. [Ms Attia] and I both eventually calmed down and she then went to call her mother. Her mother called the police and they arrived at the house not long after.
17.The children were in their room at the time of the incident.
18.As a result of this incident, I was arrested and charged with assault (armed) and stalk/intimidate and an Apprehended Domestic Violence Order (“ADVO”) was made against me. After my arrest I was taken to jail and I spent 25 days there before I was bailed.
19.On 31 May 2018 the ADVO was made final for a period of 2 years, until 31 May 2020.
20.I pled guilty to the charges and in September 2018 I was given a 7-month sentence, to be served in the community through an Intensive Correction Order.
21.I deeply regret my behaviour on 2 April 2018. I feel very sorry for how I acted, and I understand that it would have been scary for [Ms Attia].
Under the heading “Care of the children” the father asserts:
25.Following our separation I did not spend time with the children until the commencement of these proceedings (in June 2019).
Prior to the parties’ separation, the father, when he was not working as a transport worker, spent time with the children and he developed a close bond with them, particularly with X as he was older at separation date.
Under the heading “Current circumstances” the father asserts:
29.I am currently living with my brother and mother in a 3 bedroom home at [Suburb R].
30.I am a permanent resident of Australia.
31.I am unemployed and in receipt of a Centrelink benefit.
In mid-2018 the father’s GP referred the father to Mr E, clinical psychologist. Mr E prepared two psychological reports in relation to the father, dated 17 September 2018 and 27 August 2021.
The first report of Mr E, psychologist, dated 17 September 2018, states, inter alia, that the father was referred by his GP for management of depression, anxiety and post-traumatic stress disorder (PTSD).
The father told Mr E that he had sought counselling because he had become depressed and anxious in the context of relationship difficulties with the mother, financial struggles, and legal issues. Mr E stated that it became apparent that the father was still suffering from trauma-related symptoms associated with his life in Country J.
Mr E’s initial observations of the father included observations that the father looked distressed - showing obvious discomfort and becoming teary - when recounting some of his memories from Country J, when discussing the incident with his wife, and when talking about how much he misses his wife and children due to the current Apprehended Violence Order that is in place.
Mr E stated that his overall evaluation of the father was conducted using certain questionnaires, procedures and information as set out in his report, including NSW Police facts sheets.
Under the heading “General Clinical Interview for Major Depressive Disorder”, Mr E stated:
The interview for depression revealed that [Mr Ismat] has likely been suffering from depression at various stages in his life since his teenage years. His current mood has also been adversely affected by his current predicament. At present, he is suffering from symptoms such as low self esteem, hopelessness, sadness, loss of pleasure, irritability, poor decision-making, sleep problems, and loneliness.
[Mr Ismat] grew up as a Christian in [Country J] and described the difficulties his family endured during the [Country J] war, and subsequent United Nations (UN) sanctions, the 2003 invasion of [Country J], and with the persecution of Christians in post-war [Country J].
[Mr Ismat] described symptoms that meant he likely suffered from his first bout of depression during his middle teens, not long after the cessation of the War. He seemed to recover after about two years and then suffered another bout of depression when [Country J] was invaded, which coincided with the death of his father in 2003. Once again, he seemed to recover from the depression, but became depressed again in the context of the economic hardship, religious persecution, and he constant threat of violence in post-war [Country J].
[Mr Ismat] immigrated to the [Country Q] in 2012 and his mood improved. He was married in 2015 and moved to Australia the same year. His mood began to deteriorate in late 2017 due to ongoing financial problems and difficulties within his marriage.
At the time of the incident that led to current charges, [Mr Ismat] met the DSM V criteria for a major depressive episode, in the severe category.
(Italics added)
Under the heading “General Clinical Interview for Generalised Anxiety Disorder”, Mr E stated:
The interview for depression revealed that [Mr Ismat] has likely suffered from Generalised Anxiety Disorder since his teenage years. He is suffering from symptoms such as having difficulties relaxing, fear of the worst happening, nervousness, and fear.
He developed anxiety in the context of growing up in an unstable, war-torn environment, where his and his family's safety was never certain. Due to this he learned that he needed to be constantly on guard to assess for possible threats.
At the time of the incident that led to current charges, [Mr Ismat] met the DSM V criteria for Generalised Anxiety Disorder.
(Italics added)
Under the heading “Clinical Interview for Post-Traumatic Stress Disorder”, Mr E stated:
At the time of assessment, [Mr Ismat] was suffering from major depressive disorder and generalised anxiety disorder. While he also met the DSM V criteria for post-traumatic stress disorder. He is suffering from the following symptoms: Intrusive thoughts and memories, making efforts to avoid the distressing thoughts and memories, negative beliefs about himself, and hypervigilance.
[Mr Ismat] has likely met the full criteria for post-traumatic stress disorder since the invasion of [Country J] in 2003. During the invasion, he was living in a very unsafe environment, with troops engaged in battled on the ground, aerial bombardment from Coalition forces and regular bombings by insurgents. After the main fighting ended, the insurgents continued to battle coalition forces and he found [Country J] to be rather lawless, with he and his family regularly threatened because they were Christian.
(Italics added)
Under the heading “Mental Health summary”, Mr E stated:
At the time of the incident, [Mr Ismat] met DSM V criteria for the following:
F32.20 - Major Depressive Disorder, Single Episode, Severe;
F41.10 - Generalised Anxiety Disorder;
F43.10 - Post-Traumatic Stress Disorder.
The father described his early childhood in Country J as good to Mr E. He referred, inter alia, to his loving and supportive family, and enjoying school. He finished his schooling and became a tradesman and worked in the transport industry. He referred, after coalition forces invaded Country J in 2003, that over the next 10 years his family were regularly threatened with violence and death due to their Christian beliefs and which led to heightened state of anxiety and fear for his entire family.
The father described his life in Australia after moving there in 2015. He began working as a transport worker. Mr E stated:
The [work] took place in the evenings and on weekends and his wife, [Ms Attia], began accusing him of cheating on her, which resulted in regular arguments. The arguments began to become stressful for him and, combined with the financial pressures, had a negative impact on his mood.
For the first few months of 2018, [Mr Ismat]'s mood deteriorated further, and he began to become anxious and worried. He then developed the irrational belief that his wife was asking him about his fidelity because she was guilty about something she had done, so began to feel she must be cheating on him. This led to further arguments.
By March 2017, the arguments had become quite regular and [Mr Ismat]'s anxiety and mood problems had worsened considerably. During an argument with [Ms Attia] , on April 2nd 2018, he committed the offences for which he now faces court.
(Italics added)
Mr E referred to the father’s history provided to him relating to the incident of 2 April 2018 stating:
On the evening of the incident, on April 2nd, 2018, there was another heated argument between [Mr Ismat] and his wife, with each accusing the other of infidelity. He described that, for a short time, he became angry and irrational, believing that - just as he had done in [Country J] to battle the bullies who threatened him - the only way to dissuade his wife from further accusations was to scare her.
Upon deciding in this irrational course of action, [Mr Ismat] slapped his wife with an open hand and then picked up a knife to scare her. He stated, "I love my wife and family and would never deliberately hurt her. I just wanted her to stop". He added, "I feel so much sorrow and remorse for what I did. I need help to make sure this never happens again."
It would seem that due to depression, anxiety, and PTSD, [Mr Ismat] reverted back to a tactic that he had successfully used in [Country J] to dissuade bullies from threatening him and his family.
(Italics added)
Mr E stated:
At the time of committing the offences, [Mr Ismat] met the DSM V criteria for:
F32.20 - Major Depressive Disorder, Single Episode, Severe;
F41.10 - Generalised Anxiety Disorder;
F43.10 - Post-Traumatic Stress Disorder.
[Mr Ismat]'s offences were related to a combination of his DSM V listed mental health issues that had developed while he was living in [Country J]. He had somewhat recovered over the past few years, but had relapsed in the context of overwork, relationship problems, and financial difficulties. The mental health led to him engaging in behaviour that is out of context to the environment which it took place.
I therefore believe that the most appropriate way of dealing with this man would be the recommended treatment plan set out in Annex A.
(Italics added)
Under the heading “Prognosis”, Mr E stated:
[Mr Ismat] entered into treatment of his own accord. He seems to be showing good insight into how his past trauma is affected the way he attempted to defuse the argument with his wife. He now realises that he should have simply walked away when he became angry.
Since the incident, [Mr Ismat] has also begun seeing his GP for support. The fact that he seemed to recover quite well from his PTSD until recent stressors bodes well for treatment, as it means that the triggers for his conditions are likely situational rather than predisposed. Therefore, if he continues treatment with the same positive attitude, there is every reason to predict that his mood will continue to improve, his level of anxiety will reduce, and that he will learn manage his stress and hypervigilance better.
When [Mr Ismat]'s mental health has improved, he will be more resilient in the face of future stressors and therefore much less likely to react in the way that he did.
Under the heading “Summary”, Mr E stated:
[Mr Ismat] is a 40-year-old woman (sic man) with a solid work history and a long history of being a loving, caring husband and father. He developed mental health problems during his 35 years living in strife-torn [Country J]. He had nearly overcome these issues, but unfortunately, over the few months leading up to the altercation with his wife, his mental health had relapsed.
On the evening of the incident he was having a heated argument with his wife and retreated to behaviours that helped him survive in [Country J], essentially using intimidation to in the face of the perceived threat his wife posed. The way he reacted seems to be out-of-character for the environment he was in.
[Mr Ismat] is now receiving the care he needs to address his issues and I strongly believe [Mr Ismat] represents no threat to the community for the following reasons:
•He shows no signs of Antisocial Personality Disorder.
•He has no forensic history.
•He has a solid work history.
•His history of being a loving, caring husband and father.
•At the time of his current crime, he was significantly impaired by his mental health.
•He is now in treatment and if he stays in treatment for the recommended time, it is very unlikely, given the insight he currently shows, he will ever repeat his mistakes.
•He seems to be genuinely remorseful for his actions toward his wife.
•He is motivated to continue with counselling and begin making positive changes.
If [Mr Ismat] continues on his current path, he is on track to achieve his goals of improving his mental health, repairing his marriage, and setting a good example for his children.
Mr E’s updating report relating to the father and dated 27 August 2021 stated, inter alia:
Treatment Progress
[Mr Ismat] has remained in treatment since mid-2018. Initially, the aim of the therapy was to improve mood, manage anxiety, and reduce hypervigilance and stress, which was successful.
Treatment then progressed towards using more advanced cognitive tools aimed at helping [Mr Ismat] to question long-held negative belief structures and reduce related thoughts and behaviours, such as the beliefs like “the world is a dangerous place” or “I need to combat anger with anger to be effective”, etc. Once again, therapy was successful.
[Mr Ismat] learned strategies to better manage his mental health issues and by late 2019 he no longer met DSM V criteria for any mental health condition. He was also engaged in regular positive activities, had better sleep habits, was more social, re-established friendships and was more engaged with his social support networks.
Additionally, [Mr Ismat] also found he was much better at managing day to day stress and was no longer becoming angry.
Additional Treatment
In addition to his ongoing individual treatment, [Mr Ismat] completed several group programs including Keeping Kids in Mind, Keeping Children Safe, Triple P Positive Parenting, and DEFUSE Men Managing Emotions.
In completing these programs, [Mr Ismat] has covered topics including preventing childhood neglect, building self-esteem in children, the impact of domestic violence on children's development, managing anger, and supporting his partner.
Prognosis
[Mr Ismat]'s mental health has improved and is no longer an issue. He has now developed strategies that will ensure he is able to manage his emotions much better in the future should he encounter stressful periods in his life. Additionally, he has completed several programs that should ensure he possesses the skills to provide a positive environment for his children's development.
(Italics added)
The father states at paragraph 34 of his affidavit that:
34.I see my local GP, [Dr F] regularly. I am not currently prescribed any medication. I feel really well and have learnt to keep my stress under control. I no longer feel anxious or depressed.
The father states at paragraphs 95-97 of his affidavit that:
95.The children now spend regular time with me. Although the time is not substantive, I have been spending quality time with the children.
96.I enjoy my time with the children. When the children see me, they run to me and hug me, and tell me how much they miss me. …
97.I say that there is no risk to the children in my care, however, I agree there would need to be a graduated increase to daytime, and eventually overnight time with the children to ensure the children are adjusting well to spending more time with me. I hope this gives [Ms Attia] some comfort.
The completion certificate from S Family Centre dated 19 December 2018 relating to the father’s substantial attendance (5 out of 6 sessions) at the program Defuse (Men managing emotions) states, inter alia, that the program is for men wanting to learn how to take responsibility for their behaviour and to engage in healthy and respectful relationships with others.
The A Contact Service report dated 26 May 2021 in relation to the children’s supervised time spent with the father states, inter alia, that the children are very respectful, well-behaved and show the father appropriate affection and display no signs of distress or discomfort. It states that the father provides appropriate supervision of the children, is always conscious of their safety and engages with the children in the child appropriate manner that is child focused. It states that the father is courteous and respectful to staff and other service users and encourages the children to be the same. The father is very good at sharing his time between the children so both children feel included and are at the centre his attention. He is supportive of the children’s relationship with the mother and is encouraging of them returning and being good for the mother. The mother is also encouraging of the children’s relationship with the father and always presents the children and encourages them to have fun and behave for the father. The mother reports that there are no issues with the children before or after contact and that they are happy and settled.
Trial affidavit of the mother
The Court does not propose to set out the entirety of the mother’s trial Affidavit.
In about 2012 the mother completed an allied health certificate and she worked casually in health care for about six months. She then did some work as a tradesperson for about one year.
The mother attended a parenting course being Circle of Security completing it in about June 2018, and she had many visitations with her psychologist.
The mother states that she does not have a good relationship with any of the father’s family, particularly the paternal grandmother.
As at September 2021, the mother was not working and was studying at TAFE NSW.
The mother has significant support from her family who love and care for the children. She also has the support of her caseworker who was always there for her and the children.
The mother states at paragraph 67 of her affidavit that:
67.At the end of 2017, after my miscarriage I suffered from severe anxiety and depression. During that period, I received some counselling in relation to that diagnosis. However, after things got better between [Mr Ismat] and I, I stopped that counselling. My counsellor had also moved on from where he was working and I found the thought of trying to go through my history with someone and have to start again terrifying. While I am not currently receiving any formal counselling, my case worker is well aware of my circumstances and whenever I need to talk to someone about how I am feeling I am able to talk to her.

As to the mother’s current circumstances, she states, inter alia:
91.The children and I live in a property owned by my brother, [Mr T]. The property has five bedrooms. My mother, [Ms U] and sister, [Ms V] also lives in the property with us. I have my own room within the property and the children have a shared room. …
92.I am employed on a casual basis and usually work three to four days each week as a [community worker]. I work school hours. When I am required to work outside of school hours then I arrange for the children to attend before and/or after school care.
93. [X] is in Year 3 and [Y] is in Year 1.
94.I drive the children to school each morning and collect them in the afternoon. The school is approximately a ten-to-fifteen-minute drive from our home.
95.The children participate in swimming lessons which they attend once a week on Saturday. The lessons are usually for a half an hour period.
96.The children and I are otherwise in good health.
Oral evidence of the father
The Court does not propose to set out the entirety of the father’s oral evidence.
Again, the father gave his evidence through Arabic interpreters.
The father was cross-examined by counsel for the mother.
The father confirmed that the parties, on 2 April 2018, were arguing because the mother had again accused the father of cheating on her. The father confirmed that he had felt very emotional and trapped, and which had given him an excuse for slapping the mother.
The father was asked whether the mother accusing him of cheating was the worst thing she could have done to him, to which the father responded, “approximately yes”.
The father agreed that he thought the parties were having a two sided argument. He stated that he thought that each party had done equally bad things to the other in this argument, and he still felt this way. A short time later he confirmed that the mother accusing him of having an affair was as bad as him holding the knife to her.
The father disputed that the children would have seen him slapping the mother.
The father agreed that he had verbally abused the mother during this incident.
The father agreed that when he took the knife and held it to the mother’s neck it was his intention to make the mother feel scared. He denied it was his intention to hurt the mother. He understood that he could have hurt the mother very seriously by holding the knife to her neck. He acknowledged that the mother would have feared being hurt or killed at this time. He repeated that it was only his intention to scare the mother.
The father was then questioned as to his counselling sessions with Mr E and Dr O, and the courses that he had completed. It was then put to the father that none of those courses had changed his mind that the mother’s act in accusing him of having had an affair was just as bad as him holding the knife to her, to which the father stated that the courses had made him change his mind.
The father was shown the NSW Police facts sheet relating to the incident on 2 April 2018 (Exhibit A). The father agreed that he had seen the facts sheet before and when he pleaded guilty to the criminal charges arising out of the incident he had pleaded guilty based on the facts in the fact sheet.
The father stated that he had seen Mr E psychologist for a few sessions after his appeal on severity of sentence in relation to the incident on 2 April 2018. A short time later he stated that he had seen Mr E for all sessions under Mr E’s treatment plan. He had last had contact with Mr E about 1.5 years ago. The father stated that he had seen Mr E not just in relation to his sentence appeal but also for treatment.
The father’s attention was drawn to Mr E’s report dated 17 September 2018 and his reference to the father seeking to dissuade the mother from further accusations by scaring her. It was put to the father that in the future he will try to scare the mother again, to which the father replied that now he thinks differently. Later, when cross-examined by the ICL’s counsel as to how he now thinks differently, the father stated that now he does not act fast, that he keeps away, and that he will try and not act.
The father stated that he had practical difficulties in obtaining the services of a psychologist following court orders of March 2022.
The father stated that he began seeing Dr O to obtain treatment and to obtain a report for court.
The father agreed that he had called the mother a slut in relation to the couch incident in 2014 in Country Q. He stated he understands now that that was a very upsetting event for the mother. He said it was a form of domestic violence and he was not right to call her that. Later, when cross-examined by the ICL’s counsel, he stated that it was the next day after this incident that he thought it not appropriate to have said that to the mother.
The father denied, in 2014, verbally abusing and physically assaulting the mother in relation to certain Facebook messages of the mother.
The father denied pushing the mother in December 2015 as alleged by the mother.
The father denied physically assaulting or threatening the mother in late 2017 as alleged by the mother.
The father stated he had not worked since the end of 2016 and that he was now looking for work. He stated that COVID had affected his business.
The father was cross-examined by the ICL’s counsel.
The father stated that next year he believed he could obtain a residence where the children have their own bedroom.
The father confirmed that he was no longer in a (new) relationship. That relationship ended three months ago. It had lasted about six months. He said living expenses and work were issues in the breakup. He denied having any arguments with this person. He said there had been a difference of opinion in relation to the children potentially living with him in the future.
The father stated he would not smack the children if they were naughty.
The father was questioned as to how he would administer any necessary punishment to the children in the future. The father stated, inter alia, that he would tell the children that they would not play together or they would not get something that they wanted. He stated further that he might tell the children to turn off the TV or he might take their iPads off them. The father stated he was prepared to do another parenting course in relation to disciplining children.
In relation to the incident of 2 April 2018, the father stated that he understood the seriousness of holding a knife to the mother’s neck when he saw the mother had been hurt and being the same day of the incident. He stated that he had felt regret at this time. The father confirmed that he was angry at the time of this incident.
The father stated that from the Defuse course that he had done that he had learnt to be careful, patient and to take time before he takes any decision. In this regard, he stated that over the last couple of years he has kept away from situations that caused him to react and keep away from places where he does not feel safe. He stated that over the last two years he had not been involved in arguments at home with his family or arguments outside the home.
The father accepted that his behaviour towards the mother in his relationship with her was inappropriate at times. He agreed that one of the things that had led to his behaviour being inappropriate was his stress.
The father stated that he believed the mother was a good mother to the children. In this context he stated that the mother looks after the children, she helps them and advises them, she nurtures them and she loves them.
The father stated that he understood why the mother might think that the children were not safe with him and this was by reason of the one incident that had occurred.
Oral evidence of the mother
The Court does not propose to set out the entirety of the mother’s oral evidence.
The mother stated that the children express excitement before and when seeing the father.
The mother stated she doesn’t want to speak with the father nor interact with him based upon her terrible experience with him.
It was put to the mother that the children might enjoy spending short periods of time with the father, to which the mother replied that she didn’t know.
The mother stated that if the father did something to the children that they did not like then they would tell the mother and she would take action.
It was put to the mother that there was no evidence of the father calling her or harassing her (post separation), to which the mother responded that she had blocked the father.
The mother, in the witness box, read to herself the police facts sheet relating to the incident on 2 April 2018, and stated that the facts reflected accurately what she had told the police.
Counsel for the ICL cross-examined the mother.
The mother was asked what she thought would happen in the long-term in relation to the children spending time with the father when the March 2022 consent parenting orders were made. She stated that the children might have a good relationship with the father.
The mother stated that there was nothing in the contact reports which showed that there was a communication occurring between the children and the father and which showed that the children knew the father better.
The mother was asked whether the children would miss the father if they ceased spending time with him, to which the mother responded “not necessarily”.
The mother was asked whether she was concerned with the evidence of the Family Report writer that the children might experience a loss of formation of their identity as sons of the father, to which the mother responded in the negative.
The mother was asked whether the children, in spending no time with the father, might become curious as to who the father might be, to which the mother responded “maybe”.
The mother asked what she was worried about if the children were to spend time with the father, to which the mother responded that she was concerned as to the life of the children and her life around the father. The mother was asked whether she feared the father might hurt or kill the children, to which the mother responded that he could do anything.
The mother was asked whether she had sought any professional counselling for her fears in relation to the father. The mother stated that she had previous support through “Staying or leaving violence” but she ceased that support due to COVID, and she had then moved to her parents’ home for support.
In relation to the issue of possible changeovers in the future, the mother stated that she cannot communicate with the father and she cannot be face-to-face with him. She stated that she did not want the children going with people that they did not know. She agreed that the children know the father’s sister (Ms W) but do not know other members of his family. It was put to the mother that after a few occasions of the children spending time with the father they will meet other members of his family, to which the mother responded that she did not know who the children would be exposed to. It was put to the mother that she assumed that the worst would happen (if members of the father’s family participated in changeovers) to which the mother responded, “maybe”.
Dr O
This psychologist provided psychological treatment for the father and prepared a written report in respect of her engagement with the father dated 12 April 2023. There were six consultations beginning November 2022 and concluding in April 2023. The doctor stated, inter alia:
[Mr Ismat] has attended all scheduled sessions and displayed a high level of motivation to engage.
In the sessions that [Mr Ismat] attended, he spoke about and consolidated the learnings from the parenting, anger management and post separation courses he attended. We have also discussed strategies for how he can maintain his mental health.
He has completed the following courses
Keeping Children Safe (13 weeks) commenced in September 2018 conducted by [Z Family Centre]
Defuse Men Managing Emotions completed in December 2019 – [S Family Centre]
Triple P Certificate completed date 22nd November 2018 – [AB Centre]
Keeping Kinds in Mind - dated March 2020 [AC Centre].
[Mr Ismat] said that he has worked on his anger management in the Defuse men Managing Emotions course. He felt he had been able to discuss issues in respect of his anger with other participants and also to be open to mutually supportive and challenging environment in the group.
[Mr Ismat] acknowledged that he had been violent in his previous relationship and has developed an awareness of the triggers which caused stress in his family life. He identified a number of stressors including financial issues, jealously and lack of personal accountability. He referred to the insight he had had into taking responsibility for his anger and anger management strategies.
We discussed in our sessions the importance of self-care and its connection with emotional and psychological wellbeing. We also canvassed the impact of violence, forms of power and control, equality in intimate relationships and taking responsibility for the part played in the violence cycle. He also discussed appropriate strategies for managing anger and his implementation of those strategies in his current relationships. These included responding rather than reacting, taking more time, being more mindful, respectfulness, listening and observing.
[Mr Ismat] stated that he manages his anger differently and much more maturely in his current relationship.
Under the heading “Any concerns you have in relation to his mental health” the doctor stated:
[Mr Ismat] presented as not having any current mental health pathology. He was administered the DASS and he scored in the normal range for depression, anxiety and stress. He reported that he is currently not medicated except for blood pressure and cholesterol medication. His demeanour was optimistic and his narrative positive.
It is important for [Mr Ismat] to monitor the environmental stressors in his life as there is likely to be a correlation between increased stress and any relapse in his symptoms.
Under the heading “Any recommendations to address the concerns you have in relation to his mental health” the doctor stated:
The extent to which [Mr Ismat] will be able to maintain his current state of mental health will be contingent on a number of factors. They include his self care and attending to lifestyle issues such as sleep, diet, exercise and good work habits. It is important that he continues to remain under the monitoring of his G.P.
[Mr Ismat] also has a number of support networks. They include caring relationships with his partner, his mother and brother with whom he lives and his sister who has been supervising the visits.
[Mr Ismat] also stated that he has also been emotionally buoyed by the progress he has made through the Court to advance his time with his children. He spoke optimistically about his relationships with his children and the quality of their interactions with each other.
[Mr Ismat] has indicated that he plans to secure work in the near future.
[Mr Ismat] may wish to consider ongoing monitoring on a monthly basis with a psychologist.
Under the heading “The impact of his mental health on his parenting capacity” the doctor stated:
There is a correlation between the state of a parent's mental health and their parenting capacity. It is therefore essential that [Mr Ismat] continues to monitor the status of his mental health and takes necessary interventions if there is a relapse in his emotional wellbeing.
Oral evidence of Dr O
The doctor was asked to assume certain facts relating to the incident on 2 April 2018, including the father slapping the mother and holding a knife to her neck and this evidence was given:
Would it – the things I’ve related to you earlier, would that have changed the way you had approached your interviews – initial interviews with [Mr Ismat]?---Well, I may – I may have asked him, perhaps, in – in – with – for more detail of – of what was happening for him at the time. I am aware that – that, you know, at the time, he had diagnosis that were quite co-morbid and complex which would have made him extremely emotionally and psychologically vulnerable.
The doctor stated that she understood the father was seeing her for the purpose of treatment and also understood that the father was coming to see her for the purpose of a mental health assessment.
The doctor was questioned by the counsel for the ICL. This evidence was given:
All right. Now, you concluded, on the basis of the information you had available to you, which included the DASS questionnaire, your observations of [Mr Ismat] and what he self-reported to you, that at the time that you prepared the report, at the time that you had been seeing him, he didn’t have any outward presentations of a mental health issue. Have I understood that correctly?---That’s right.
…
Are the questions that relate to risks that flow from domestic violence in a relationship and risks that flow from mental health – are they connected, are they separate, or can they be either? ---Well, I think they can be both, and, you know, often emotional dysregulation which leads to family violence can be – have very much at its – at its source, stress – excuse me, mental health concerns, post-traumatic stress disorder, depression, anxiety. Often emotional dysregulation is a – is a symptom of that, and if there’s an improvement in mental health, that can also often a correlation with an improvement in emotional regulation, and therefore, the likelihood of aggression, violence.
So if I understand your answer, the absence of mental health issues is an indicator of less risk of emotional dysregulation or anger management issues, of violence – is that correct to say?---Oh, I think there is a very strong correlation. Yes, yes.
All right. But is it also the case that there can be issues of emotional dysregulation, anger management issues, risks of violence, even if there aren’t mental health problems, in the sense of a formally-diagnosable mental health conditions?---Yes, yes.
…
So for example, a person’s insight into their reactions and their behaviours, and the impact that has on others – it’s not necessarily something that relates to a mental health diagnosis. It can be a question of just lack of insight?---Well, yes. Sometimes, also to do with cultural factors, and, well, absolutely, and that’s where courses such as anger management courses can be helpful to people who maybe lack insight and – into the impact of their behaviour.
…
And at the beginning of the questions that were asked by the mother’s counsel of you this afternoon, you were taken to, towards the bottom of that second page of your report, the bit that said:
[Mr Ismat] also stated that he had been emotionally buoyed by the progress he had made, through the court, to having time with his children.
And you were asked about how significant that was and you said that was one factor about his mental health at the time that you had been seeing him and prepared the report. What were the other factors?---Well, the other factors were that he had good lifestyle choices, that he had support of – of his family and, certainly for a time, a partner. You know, he talked about sleep, diet. He also talked about, perhaps, the possibility of finding employment. So I – and that he – he had attended courses as – as requested. So they – they were the – what I saw as protective factors on his part.
…
When [Mr Ismat] told you that he had struggled with symptoms of mental health issues, did he particularise what symptoms he had struggled with?---Well, he talked about – he talked about depression. He talked about feeling sad, angry. He talked about the feel of behavioural psycho-physical symptoms that – that would have been – I would have considered were anxiety reactions. He didn’t talk a lot about what I would have thought might have been post-traumatic stress disorder symptoms, but the three are often very closely interacted – interacting. He talked a lot about depression, really, in his – in his reports to me.
Did he particularise what symptoms he experienced relating to depression?---Sadness, anger, flatness of mood were what were – I recall him talking about.

The Court accepts the evidence of Dr O.
The Family Report
The Family Report writer was Ms P, Family Consultant, and her two reports are dated 5 November 2020 and 19 September 2022 (Exhibit B).
The Court does not propose to set out the entirety of the contents of the Family Reports.
The first Family Report stated that the Family Report writer interviewed the parties in September 2020 and the eldest child in early October 2020.
On interview, Ms Attia stated that she has not yet consulted her lawyer regarding arrangements for the children with Mr Ismat. She said that she would like to examine any reports from the contact centre before making a proposal, however, would prefer that time spent with Mr Ismat remain supervised.
Ms Attia alleged that Mr Ismat physically assaulted her on a number of occasions.
Mr Ismat acknowledged one occasion when he held a knife to Ms Attia's neck. He denied any further instances of physical violence.
There were mutual allegations of verbal violence.
The father told the Family Report writer that he had hit the mother on the cheek in relation to an incident on 2 April 2018. He acknowledged that he had placed a knife on her neck and expressed remorse over this.
The mother told the Family Report writer that after the father slapped her she put the children in their rooms and tried to call the maternal grandmother. She said that the father threw her phone and then put a knife onto her neck.
Ms Attia acknowledged that, in October 2017, she asked Mr Ismat to look after the children so that she could attend a course. She said that, after Mr Ismat refused, she took the children to the maternal grandmother's home and then returned to the marital home. Ms Attia said that she cut their couches with a knife to demonstrate her anger. Ms Attia said that she took her belongings and those of the children and left for two days.
Mr Ismat claimed that, apart from the incident connected to the ADVO, he has not behaved in a way which would have made Ms Attia feel unsafe. He claimed that there was mutual slapping on a few occasions and that, on one occasion, Ms Attia became really upset and broke some objects around the house.
The mother claimed that there was an occasion when the parties had an argument in the car and the father grabbed her around the neck and turned the steering well. She said on another occasion the father had slapped her after a dispute regarding appropriate medication for the eldest child.
The mother said the children speak Arabic or English.
The Family Report writer noted a report from psychologist Mr E who had ascribed violent incidents to the father’s mental health difficulties.
Ms Attia said that she is being assisted by the 'Staying home, Leaving violence' program and that a caseworker calls regularly to assist. She said that they are also helping her with suitable courses, and to assist her in understanding her situation.
Mr Ismat stated that he has completed various parenting courses as well as an anger management course, and that he believes these have contributed to him feeling prepared for X and Y to stay overnight with him. He said that he has learnt to avoid becoming upset too easily, and takes time to calm down before he makes any decision.
Ms Attia reiterated that she would like to read the Contact Centre reports before sending the children to unsupervised contact with Mr Ismat. She said that, even if the contact centre reports are positive, she would still prefer that time spent with Mr Ismat be supervised, because she doubts Mr Ismat's capacity to control his anger with the children.
The eldest child told the Family Report writer that he enjoys playing with the father and that he would like to see the father more. The youngest child was not interviewed due to his age and stage of development.
The children were observed with both parents. The children, when the father was brought into the observation room, both ran towards him and hugged him.
Under the heading “Evaluation”, the Family Report writer stated, inter alia, that the relationship between the parents appears strained, particularly on the part of the mother. She stated that if violence, as attested to by the mother, occurred in the parties’ relationship then this may be a reason for her reluctance to engage with the father. The Family Report writer stated that this means that communication between the parents is limited. She stated that without an established immediate method of communication, there are likely to be real difficulties in organising the children’s time with each parent.
The Family Report writer stated that while Mr Ismat stated that he has completed an anger management course, it does not appear that this was a men's behaviour change program, and such a program would be indicated in this case if Ms Attia's allegations have veracity.
The Family Report writer stated that the Psychologist, Mr E expressed his belief that Mr Ismat would no longer present a threat to the community or his marriage if he adhered to the treatment plan he outlined. As far as can be determined, Mr Ismat appears to have adhered to the treatment plan.
The Family Report writer stated that it would not be recommended that supervision continue for the life of the relationship. She stated:
76.Apart from practical difficulties, supervision may tend to suggest to a child that the supervised parent is untrustworthy, and is only safe in the context of supervision, thus engendering a relationship with that parent which is insecure and confusing. If the Court deems that [Mr Ismat] does not present an undue risk to the children through perpetration of family violence, and reports from the Contact Centre are positive, then it would be recommended that supervised contact cease after a period of six months, leading to unsupervised daytime contact. In this instance, overnight contact may be considered after a further six months of daytime contact.
The Family Report writer’s final recommendation stated:
81.It is recommended that, if the Court does not find that [Mr Ismat] presents an undue risk to the children, he spend supervised time with them each fortnight for a further three months. If reports from the Contact Centre are positive, it is recommended that he spend three hours each weekend unsupervised for three months before moving to six hours each weekend for three months. If this proceeds smoothly then overnight time may be considered.
The Family Report dated 19 September 2022 stated that the parties and children were interviewed and observed on 15 August 2022.
The Family Report writer reviewed documents produced under subpoena from, inter alia, NSW Police and A Contact Service.
The Family Report writer stated that Mr Ismat acknowledged that family violence existed in their relationship, and said that there was yelling and conflict over decisions which had to be made. He said that Ms Attia would yell and he would yell back but that he never harmed her, “even though there was some physical touch.” Mr Ismat said that he has told his new partner about his relationship with Ms Attia, and acknowledged that he “made mistakes” which had constituted a “tough lesson.” He reported that he has completed an anger management programme in which he learnt “to be more patient, be calm, take time in decision making and be more in control of yourself.” When Mr Ismat was asked how he would do this, he said, “not to rush my decisions.”
The Family Report writer interviewed X who stated that he really enjoyed seeing the father at the contact Centre because they played lots of games. He said he would like to see a lot more of the father so that he could play different things with him and talk to him.
The youngest child Y was interviewed who told the Family Report writer that seeing the father is good. He stated that he would like to see more of the father because he likes the father and the father likes him.
The children had a positive observation session with the father. The children appeared confident in their interactions with the father and seemed particularly pleased to see him.
Under the heading “Evaluation” the Family Report writer stated, inter alia, that the father has not had to correct the children’s behaviour to any great extent, nor manage them when they are tired or irritable.
The Family Report writer stated:
28.… While (the father) acknowledged that there had been violence in his relationship with [Ms Attia], he tended to mutualise this to “yelling” at each other with “some physical touch.” He did not appear to recognise the seriousness of him using a weapon on [Ms Attia], nor acknowledge any further physical violence towards her, as described by [Ms Attia]. His narrative surrounding his counselling sessions tended to be superficial and, although he recognised the need to be more patient, his remedy for this appeared to be confined to “not rushing my decisions.” Whether [Mr Ismat] has indeed learnt some “hard lessons” is not clear. On the other hand, his desire to spend time with the children and to engage with them on a more meaningful level appears sincere, and the children were certainly keen to see him.
The Family Report writer stated that it was unclear how the father would present in a less structured and supervised situation.
The Family Report writer stated that:
33.… If, in the immediate future, [Mr Ismat] spends time with the children either unsupervised or supervised by the maternal aunt, and this time proceeds smoothly, such that the children are happy to go with him and do not appear unduly disturbed afterwards, then limited day time contact could be considered. This could take the form of four hours in the afternoon on a weekend day, with consideration of extending this time only after a considerable time has elapsed. It would be further recommended that changeovers occur without direct contact between the parents, either through family members or at a Contact Centre.
The Family Report writer gave oral evidence.
The Family Report writer was questioned by the ICL’s counsel. Inter alia, the Family Report writer stated:
Look, it – I’ve certainly recommended no time at all, in cases where fathers have been clearly involved in criminal activities, things like that, where I really think it would be better for the children not to see the parents. I don’t think – I don’t think that is the case here.
In relation to the father completing parenting courses, this evidence was given:
And would there be a particular course, or some courses, in relation to parenting skills that you would recommend that he would do?---Well, the – the pressure points in parenting usually come in managing misbehaviour, and the ones I would usually recommend for this age would either by the Triple P or the 1-2-3 Magic, because they both help parents to understand and deal with more difficult behaviour. I think what has been shown, and certainly what I observed, is that [Mr Ismat] can play with the children. There – there doesn’t seem to be a – a problem there. But where he’s untested, of course, is – is all the – around about bed time when children are tired, things like that. That’s when children are challenging.
And the two courses that you’ve mentioned, the Triple P parenting and the 1-2-3 Magic courses, are they very similar? Do they cover the same ground or ?---There – there’s slightly different emphasis, yes.
They’re slightly different?---The – the Triple P is very much behavioural. The 1-2-3 Magic does try to bring in the idea of emotion coaching, which is – is a useful technique and try to get in before the difficult behaviour starts. So they’re both good in their way.
[Mr Ismat] had, again, almost five years ago completed the Triple P parenting course? Right. Right. Right.
So perhaps the start now would be the 1-2-3 Magic course?---2 Magic, yes, is a – is a good one.
As to the Family Report writer’s recommendation in paragraph 39 of her second updating report this evidence was given:
But is your progression ultimately – or recommendation about progression ultimately still only at four hours each alternate weekend, which is what seems to be suggested ? Right. Yes.
--- at paragraph 39?---Yes. It’s very difficult always with – with hours. I certainly felt that remaining at the four hours unsupervised was probably what [Ms Attia] could tolerate. But as the children grow – grow older they would possibly start asking for more time, and that might be something that [Ms Attia] could consider. I’m not necessarily saying that it should stick at four hours forever, if that’s the question.
The Family Report writer gave this evidence in relation to whether there were increased risks to the children if they are spending longer periods of time with the father:
And you may or may not be able to comment on this. But are there increased risks by virtue of longer periods of time, children spending – or, these particular children spending longer periods of time with their father than shorter periods of time? Because one view might be, if the father is a risk to them spending overnight time, then he’s a risk spending four hours as well?---Well, the sorts of things I mentioned previously, that children often become tired at night, fractious, more difficult to handle, and if someone doesn’t have good control of – good emotional self-regulation, then these are the times when often things go awry. So they – that – yes, so I – I firmly believe that there is a much greater risk to – when overnight time occurs. Or lengthy periods, because someone might be able to manage themselves well for a few hours. They can’t necessarily manage themselves well for 48 hours.
The Family Report writer was questioned as to her recommendation in paragraph 81 of her first report relating to overnight time being considered and this evidence was given:
Okay?---I think, at the time of the update, I was under the distinct impression that this had been down to [Mr Ismat], that the – that the time had not progressed. And as I say, after reading the affidavit, perhaps that is not the case. I don’t know. But it would – if he had managed to adhere to all of the orders and time had gone through regularly, then I would probably recommend that ultimately some overnight time be considered, if all – all went well. Yes.
HIS HONOUR:   And can I just ask on this topic, the change of your view from possible overnight time in your first report to four hours, unsupervised, in your second report. The mother’s anxiety was that not a factor or     ?   It – yes.
it was – is that also one of the factors that you took into     ?---You’re – you’re right. That was a factor. And the fact that the mother was still very anxious, so that that anxiety didn’t seem to have lessened in the ensuring period was also a factor.
MR BUTTERS:   So in respect of the mother’s anxiety, if her evidence is she hasn’t at least, in the more recent ..... last two years, sought any therapy assistance for that anxiety, is there anything you could recommend going forward, or a service the mother could engage with, to assist with that anxiety in managing the children spending more relation time with the father?   ---Sure. I usually recommend the Keeping Contact service through [Z Family Centre] in cases where people may struggle to follow orders.
The Family Report writer stated that she had had the benefit of the short report of Dr O relating to the father’s mental health. She stated that she thought clearly that the father seems to be in a better state as regards his mental health.
The Family Report writer gave this evidence in relation to the father’s more recent relationship which had recently ended and the issue of exposure of the children to violence:
And in terms of his potential violence or violent nature the father presents with, would it lower your assessment of risk if there’s no evidence of the father being violent to anyone, it appears, from the date of separation until today’s date?---Yes, it may. It largely would – there tends to be a pattern of violence only in intimate personal relationships, so if there have been subsequent intimate personal relationship which were free of violence, that – but I – I don’t know whether we can know that.
And if there was or appears to be some limited evidence of one of the father’s subsequent relationships that there was no evidence that that relationship was characterised by violence, would that reduce that assessment of risk?---It may. It may.
In terms of “may”, what would you need to see? Is there any factors you would see that would actually reduce that risk? I know it’s difficult question, sorry? Yes.---Well, clearly, the capacity to conduct further intimate relationships without violence would – would lend some reassurance that the children, for example, wouldn’t be exposed to – to further violence.
The Family Report writer gave this evidence in relation to the risk of the father undermining the mother’s primary parenting role:
And, in terms of the concern about the father undermining the mother’s parenting – and accept from me the father said under oath that – or gave evidence which we summarise as he accepts and understands the importance of the mother’s role, coupled with the fact he doesn’t seek orders either for equal share of parental authority or to displace her as primary carer; does that give you some satisfaction that he’s less likely to undermine that role?---Yes.
And, in terms of that satisfaction of not undermining the role, would that – if the court finds that there’s no unacceptable risk at present – that the time can expand to overnight?---Yes.
The Family Report writer gave this evidence in relation to the father, on 2 April 2018, brandishing a knife at the mother and intentionally wanting to scare her at that time in the context of the father’s pre-existing PTSD:
And if you’re add in to the mix – if I ask you to assume that the father, having been accused of cheating on the mother, had brandished the knife at her and intentionally, at that time, wanted to scare the mother; does that make any difference or does that assist?---I guess we all do things when we’re very aroused – and I – I understand that there is a diagnosis of PTSD, which means that, really – basically means that someone’s arousal levels are already high and easily become higher – that we all do things when we’re aroused that we might regret. However, this is of a level of seriousness that’s – that’s concerning. Whether it was – whether it was to, as you say – brandishing a knife is – is always going to be seriously concerning, yes.
The Family Report writer gave this evidence in relation to possible overnight time between the children the father in the future:
Now, in paragraph 76 of your first report, in the last sentence you discuss overnight time possibly – you say it may be considered after a further six months of daytime contact. Are you able to give an indication of what factors might lead to that being possible or not possible? ---Well, the sorts of things that I would usually be looking for are very positive supervision reports, that the children are happy both to go, and positively even more importantly, when they come home that their behaviour isn’t unduly disturbed, their sleeping, their eating, whatever, is not unduly disturbed. They’re the sorts of things that I would look at before recommending increasing time or – or perhaps moving to overnight time.
The Court accepts the evidence of the Family Report writer subject to any contrary view of the Court, whether express or implied, as indicated below under section 60CC of the Act.
RELEVANT LEGAL PRINCIPLES
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). Section 60CC (2A) provides that in applying the primary considerations (the meaningful relationship and need to protect primary considerations) the Court should give greater weight to the need to protect primary consideration (and the Court should state, that in this parenting case, it does so).
When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act.
Under section (4) of section 61DA of the Act, the above presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The best interests of the child
Section 60CC considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The children have a meaningful relationship with the mother and will benefit from a continuance of that relationship. The children’s primary attachment is to the mother; the mother has been their primary carer since birth to date.
Prior to the parties’ separation, the children probably had a meaningful relationship with the father, in particular the eldest child. It is likely that those meaningful relationships significantly dissipated post separation by reason of the father not spending time with the children for considerable periods. Presently, the children’s relationship with the father is positive through having spent supervised time with him, however their relationship with him is probably not yet a significant meaningful relationship in that they have not yet been able to develop the relationship through spending significant unsupervised time with him.
The children should benefit from having a meaningful relationship with the father if it is safe for them to do so. The father loves the children, and has spent lengthy periods of supervised time with the children to the present time. The children have enjoyed such time spent with the father.
Should the Court order that the children spend no time with the father, as proposed by the mother, the children will be deprived of developing and enhancing their present positive relationship with the father during their childhood years. And there will be other disadvantages potentially experienced by the children if spending no time with the father as discussed by the family report writer.
Should the court make the ICL’s proposed Orders there is a significant prospect that the children’s present positive relationship with the father can be developed and enhanced. And should the Court make such proposed Orders, the children should not be exposed to an unacceptable risk of family violence, and the mother’s parenting capacity should not be adversely compromised, as discussed below under the need to protect primary consideration.
The Court gives significant weight to this meaningful relationship primary consideration.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court finds that the father slapped the mother during an argument on 2 April 2018 however the children had just earlier been placed in their bedroom before this occurred. The father then pointed a kitchen knife to the mother’s neck after the mother had verbally accused the father of having an affair. This knife had touched the mother’s neck.
The Court finds that the father verbally abused the mother on occasion on and prior to 2 April 2018. The Court finds that the parties had verbal arguments prior to 2 April 2018.
On the balance of probabilities, the Court is not persuaded that the father physically assaulted the mother prior to 2 April 2018 as alleged by the mother, subject to the following. The Court finds that prior to 2 April 2018, during the parties’ relationship, there was occasional disputation between the parties and which involved, on occasion, mutual slapping (see paragraph 37 of the Family Report dated 5 November 2020). The Court observes, and finds, that the mother had, in 2017, after the father had refused to care for the children, cut their couches with a knife to demonstrate her anger, and on another occasion had broken some objects around the house when she became really upset (see paragraphs 35 and 37 of the Family Report dated 5 November 2020).
The Court finds that the father was suffering adverse mental health on 2 April 2008 which significantly contributed to his acts of family violence towards the mother at this time, and in this regard the Court accepts the evidence of Mr E, clinical psychologist (see his two reports discussed previously in these Reasons). No objection was taken to Mr E’s reports (annexed to the father’s affidavit) and he was not cross-examined. The father was not cross-examined as to significant parts of his history provided to Mr E.
The court finds that the father’s mental health is presently satisfactory, and in this regard, and again, the Court accepts the above reports of Mr E, and the Court accepts the evidence of Dr O.
On the balance of probabilities, the Court does not accept that during the parties’ relationship the father perpetrated coercive and controlling family violence against the mother. In this regard, the Court refers to the evidence of Mr E, psychologist, to the effect that the father, by 2 April 2018, by reason of his previous life experiences (particularly in Country J) and personality had, inter alia, developed inappropriate strategies to deal with conflict including threats to his person and integrity.
The Court finds that the father, since the events of 2 April 2018, has demonstrated some helpful insight into the gravity of his family violence towards the mother including in relation to the adverse emotional effect upon the mother. Such insight has been demonstrated by his pleas of guilty to the criminal charges in relation to the events of 2 April 2018 and the service of his related criminal sentences, his remorsefulness for his family violence, his engagement in psychological treatment for his mental health (and see the reference by Mr E in his report dated 27 August 2021 to the father’s psychological treatment since mid-2018), and his completion of parenting and anger management related courses. Having stated this, and accepting that the father’s insight has not been as fulsome as it could have been (including as at trial), it will be helpful for the father to attend the 1-2-3 Magic parenting course prior to spending overnight time with the children.
On balance, considering the whole of the father’s oral evidence in relation to the 2 April 2018 events and the matters set out below relating to risk of family violence, the Court accepts his evidence that in future he will try not to scare the mother again, and that he now thinks differently in relation to how he responds to confrontation and deals with stressful situations. In this context, the Court observes that Mr E, psychologist had noted under “Prognosis”, in his first report, that the father now realises that he should have simply walked away when he became angry, and the Court refers to Dr O’s report relating to, inter alia, the father’s development of awareness of the triggers which cause stress in his family life, and taking responsibility for his anger and anger management strategies.
The Court is of the view that the children will not be exposed to an unacceptable risk of family violence if spending time with the father pursuant to the ICL’s proposed Minute of Order for at least the following reasons:
(a)the father’s demonstration of some insight into his past family violence, as discussed above;
(b)the positive supervised time spent between the children and the father, and the children’s seamless transition back into the mother’s primary care from such time;
(c)there is no significant evidence indicating that the father has acted adversely towards the mother (or others, including his more recent partner) post separation to date, a period of 5 years, such as through physical violence, harassment or stalking, and no party submitted to the contrary. The Court also accepts the father’s evidence in this context;
(d)the ICL’s proposed Minute of Order provide for a prolonged period of day-time time only; the commencement of overnight time only starts in January 2025 and provided the father has completed the 1-2-3 Magic parenting course; this overnight time is for one night only each alternate weekend; it is only from the beginning of Term 1 2026 that school holiday block time commences and which is limited to one week during short school holidays and two weeks during December school holidays; and changeovers will not involve face to face meetings between the parties;
(e)the ICL’s proposed Minute of Order provide for the mother being required to complete a Keeping in Contact program within 12 months of the Court’s Orders;
(f)the Court proposes to order a restraint upon either party administering physical or corporal punishment on either of the children or permitting any third person to do so, and the Court is of the view that there is a significant prospect that the parties will obey such a restraint order;
(g)the father adopted the ICL’s proposed Minute of Order as his own, noting that his original sought final parenting Orders in his Case Outline was somewhat more generous in respect to time between the children and the father;
(h)the father’s demeanour when giving oral evidence and being cross-examined on contentious issues was one of relative calm - he displayed no anger or aggression;
(i)the mother should be able to cope emotionally with the children spending time with the father pursuant to the ICL’s proposed Minute of Order (and see below);
(j)the father sees his local GP regularly for support;
(k)the positive opinions and comments of Mr E and Dr O (psychologists) in relation to the father’s mental health prognosis and future ability to manage stressors appropriately.
In the view of the court, the mother should be able to cope emotionally with the children spending time with the father pursuant to the ICL’s proposed Minute of Order and not experience any significant loss of parenting capacity thereby. At the outset, the Court accepts that the father’s use of a knife against her on 2 April 2018 would have been a terrible experience for the mother to have endured, and it is understandable that she remains distrustful and fearful of the father by reason of this incident.
The mother has, to her credit, consistently facilitated, in a positive fashion, the children spending supervised time with the father post separation to date (and noting that such supervised time included supervision by a paternal aunt early this year), with the children experiencing positive visitations with the father, and whilst acknowledging that there had been periods during that time when no supervised time could be held due to such reasons as COVID.
The mother has previously engaged the assistance of the 'Staying home, Leaving violence' program and a caseworker has called the mother regularly to assist. The mother has significant extended family support and she lives with members of her extended family.
There is no contemporary evidence from the mother of having experienced significant anxiety which required health professional attention in relation to the children prospectively spending unsupervised time with the father. The mother produces no health professional evidence to indicate that she will experience significant anxiety such that her parenting capacity will be adversely compromised should the children begin to spend unsupervised time with the father, and there is no such evidence relating to any significant anxiety diagnoses in the mother.
Again, the ICL’s proposed Minute of Order provides for a quite prolonged graduation of time between the children and the father, they require the father to complete the 1-2-3 Magic parenting course before overnight time begins, the ultimate overnight time is relatively modest being only one night each alternate weekend, and with changeovers not being face to face, all of which (particularly if such time occurs without significant incident) will probably assist the mother in managing her emotions (and thereby retaining her parenting capacity for the children) relating to the children spending time with the father.
The Court is not persuaded, on the balance of probabilities, that the father has perpetrated physical family violence against the children.
Should the children spend time with the father pursuant to the ICL’s proposed Minute of Order, there is a significant prospect that the parties will comply with the ICL’s proposed restraint relating to neither party denigrating the other in the presence of the children.
The evidence of the Family Report writer, on balance, is consistent with the above views of the Court.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The children are now aged 6 and 8 years. The Court attaches little weight to the views of the eldest child expressed to the Family Report writer, by reason of his age. No significant view has been expressed by the youngest child and in any event it would carry no weight by reason of his age.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussion above under the meaningful relationship primary consideration. The children enjoy positive relationships with members of the maternal extended family. The children are familiar with the paternal aunt Ms W who has assisted with supervision of the children’s time with the father early this year. (The Court notes her oral evidence that she is prospectively unable to assist with supervision. The Court accepts her Affidavit evidence in relation to the children spending positive supervised time with the father.)
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The mother has been making major long-term decisions for the children. The father has sought to take opportunities to spend time with the children; the Court does not accept that the father intentionally delayed spending time with the children post separation and does not accept that he intentionally delayed obtaining psychological assistance.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The mother has maintained the children. Post separation the father has not paid child support whilst observing the father has been unemployed for a significant period.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The children should be able to adequately cope in being separated from the mother when spending time with the father pursuant to the ICL’s proposed Orders.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Not applicable.
(f) The capacity of: (i) each of the child’s parents; and (ii) 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
The mother has such capacities.
The father probably has such capacities and in this regard the Court refers to its discussions above under the need to protect primary consideration. The court observes and accepts the father’s evidence that he respects the mother’s role as the children’s primary carer and that he believes she is a good mother to the children.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
The Court refers to its discussions above under the primary considerations and additional considerations under section 60CC(3) above.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussions above, in particular under the need to protect primary consideration and additional considerations under section 60CC(3) above.
(j) Any family violence involving the child or a member of the child's family
The Court refers to its discussions above under the need to protect primary consideration.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter
The Court refers to its above recitation of the evidence relating to ADVOs against the father for the protection of the mother and children.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The Court is of the view that the ICL’s proposed Minute of Order, as discussed above under the meaningful relationship primary consideration, would be least likely to lead to the institution of further proceedings in relation to the children, as compared to the mother’s proposed orders seeking no time between the children and the father. In this context, the Court refers to its discussions above under the primary considerations.
m) Any other fact or circumstance that the Court thinks is relevant
Not applicable.
Parental Responsibility
It will be in the best interests of the children that the mother have sole parental responsibility for the children. An Order to this effect has been agreed to by the father and ICL.
The mother had sought orders for international travel with the children and related passport orders; these proposed orders will be in the best interests of the children noting that the mother will have sole parental responsibility and that there is no significant evidence that should the mother travel overseas with the children that she will not return to Australia with the children in a timely manner.
SUMMARY
Evaluating the above discussed relevant considerations under section 60CC of the Act, it will be in the best interests of the Child to make the following final parenting Orders:
1.That the children X (male, born in 2015) and Y (male, born in 2017) (“the children”) live with the mother.
2.That the mother have sole parental responsibility for the care, welfare and development of the children.
3.That the mother:
(a)Notify the father of any proposed decision relating to the long-term care and welfare of the children and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made;
(b)Take into consideration any views expressed by the father, in writing, about the proposed decision; and
(c)Notify the father in writing of her final decision about the issue.
4.That the children spend time with and communicate with the father as follows:
(a)Stage 1: For 3 hours each alternate Sunday unsupervised for 8 months, from 10:00 am to 1:00 pm.
(b)Stage 2: Commencing January 2024, each alternate Sunday from 10:00 am to 4:00 pm for 12 months.
(c)Stage 3: Commencing January 2025:
(i)Each alternate weekend from Saturday 10:00 am until Sunday 4:00 pm;
(d)Stage 4: Commencing at the beginning of Term 1 in 2026:
(i)During school terms, each alternate weekend from Saturday 10:00 am until Sunday 4:00 pm; and
(ii)During the April, July and September school holidays for at least 1 week; and during the December school holidays, for at least 2 weeks, with such time to agreed between the parties in writing at least 7 days prior to the commencement of the school holidays, and failing agreement, the first half with the father in odd numbered years and the second half in even numbered years.
A.For the purpose of these Orders, the school holidays are deemed to commence at 9:00 am on the first day after the public-school term ceases and changeovers shall occur at 6:00 pm at the commencement of each parties’ time with the children.
(e)Otherwise as agreed between the parties in writing.
(f)On Special Occasions, as follows:
(i)On the children’s birthdays, on the Sunday immediately following the children’s birthday from 10:00 am to 2:00 pm.
(ii)On Easter, commencing 2024, and each even numbered year thereafter, from 10:00 am to 2:00 pm on Easter Day; and commencing 2025, and each odd numbered year thereafter, from 2:00 pm to 6:00 pm on Easter Day.
(iii)On Boxing Day in 2023 and 2025 and from 10:00 am to 2:00 pm and on Christmas Day in 2024 from 10:00 am to 2:00 pm.
5.Each parent is to communicate with the children by telephone or video call, during periods where the children are not otherwise in that parent’s care as agreed between the parties, or failing agreement, each Thursday and Saturday between 6.00 pm and 6.30 pm.
(a)For the purpose of this Order, the parent with whom the children are spending time with is to ensure that the children are available to take the call and the mobile shall be charged, switched on and in an area with reception.
6.That in the event of the children suffering a medical emergency or illness requiring medical attention, the parent with whom the children is spending time, must as soon as practicable:
(a)Notify the other parent;
(b)Provide the other parent with the full details of the practitioner or medical facility upon which the children attend as soon as practicable; and
(c)Advise the medical practitioner or medical facility that the other parent has authority to access the children’s medical records and other information upon their request.
7.That each party shall authorise the children’s treating medical practitioner/s to supply information concerning the children to each parent.
8.That these Orders provide authority for each parent to make arrangements at the children’s day care centre, school and after school care to obtain the following information and documents at their own cost:
(a)A copy of all school reports and school photo order forms for the children.
(b)Notification for school activities that parents are invited to attend.
(c)Notification of parent/teacher nights.
9.Each parent will be entitled to attend all events involving the children which are routinely attended by parents, including:
(a)Sporting activities, events and functions;
(b)Extra-curricular activities, events and functions that allow for parental attendance;
(c)School events, activities and functions.
however, the father shall not approach the mother at any such event.
10.That each parent be restrained by injunction from:
(a)Discussing these proceedings, or showing any document related to these proceedings, to the children;
(b)Denigrating the other party, or members of the other party’s family to the children or in the hearing or presence of the children; and
(c)Administering any physical or corporal punishment upon either of the children or allowing any third person to do so.
11.That for the purposes of facilitating the children’s spending time with the father, unless the mother and the father otherwise agree in writing:
(a)changeover shall occur at the front entrance of Shopping Centre G adjacent to the Store H at the commencement and conclusion of time;
(b)the father shall not be present at changeover unless the mother has previously indicated that she will not be attending changeover herself;
(c)the mother and the father notify each other in writing of the person who will be attending at changeover on their respective behalf (unless the person has previously attended changeover on behalf of a parent); and
(d)the mother and father shall ensure that any person attending changeover on their behalf is known to the children.
12.That the children’s time with the father shall not progress to stage 3 (i.e. overnight time) unless the father has completed the 1-2-3 Magic parenting course and provided a certificate of completion of such course to the mother.
13.That the mother take all steps to engage in and complete a Keeping in Contact program as soon as practicable and, in any case, within 12 months of the date of these Orders.
14.That the mother shall have sole parental responsibility to apply for a passport for the children.
15.That the children are permitted to travel internationally, without the need for the consent of the father to be provided.
16.That the mother shall be the only person with parental responsibility for the children for the purposes of apply for, and being issued with, an Australian passport for the children.

I certify that the preceding two hundred and three (203) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.
Associate:
Dated: 9 May 2023

File number(s):	PAC 1642 of 2019
Judgment of:	JUDGE NEWBRUN
Date of judgment:	9 May 2023
Catchwords:	FAMILY LAW – CHILDREN – Best interests of child – Orders made.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA
Division:	Division 2 Family Law
Number of paragraphs:	203
Date of hearing:	17–19 April 2023
Place:	Parramatta
Counsel for the Applicant:	Mr Butters
Solicitor for the Applicant:	Legal Aid NSW Suburb D Family Law
Counsel for the Respondent:	Mr Keserovic
Solicitor for the Respondent:	Bell Lawyers
Counsel for the Independent Children's Lawyer:	Mr Ladopoulos
Solicitor for the Independent Children's Lawyer:	Sarah Bevan Family Lawyers

PAC 1642 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR ISMAT Applicant
AND:	MS ATTIA Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE NEWBRUN
DATE OF ORDER:	9 MAY 2023