JAMSHIDI & SOROUSH
[2017] FamCA 880
•4 August 2017
FAMILY COURT OF AUSTRALIA
| JAMSHIDI & SOROUSH | [2017] FamCA 880 |
| FAMILY LAW – CHILDREN – Time between the father and the child – Where the father has not spent time with the child since 2013 – Where the father seeks orders to spend time with the child each weekend – Where the mother seeks an order for no time between the father and the child – Whether the father presents an unacceptable risk of harm to the child – Where the court is not satisfied that the child spending time with the father could occur in a safe environment – Where supervision of the father’s time with the child would not afford sufficient protection of the child FAMILY LAW – PROPERTY – Where it is just and equitable to make an order – Where the contributions by the parties were equal – Where there was an adjustment pursuant to section 75 in the mother’s favour – Where the father be responsible for the payment of debts – Orders made for the distribution of cash and superannuation |
| Family Law Act 1975 (Cth) ss. 4, 4AB, 60B, 60CA, 60CC, 60CG, 61C, 61DA, 65DAA, 65DAC, 75, 79 Family Law Regulations 1984 (Cth) Family Law (Superannuation) Regulations 2001 (Cth) Superannuation Industry (Supervision) Regulations 1994 (Cth) |
| Baghti & Baghti [2015] FamCAFC 71 Stanfordv Stanford (2012) 247 CLR 108 |
| APPLICANT: | Mr Jamshidi |
| RESPONDENT: | Ms Soroush |
| INDEPENDENT CHILDREN’S LAWYER: | Couper Geysen Family & Animal Law |
| FILE NUMBER: |
BRC 11207 of 2013
| DATE DELIVERED: | 4 August 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 12 & 13 April 2016 18 May 2016, 29 & 30 June 2017 |
REPRESENTATION
| FOR THE APPLICANT: | Self-represented |
| COUNSEL FOR THE RESPONDENT: | Ms Walker-Munro on 12& 13 April and 18 May 2016 and Ms Cullen on 29 & 30 June 2017 |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid Queensland |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms. K. Carmody |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Couper Geysen Family & Animal Law |
Order
Parenting
Ms Soroush (“the mother”) shall have sole parental responsibility for the child B born … 2012 (“the child”).
The child shall live with the mother.
Mr Jamshidi (“the father”) shall not spend any time with the child.
At the conclusion of each school term the mother shall email the father a copy of the child’s school report and a recent photograph.
The parties shall exchange email addresses by 5pm on 7 August 2017 and they shall ensure they keep the other informed of any change to the email address.
Save with the ‘authenticated consent’ of both parties (as that term is defined in Regulation 11 of the Family Law Regulations 1984 (Cth)), each party, Mr Jamshidi born … 1977 and Ms Soroush born … 1985, and their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the male child B born 2 January 2012 from the Commonwealth of Australia until the child is eighteen years of age AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Family Law Watchlist until the child is 18 years of age or until the Family Court of Australia or the Federal Circuit Court of Australia orders its removal or with the authenticated consent of both parties.
In the event the father elects to undertake therapy with a suitably qualified and experienced psychologist in order address his aggressive behaviour and lack of insight into the impact of his behaviour on others, he shall ensure that such person is provided with a copy of the reasons for judgment dated 4 August 2017.
Pursuant to s 65 DA(2) and s 62B, the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
PROPERTY
The net proceeds of sale of the former matrimonial home held in trust on behalf of the parties shall be disbursed as follows:
(a) A payment to the Mr Jamshidi in the sum of $3,857.63 from which he shall pay out the personal loan for the motor vehicle to Westpac; the Mastercard debt to Westpac and the Vodafone debt;
(b) A further payment to Mr Jamshidi in the sum of $39,958.52.
(c) A payment to Ms Soroush in the sum of $52,458.52.
In accordance with section 90 MT(4) of the Family Law Act 1975 (Cth) (“the Act”), a base amount of $35,325.50 is allocated to Ms Soroush out of Mr Jamshidi’s interest in the CBUS superannuation fund.
In accordance with section 90MT(1)(a) of the Act:
(a) Ms Soroush (or such other person to whom a splittable payment is payable) is entitled to be paid, using the base amount calculated in the immediately preceding order, at the amount calculated in accordance with part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
(b) The entitlement of Mr Jamshidi in the CBUS superannuation fund (or the entitlement of such other person who becomes entitled to receive a payment out of Mr Jamshidi’s superannuation interest) is correspondingly reduced by force of this order.
The trustee of the CBUS superannuation fund (the trustee) shall do all acts and things and sign all documents as may be necessary to:
(a) Calculate, in accordance with the requirements of the Act the entitlements awarded to Ms Soroush pursuant to paragraph (11) herein; and
(b) Pay the entitlement when the trustee makes a splittable payment from Mr Jamshidi’s interest in the CBUS superannuation fund.
This order has effect from the operative time and the operative time is four business days after service of a copy of the sealed orders on the trustee.
After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (Cth) (“the SIS regulations”), Mr Jamshidi shall do all things and sign all documents as may be necessary, including but not limited to exercising Ms Soroush’s request in accordance with the SIS regulations, for the payment of the non-member spouse interest by way of a lump sum entitlement in accordance with the SIS regulations.
The court notes:
(a) The value of the non-member spouse interest is calculated in accordance with the SIS regulations; and
(b) Any payments from the Mr Jamshidi’s interest in the CBUS Superannuation Fund made after the trustee has created a new interest in the mother’s name in the CBUS Superannuation Fund are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001 (Cth).
MISCELLANEOUS
Any remaining application is dismissed.
The independent children’s lawyer is discharged.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jamshidi & Soroush has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 11207 of 2013
| Mr Jamshidi |
Applicant
And
| Ms Soroush |
Respondent
REASONS FOR JUDGMENT
The parties to this dispute are Mr Jamshidi (“the father”) and Ms Soroush (“the mother”). They are in dispute about parenting and property. They have one child together, namely, B (“the child”) born in 2012.
Proposals of each party
The father is seeking an order for equal shared parental responsibility for major long term issues and to spend time with the child every weekend from Friday to Sunday and every Thursday evening and that the child remain on the Airport Watch List. In relation to property, the father proposes that the wife receive fifty percent of the net proceeds of sale of the former matrimonial home (after payment of the debts) and fifty percent of his superannuation by way of a split.
The mother is seeking an order for sole parental responsibility and that the father spends no time with the child. In relation to property the mother proposes that from the net proceeds of sale of the former matrimonial home (after payment of the debts) and superannuation she receive seventy percent including a superannuation split of $24,300.
Conduct of trial
The father is self-represented. While he speaks and writes in English, it is not his first language and on occasions it was difficult to understand him although clarification was always possible. It was apparent that he understood the proceedings and questions put to him although at times further explanation or clarification was required. He did not seek an interpreter. The mother and Independent Children’s Lawyer were represented by counsel.
Unfortunately, the trial had to be adjourned on the second day of trial because the father collapsed in court and was taken by ambulance to hospital. The trial resumed on 18 May 2016 and was again adjourned due to the parties and Independent Children’s Lawyer reaching agreement on an interim order providing for the child to spend time with the father subject to the father completing a Responsible Parent Program. It was anticipated that the father would commence to spend supervised time with the child in or about December 2016. For various reasons the father did not complete the course and has not spent time with the child. Accordingly, the trial resumed in June 2017.
Given the nature of the allegations against the father and the fact that he was representing himself, the mother’s counsel was afforded an opportunity to request special arrangements for the cross-examination of the mother. The reason for affording the mother that opportunity was explained to the father. The only request made on behalf of the mother was that she be excused from looking at the father during his cross-examination of her. That request was acceded to.
In relation to property matters, as neither party was in a position to establish that the trustee of the father’s superannuation fund had been afforded procedural fairness, an order was made at the conclusion of the trial for the mother’s lawyer to file an affidavit attending to that matter within fourteen days. Unfortunately, when filed, the affidavit did not include any response from the trustee so the finalisation of the matter was attended by further delay until that issue was resolved.
Background
The parties were married in 2009 and separated on 10 October 2013. They divorced on 11 April 2015.
The father was born in 1977 and the mother was born in 1985. The mother and father were born in the middle East and are Muslims. The father immigrated to Australia in January 2007 and the mother joined him in Australia in March 2009.
The father worked in professional capacity in Australia but was made redundant in 2013. He obtained some casual work during the period September to December 2015 and undertook further study. He now works part time. The mother is not employed and is in receipt of a Parenting Payment.
Since separation the child has lived with the mother and has spent no time with the father since 17 October 2013.
Prior to their separation the mother and father spoke only their native tongue in their home.
The mother alleges that the father perpetrated significant violence against her and threatened to kill her and the child during the relationship and subsequent thereto.
The father denies that there has been any family violence and contends that criticism of his behaviour at any time is unjustified.
He alleges that the mother has fabricated family violence allegations for the purpose of having him removed from the home and/or to assist in her obtaining a divorce in the Middle East and/or to deprive him of his son.
The father consulted with a psychologist, Dr C, in 2014 over five sessions. A general practitioner had referred the father to Dr C under a mental health plan for treatment of mixed depression and anxiety although not at levels requiring medication. Dr C agreed with the diagnosis. As part of his consultation the father conveyed to Dr C his view that he does not really get angry and if confronted by a situation that makes him frustrated and annoyed he tries to find a solution to the problem and tries to calm the situation.
There have been two Protection Orders made in favour of the mother the most recent of which expired in March 2016. The second protection order was made after a contested hearing. Both applications were brought on behalf of the mother by police.
In the event the father is found not to present an unacceptable risk then there may remain a need for supervised time at least for a period as he has not seen the child since 2013 when the child was only twenty-one months old.
The father does not accept the need for supervision in any circumstance.
The parties sold their home subsequent to separation and the balance proceeds remain in a solicitor’s trust account. There is no other property of significant value other than the father’s superannuation valued at about $58,000.
Issues for determination in the parenting matter
The significant issues for determination were identified during the trial as follows:
a)Whether the father presents an unacceptable risk of harm to the child if he were to spend time with him;
b)If so, whether supervision would afford sufficient protection.
How parenting applications are determined
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer.[1]
[1] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637
The Court is not required to make findings of fact on every factual dispute raised by the parties.[2]
[2] Baghti & Baghti [2015] FamCAFC 71
The objects of the Act are set out in s 60B(1) and are to ensure that the best interests of children are met by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children;
e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
‘Abuse’ in relation to a child, is defined in s 4 of the Act and means an assault (including a sexual assault) or involving a child in a sexual activity or causing the child to suffer serious psychological harm or serious neglect.
‘Family violence’ is defined in s 4AB of the Act and means violent threatening or other behaviour that coerces or controls a member of the person’s family or causes that person to be fearful. Examples of such behaviour are set out in the section.
Section 61C provides that each parent has parental responsibility for a child subject to any order made by the Court.
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.
Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[3]
[3] Banks & Banks (2015) FLC 93-637
In cases where it is suggested that a child will be exposed to an unacceptable risk of harm, the Court is required to identify the nature of the harm and assess its magnitude and the extent to which the risk can be ameliorated by an order such as supervision.[4]
[4] M & M (1988) 166 CLR 69
Does the father present an unacceptable risk of harm to the child?
The most significant issue in this case concerns the allegations of violence made by the mother against the father. The positions of the parties are stark i.e. the mother makes allegations of significant physical violence and threats to kill and the father denies categorically that he has ever physically abused the mother or made threats to kill. He accuses the mother of fabricating the allegations.
It can be very difficult to prove allegations of family violence given that so often there are no witnesses. It can be very difficult for judicial officers faced with competing accounts of an event to determine where the truth lies. It is important therefore that all evidence that tends to corroborate an allegation is put before the court. If it is not, an adverse inference may be formed of the person making the allegation i.e. that had the witness been called their evidence would not have assisted.[5]
The allegations of violence made against the father
[5]Jones v Dunkel (1959) 101 CLR 298
March and April 2009
The first incident of physical violence is alleged by the mother to have occurred in March 2009. In paragraphs 32 – 34 of her main trial Affidavit the mother deposes as follows:
The first incident of physical domestic violence in our relationship occurred approximately 3 days after I arrived in Australia (in March 2009), when I tried to suggest to [Mr Jamshidi] that he should eat slower. We had dinner on the ground at home, sitting down on the ground, and I recall that [Mr Jamshidi] hit me. I was so shocked that I went into the bedroom to remove myself from the situation. [Mr Jamshidi] followed me into the bedroom and hit me with his belt continuously for about 10 minutes. I was in so much pain. I was crying. I told him I have too much pain in my back. After 10 minutes, he returned to the room and started massaging my back and he told me “I didn’t want to hurt you but you shouldn’t have made me angry”.
In or about April 2009, we in the car to go shopping. [Mr Jamshidi] did not mention anything about my clothes when we left the house but when we got to the shopping centre and we were in the car park he started to show his anger. He said I was not covered enough (referring to my hair/head covering). I was wearing a scarf but he was angry that the sleeve did not reach my wrist and just went to my forearm. He said to me “my mother and sister are always covered with a chador but you are not and you are not a good Moslems like them (chador is the full-length black dress which covers the whole body but not the face and you can cover your face when you want to). I responded that being a good Muslim didn’t mean you have to cover yourself with the chador. We argued in the car and he got angry and angrier.
He said “I am not taking you to the shopping”. He told me he would kill me and drop me where we were and no one would be able to find me. [Mr Jamshidi] leaned across me and opened the passenger door and he started trying to kick me out of the car. At first the car was moving but when he couldn’t push me out of the car, he stopped the car and tried to push me out and was shouting at me. While this was happening, a man approached the car and told [Mr Jamshidi] to stop or he would call the police. [Mr Jamshidi] drove off and I closed the car door. Whilst [Mr Jamshidi] was driving home he kicked me and pulled my hair. He told me that he did not want me and that he wanted to go to Iran and get married again. He told me I should leave.
(errors in original)
The father responds to these allegations in paragraph 8 of his affidavit filed 22 May 2015 as follows:
… I did not hit her at all. I never wanted her to wear chador (a long black dress that covers the whole body of woman except face and hands) as she mentioned. I never recommended wearing chador as it is not suitable for here in Australia.
When cross-examined about these incidents the father confirmed his denial that anything like alleged by the mother occurred. He reiterated that he had not used a belt to hit his wife. He said this did not happen. In relation to the incident alleged to have occurred on the way to the shopping centre he reiterated that such an incident did not occur and he stressed that the chador is not worn here in Australia.
I note several photographs of the mother are annexed to the father’s affidavit. Her attire in those photographs (some of which are taken with the father) is ‘western style’. In some of them the mother is not wearing a scarf that covers her hair and in a number she is not wearing sleeves that cover her whole arm.
August 2009
In paragraph 38 of the mother’s affidavit the mother deposes as follows:
[Mr Jamshidi] and I returned to Australia in August 2009, but shortly after, [Mr Jamshidi] punched me with a closed fist in my left eye. I was left with a black eye that meant I could not leave the house for about one month. I can’t remember the detail of the fight, just that I couldn’t leave the house afterwards because of my injuries. I was not allowed to go to the doctor because [Mr Jamshidi] argued that if I went to the doctor it might jeopardise application for permanent residency in Australia.
The father responds to this allegation in paragraph 11 of his affidavit in which he says as follows:
… She always had a choice to visit a doctor whenever she wanted. The doctors subpoenas (sic) proves that. DV is a civil matter and does not affect our Visa application.
When cross-examined about this incident the father denied having ever punched his wife in the eye. He denied that he had not allowed her to go to the doctor and pointed to the fact that she often went to the doctor during their marriage. He said that domestic violence was not considered a crime; it was a civil matter and therefore would not have affected their application for residency.
The only medical records tendered in the proceedings related to consultations after separation.
2010
In paragraph 40 to 42 of the mother’s affidavit she alleges as follows:
In 2010, my father came to visit us …: during this visit, [Mr Jamshidi] and I had an argument which led to [Mr Jamshidi] becoming angry at my father and calling me, my sister and my mother names. I recall the fight being about my friend who did not wear a hijab. It was around the time of the fireworks in Brisbane in September. [Mr Jamshidi] said he didn’t want to go to the fireworks he wanted to go to the mosque. I tried to argue that it would be better to take my father to the fireworks and that there was nothing special on the mosque that evening. We then argued and he implied that I wanted to go to the fireworks because I wanted to see my friend (who he didn’t approve of because she didn’t wear a hijab). He started shouting and my father went out of the house. He started calling my father bad names because he wanted to fight my father. When my father came in he started to use bad names for my father and he kept repeating those bad names. My father said “keep silence I am older than you – keep silence! [Mr Jamshidi] replied “what do you want to do if I don’t stop, you want to hit me come and hit me”. My father got angry and he said “I put down the religion that you rely on which allows you to act so rudely. You say your religion allows you to fight like that”. [Mr Jamshidi] said “if you were a good Muslim your daughter would not behave like that. You should be coming to the Mosque but instead you want to go to the fireworks”.
He asked my father to leave house and he told me “you have to choose between me and your family. If you go with your father, you can never come back to this house and if you stay with me you should never see your family again”. That night, my father tried to convince me to leave with him and go back to [the Middle East].
I initially left the home with my father. We went and stayed in another place that night. The next day I telephoned the head of our Mosque and explained to them our situation and asked for help. I did not want to choose between my husband and family. They promised to come to my house and help fix the situation. My father urged me to get a divorce and return to [the Middle East] because [Mr Jamshidi] was not a normal person. Three people from the Mosque came to our house. They counselled [Mr Jamshidi] that he was not being a good Muslim and they made him swear to God and on the Koran that he would never hurt me anymore. So [Mr Jamshidi] swore that he would not hurt me anymore. I did not return to [the Middle East] as I thought that I could help [Mr Jamshidi] become a better person.
The father responds to these allegations in paragraphs 13, 14 and 15 of his affidavit filed 22nd of May 2015 as follows:
… I go to places where friends have no hijab. I and [Ms Soroush] used to go many fireworks. I have fun and entertain with family as needed.
… She is saying “I thought I could help [Mr Jamshidi] become a better person”.
… Needs to tell the whole story. Her father asked for her dowry. The member of our community said that if you ask for dowry he can then divorce your daughter at any time.
When cross-examined about this incident the father agreed that his wife’s father came to visit but he disagreed there were any fireworks on that particular night. He disagreed that there was any altercation. He said that if fireworks had been on they would have been later in the evening and he would have been able to go to the mosque between 5 and 6 pm. The implication being that there would have been no need to have an argument about attending fireworks or the mosque as he would have been able to attend both. He denied saying to his wife that she had to choose between him and her family. He says that there was a disagreement but did not state what the disagreement was about. He agreed that someone came to the house but denied saying that he would not hurt his wife any more.
No evidence was called by the mother from her father or from anyone from the mosque. I note elsewhere in the mother’s evidence she refers to her father having a heart condition and how the father would taunt her during arguments that he would call her father and cause him to have a heart attack, although no specific evidence was given by the wife as to why she did not produce evidence from her father to corroborate, as far as he could, the altercation that occurred. As to the non-appearance of the people from the mosque the wife says that in their culture they keep such issues to themselves although there was no explanation as to why the persons from the mosque were not subpoenaed.
Early April 2011
At paragraphs 44 to 48 of the mothers affidavit she alleges as follows:
In early April 2011, [Mr Jamshidi] invited a male friend of his for dinner. Under Islamic law, a woman is not allowed to be in the same house alone with the male when there is no relationship between them. The male friend arrived when [Mr Jamshidi] was not home, so we sat in the living room. We kept calling [Mr Jamshidi] to come home but he didn’t answer his phone. He said if [Mr Jamshidi] doesn’t come home, I won’t stay for dinner. After about one hour he left because we couldn’t get on to [Mr Jamshidi]. I went to the front door to say goodbye. When I came back in the house, I realised the guest room door was closed (I always left it open) and I went into the guest room and realised the closet door was closed (I always left it open because I was scared in the big house on my own). I was shocked to find [Mr Jamshidi] hiding in the closet. He was sitting on the ground and laughing loudly with a smirk on his face. He kept telling me “I was here and I know exactly what happened”. I responded – “you were here and you would know that nothing happened”. He said “yeah I know nothing happened but if something had happened I would have known.”
[Mr Jamshidi] became very angry with me for being in the house with a male person. An argument began and I insisted that [Mr Jamshidi] should take me to the airport and that I wanted to go back to [the Middle East]. I wanted to leave and go home because I wasn’t feeling safe with a person who thinks this way. I asked him to take me to the airport or otherwise I would call the police. Then he got angry and threw my phone away. He then pushed me on the bed and sat on my chest. He had his knees on my hands and started choking me with his hands. He put his knees on both hands so I couldn’t use my hands. The only thing that came to my mind was to use my legs to try to move him. I wasn’t able to push him off with my legs. I wanted to use my phone to call 000 and he threw my phone at the wall. My phone went through the wall and lodged in the wall. I grabbed my phone and went to the living room and call 000. He came after me and hung up the phone. I talk to the police only for a few seconds and he hung up. They called me back and he answered the phone. They wanted to talk to me. He said my wife is scared because there was a stranger outside the house but no one is there now. He handed the phone to me and as I began talking, [Mr Jamshidi] grabbed the phone from me and disconnected the call, but the operator called straight back. [Mr Jamshidi] answered the phone that the operator would only speak to me. [Mr Jamshidi] was sat on top of me and threatened me to tell them that I had thought a stranger was in the house and that’s why I called the police. They kept asking him to talk to me. He eventually gave the phone to me and he was standing beside me telling me to say the same thing. They asked me if I was okay but I said everything is fine. As I was terrified of [Mr Jamshidi] I did as he told me to do.
That night I asked [Mr Jamshidi] to drive me to the airport so I could go to Canberra to ask the … embassy to help me get back to [the Middle East]. I decided to leave. He agreed so that he could be sure I was not going to the police or anywhere else.
He took me around different sections of the airport was laughing at me that I didn’t know what I was doing or how to get a flight. I said “let’s go to the information section”. He started smirking at me. I grabbed his hand and tried to drag him to the information section so I could make some enquiries. While this was happening [Mr Jamshidi] started yelling out “police come and help me she is harassing me” a police officer approached and talk to me. [Mr Jamshidi] showed the police officer some marks on his hand from my nails and stated “look what she has done!” A police officer approached us and spoke to me privately. The police officer indicated that they could see marks around my neck.
I informed the police officer about the incident that day (or the day before as it was after midnight) and the police officer tried to convince me to make a report to the police. As I was scared of [Mr Jamshidi], I refuse to make a formal complaint. The police officer then told me that she was going to apply for a protection order on my behalf. She suggested that I do it on my own behalf but I was too scared of Mr and just want to go home to be safe.
(errors in original)
The father responds to these allegation at paragraphs 48 and 49 of his affidavit filed 6 February 2015 as follows:
… The male she is mentioning was [Mr D] my 60 years old colleague who was invited by me for dinner. He and his son were working the same place as I did. Me and [Ms Soroush] were to my friend’s house before. He travelled to [the Middle East] before and he was very interested in the history and culture .... [Ms Soroush] told me before that she wants to invite my friend to our house. When I saw [Mr D] at my workplace I invited him for dinner, he accepted. I rang [Ms Soroush] and told her that I’ve invited [Mr D] for dinner. [Ms Soroush] told me she is not read and you need to ring him and cancel it and change for another day. I rang [Mr D] but I could not reach him in mobile phone. When I rang him the next time they told me that he has already left the office. He was on the train coming to my house as he did not have any car. I told [Ms Soroush] that if [Mr D] calls I will not answer, I thought that if I do not answer he may change his mind. [Mr D] text me that he is in train station. Me and [Ms Soroush] had an argument for inviting [Mr D], I left home and she went to pick [Mr D] at station. [Mr D] texted me that I come for dinner but I did not come. Eventually when they finished dinner [Ms Soroush] went to take [Mr D] to train station. When I saw them went out, I went in, when [Ms Soroush] returned home, I took my shoes and went to the room so I can go out without arguing with her. When she came to the room she told me that I have been hiding there. I told her that I came home after you left home. I told her that I have been out; even I showed my shoes that I had with me. Then she started yelling and wanted to ring police, I told [Ms Soroush] that you are thinking mistake and we can sort this out by having some of our old friends here, she refused and try to make call police. I did not hit her, I only try to cool down and calm, then she told me that she wanted a divorced and she wanted to go to Canberra. She forced me to drive to airport.
… She did not need to go to embassy to return [to the Middle East]. She told me that she want to go to Canberra to [the] embassy to divorce me. I told her that there is no flight that time of night but she did not listen to me and instead she forced me to drive to the airport while she started hitting and yelling me. When I arrived at airport I asked police there to help me as she was pulling my shirt and harassing me. What they did they put me in the watch house for the night. When I came out and I found that she has applied for DV. I was shocked the next day when I found that she has told police that I hit her and also that I was hiding in the house to find her with my friend!
(errors in original)
When asked about this incident in cross-examination the father conceded that he had invited a work colleague to their house for dinner and was not at home when he arrived. He said that he had called his wife from work and said he was going to bring the work colleague home. He said that his wife objected to that and said she was not ready. Bizarrely, he concedes that he hid in a cupboard but said he did so to avoid having an argument with his wife. He said that he expected an argument because when he had suggested inviting a work colleague over for dinner she had objected. He denies that he was in the cupboard at the time that his work colleague was at the house. He said that he entered the house when his wife had driven his work colleague to the station. He denied that he ever threw her phone away. He denied that her pushed on the bed. He denied putting his knees on her chest and generally denied any allegation that he was physically violent with his wife. He said he just wanted to defuse the moment. He said that his wife accused him of wanting to find her with his work colleague and he said “no”. He conceded that his wife did dial 000 or at least he thought so but he denied taking the phone. He denied telling the operator that she had called because she was scared of a stranger in the garden. He says that his wife forced him to drive her to the airport and he did so. He agreed that his wife grabbed his hand to take him to the information desk to buy a ticket. He agreed that he called out to police because he just wanted to defuse the situation. He says he cannot remember if he showed police any marks on his hand or whether he said that the mother had cause that from her nails. He agreed that he was transported by police from the airport and that he spent the night in the watch house. He agreed that the police brought an application for a protection order against him but he denies that he had been physically violent to his wife. He agreed that he did not contest the application for a protection order.
The mother did not produce any evidence from police nor from the operations centre that allegedly took the phone calls on the night in question. In particular there is no evidence to corroborate the mother’s statement that a police officer commented on the marks on her neck. There is nothing in exhibit 2 to independently corroborate the mother’s version of events.
However, I note the father’s concession that he was retained in the Police Watch House overnight and that police applied for and were granted a protection order in favour of the mother which the father did not oppose.
December 2011
In paragraph 53 of the mother’s affidavit she deposes as follows: –
I recall that he was violent to me when I was pregnant. I recall I was quite pregnant around eight months. I remember it was late at night around 9:30 PM. We had been arguing and [Mr Jamshidi] pushed me back and I fell down. I remember I was worried about the baby because I was so big at the time. We went to the [E Medical Centre] at [Suburb F]. I told the doctor that I had accidentally fell and that we wanted to check the baby’s heart beat was okay. Fortunately everything was fine.
(errors in original)
The father responds to this allegation in paragraph 20 of his affidavit filed on 22 May 2015 as follows:
… She is lying she repeatedly hit the child in her stomach while she was pregnant, she said that she did not want our son. She said that she want to drop our son. I remember receiving a speeding fine that day when [Ms Soroush] rang me to come home to take her to the doctor.
(errors in original)
When cross-examined about this incident the father denied having pushed the mother. He denied they went to the doctor that night. He says that she called him at work and told him that she had bleeding and that she did not know the cause. He says that he left work to go to her and to take her to the doctor. He said that while she was pregnant she was depressed and said she did not want the baby and had on occasions hit herself.
The mother did not produce evidence from the doctor or his records. Although such evidence would not have corroborated the version involving violence it would at least have provided some corroboration of her version given that the father disputes they went to the doctor at night.
10 October 2013
In paragraphs 58 to 67 of her affidavit the mother deposes as follows:
… I was at home baking some cookies for a friend when I went out to deliver them. When I returned [Mr Jamshidi] began yelling at me and asking where I had been. I told him that he knew I had been out to deliver the cookies. He said that [the child] crying and he couldn’t deal with him anymore. He then started hitting me, slapping me for a long period of time. I was sitting on the couch holding [the child] on my lap facing me. The only thing on my mind was to protect [the child] and I remember thinking if I hold [the child] I could protect him. [The child] was crying and yelling “no no mummy know”. My mind was shocked and I couldn’t think of anything to do.
Mr then grabbed my hair with one hand and started punching me in the side of my head with his other hand. He hit me a lot of times. He was saying “I will kill you now before police coming” I was still sitting on the couch and he was bending over me. Then he started choking me.
After that, I was in absolute shock, Mr ran to the kitchen and got a knife and came back and held the knife up to my stomach and then up to my neck and told me “I can kill you, I will kill you before the police turn up”.
Mr held a knife to the back of [the child’s] neck. He then said “I will kill you, I will kill, you and I will kill myself”. During this entire incident I was holding [the child] .
Mr then got up and walked around me threatening me with a knife. He walked around the house, yelling and shouting and then would push the knife into the sides of my belly and would threaten to kill me and [the child] before I could call the police. By that time, I started to think of an escape. While he was going around the house, I waited him to go to the furthest part of the house and then I ran.
I ran to the kitchen and tried to get my mobile phone on the top of the bench. I grabbed it and ran out of the front door. He grabbed the back of my shirt and tried to drag me back into the house. Mr yelled at me to come back in the house to cover my hair and body.
I fell over outside one of our neighbours came outside and saw us. [Mr Jamshidi] then stopped and went back to the house. I went across to the house in front of that neighbour. I sat there for about 15 minutes and my friend’s husband turned up because he was supposed to come and collect some sweets.
My friend’s husband saw me and we went to the front door and Mr started talking to him about our fight. He said “look at [Ms Soroush] she is a bitch because she is outside and has no covering”. He then started to tell him about the fight. I said it was none of their business it is our problem. I gave my friend’s husband his sweets. Before he left I wanted to leave the house and [Mr Jamshidi] said no but because my friend’s husband was there, I was not able to leave. While my friend’s husband was at the house I managed to leave house and sat outside the same neighbour’s house. I stayed out there and was outside when my friend’s husband left.
After 20 minutes, I then returned to the house and heard [Mr Jamshidi] on the phone. I believe that he was talking to his mother saying that I had left the house without covering my face and calling me names. He was asking his mother for directions on what to do next. I recall that he said “what shall I do now?” [Mr Jamshidi] finished his conversation and left the house without saying anything to me.
[Mr Jamshidi] did not return that night. We had friends staying with us for about 10 days. They were with me and [the child] until Saturday, 19 October 2013. I was too scared to stay on my own. I left to another friend’s place that day.
(errors in original) [emphasis added]
The father provides some response to these allegations in paragraph 24, 25 and 26 of his affidavit filed 22 May 2015 by firstly pointing to some inconsistencies in the mother’s versions of the allegations. Secondly he states that when the friend came to collect sweets he was in his room, that they talked and he gave him the sweets and he received the money and the friend left. He states that they did not talk about his wife. He states that he left the house because his wife had told him she would kick him out as soon as she becomes an Australian citizen. He states that at the time he left the house his wife was sitting on the day bed and watching TV.
When cross-examined about this incident the father agreed that on 10 October 2013 he was at home looking after the child while his wife was out delivering cookies. He agreed that he had sent her ‘i-messages’ to come home. He denied that he was angry when she arrived home but that he was upset. He said that he was concerned about the child. He denied hitting her. He denied slapping her. He denied choking her while she was on the couch or at all. He stated – “It never happened. I never hit her. This is a joke.” He denied pulling her hair and punching her. He denied saying to the mother that he would kill her before the police came. He denied getting a knife. He denied holding a knife to her. He denied holding a knife to the child’s neck. He denied saying that he would kill her. He denied yelling or shouting. He denied pushing a knife into her stomach. He stated that there were no police and that he never said those things. He said that after she arrived home he went into his room by which he meant a room where he had his computer and he was talking to his mother. He said that he stayed in his room until a friend came to collect the cookies. He said that he gave his friend the cookies after the friend gave the mother $40. He agreed that he called his mother because of what the mother had said, namely, that as soon as she got an Australian passport she would kick him out of the house. He said he left the house and it was his choice to leave.
Annexure TS4 to the mother’s affidavit is the application for protection order made on her behalf on 24 October 2013. An account is provided of the incident that is alleged to have occurred on 10 October 2013 which provides a different account in relation to the choking incident as follows:
… The aggrieved has then gotten up and tried to walk to the kitchen to get her phone and try to leave. The respondent has then approached her from behind and has proceeded to strangle her for around 20 seconds. The respondent eventually let go and the aggrieved ran out of the house. The respondent has chased the aggrieved out of the house and tried to drag her back inside. The aggrieved has stated that a neighbour has seen what was happening so the respondent has let go and has gone inside. The respondent has spoken to his mother and decided to move out for two weeks. Between the 19/10/2013 and the 20/10/2013 respondent has started texting the aggrieved making threats to kidnap his son and making threats to hurt her friends who have been aiding her. The respondent also stated he has been following the aggrieved…. [Emphasis added]
Annexure TS1 to the mother’s affidavit is a letter from a Dr G which says as follows:
I am writing this letter as GP I certify that I examined above named patient on the 10th/10 2013, home attendance, after being informed of a domestic violence incident.
There were visible bruises, related to finger marks, caused by pressure on the throat, above the thyroid cartilage.
This was caused by husband chocking patient. Squeezed her throat from behind. I could also identify other lighter bruises on sides of the neck, related to finger marks.
(errors in original)
During cross-examination, Dr G said that she went to the mother’s house on the evening of 10 October 2013 at about 7 or 8 o’clock as a result of a telephone call to the mother which she made after her husband told her that he thought there had been an argument. She observed the mother had a large, dark blue bruise on the front of her neck about four centimetres wide and about one or two centimetres high and oval in shape and two smaller bruises on the left side of her neck about one to two centimetres consistent with finger marks. The smaller bruises were not as dark as the larger one. She said the mother told her the bruises were caused by the father squeezing her throat. She said that the bruising was clear and the mother was not wearing a scarf when she saw her. She said that generally the mother wore a scarf tied around her hair but not covering her neck. (There are a number of photographs of the mother annexed to the father’s affidavit. In some of those photographs the mother is wearing a scarf that covers her neck but in others it is as described by Dr G and just covering her hair). She said that the mother did not tell her that the father had threatened to kill the child. The mother told her she had been punched in the head by the father and kicked but she did not examine the mother other than noting the bruises on her neck. She agreed that she had been a friend of the mother’s for about two years prior to 10 October 2013.
During her cross-examination in the domestic violence hearing in the Magistrates Court in January 2014 (a transcript of which was annexed to the mother’s affidavit) the mother conceded that Dr G is a friend and that she had gone to H Town with the doctor the week before the alleged incident. She also conceded that she had been in Tasmania with the doctor last year or two years prior.
According to the mother’s evidence, Dr G’s husband was present on the day of the alleged incident. The mother’s evidence is that this man was trying to talk to both of them “to stop the fight”. She alleges that he was a witness to the father calling her a “bitch” because she was not “covered”. The mother says this man was present after the alleged choking and knife incident. The mother says that she asked him to leave because she was at that time outside the house and did not want to re-enter the house to talk. The mother did not produce evidence from Dr G’s husband and no explanation for that failure was provided by her.
It is common ground that at the time of the alleged incident there was another family living with the mother, father and the child at their home. According to the mother’s evidence they were there until 19 October 2013. No one from that family was called as a witness by the mother. No explanation was provided by the mother although it was submitted by the mother’s counsel that no one in the family had seen anything that would have corroborated the history of family violence.
On the day after the alleged incident it is common ground that the mother, father and the child attended upon a Dr J in relation to a health problem of the child. It is common ground that the mother and father attended with the child together as a result of the mother’s text message to the father (the father had left the home on 10 October 2013). When the trial resumed on 18 May 2016 the Independent Children’s Lawyer filed an affidavit annexing a letter from Dr J dated 20 April 2016 in which he said:
…
I saw [the child] with his parents in October 2013. There had been some concern about his development and testicular descent.
Examination revealed him to be a normal child.
The aim of the consultation was to reassure the parents that everything was normal and there was no indication for surgery. His mother seemed unhappy to accept that her child was normal and, after a long discussion, I provided her with the name of two of my colleagues to gain a second opinion from.
I saw no evidence to suggest that there was any bruising or injuries on any party concerned during the consultation. The behaviour of his parents, particularly his mother, was not abnormal in that there was a concern that they wanted to make sure they had done everything necessary for their child’s care.
…
(errors in original)
Surprisingly, Dr J was not required for cross-examination.
The father also gives evidence that after this alleged incident the mother agreed to his taking the child for outings and in particular on 13 October 2013 she agreed to his taking the child to a place called Heritage house. Annexed to his affidavit are three photos of the child which he says shows no injury to the child. It is true that no injury is apparent in the photographs.
Subsequent to the initial temporary protection order made on 24 October 2013 the mother sought to amend the order by adding the name of the child. In support of that application she relied upon a letter from a Dr K which says as follows:
This is to certify that [Ms Soroush] presented to our surgery on 14/ 10/13 regarding domestic violence issues on 10/10/14. She told me that her husband had a fight with her that day threatening her and her son with a knife. There was some scratches on her son’s neck. Her husband left the house after that.
(errors in original)
Dr K gave evidence in the domestic violence hearing on 4 March 2014 and during his evidence he stated the following:
… [Was it with the knife…?] – It is very difficult to say but it is unlikely, because it is scratches and not cuts. If it is, I guess – if it is a knife, it would be cuts not scratches.
… [Was it necessary to report to any police or child safety authorities?] – Well, it is a very difficult situation because [Ms Soroush] at that time was very hesitant to pursue it further to the police or to anyone else for her own reasons.
… [And did they appear to be recent scratches?] – It was four days old, so it wasn’t recent… [I know that you were told they happen four days ago, but what I’m asking is what you observed them to be.…] – No, it wasn’t you know – something that happened the day before or something.
During the domestic violence hearing the mother conceded that the child had spent time with the father subsequent to this alleged incident but contrary to what the father says, namely, that this was by agreement, the mother says that the father would simply turn up at the home and take the child. On one occasion in particular, she gave evidence that “he took my son around 4, I think – 4 or 5 and he came back around 10 – 10:30. And the time that he brought back – gave my son back, my son was vomiting.”
There is no evidence that the mother contacted the police or any other person in circumstances where she alleges that only a few days before the husband had violently attacked her and the child and threatened to kill them. This is also in circumstances where the mother states that the father had threatened to kidnap the child.
During the mother’s cross-examination in the domestic violence proceedings she stated as follows:
… you started talking, talking and threatening me and you were threatening my friend because you knew she was the one who was helping me because I don’t have a car, so you start threatening her and said - “she’s helping you. She can’t help you. I’m your husband and I want to punish you and she can’t help you. She shouldn’t help you. If she’s – if she continue helping you, I will kill her and her kids, her brothers, all of them” …
The mother did not produce evidence from this friend and there was no explanation for failing to do so.
Prior to the domestic violence hearing the father attended upon Dr K’s rooms on 22 February 2014 to serve a subpoena on him. Dr K’s notes report that the father was “using his voice in [a] threatening manner throughout his visit” and that the father recorded him without his permission and took his photograph. The father conceded attending at Dr K’s surgery and recording him and taking his photograph.
Time spent with the child after separation
After separation the father spent the following time with the child:
a)Friday, 11 October 2013;
b)Saturday 12th of October 2013;
c)Sunday 13th of October 2013;
d)Wednesday 16th of October 2013; and
e)Thursday 17th of October 2013.
It is not in contention that the father spent time with the child on each of these occasions. What is in issue is how these visits came about. The father contends that he made arrangements with the wife by sending her text messages (which are supported by the annexures to his affidavit, although the messages are somewhat directive), while the mother contends that the father simply turned up to the property and took the child. These visits occurred at a time when the family was still staying with the mother in the former matrimonial home.
It is common ground that the father has spent no time with the child since 17 October 2013.
There is no evidence that the child came to any harm on any occasion while in his father’s care on the above days. There is no evidence that the mother made any complaint to any person about the father having taken the child as alleged by her.
Alleged threat made to counsellor from M Group on 24 October 2013 and subsequent behaviour in March 2014
During the cross-examination of the father it was put to him that he had made threats during a conversation that he had had with a domestic violence worker at the courthouse subsequent to the hearing on 24 October 2013. Specifically, it was suggested that he had said “the order was just a piece of paper. I could kill my wife.” When asked if he had a plan to do so that he said “no”. It was also alleged that he went on to say “I could kill her if I were so minded” and that when the domestic violence worker had told the father he could go to gaol for life if he killed his wife he responded “not if I kill myself first”.
The father conceded that he had a conversation with a domestic violence counsellor after the domestic violence hearing on 24 October 2013 and that he said something like “a piece of paper is not going to keep them safe” but when the worker then said something like –“do you mean you are going to kill your wife” – he immediately said to the worker “No. You have completely misunderstood”.
At the resumed hearing on 18 May 2016 an affidavit was produced from the domestic violence worker (given the pseudonym for the purposes of these proceedings of ‘Mr L’) and he was cross-examined.
Relevantly Mr ‘L’ has been a counsellor with M Group for about ten years and regularly attends court when domestic violence hearings occur to provide support for men accused of or victims of domestic violence. He holds an Arts degree with a double major in Psychology. He attends such hearings on a weekly basis and would generally confer with 18 to 30 men each week. The men he sees are from various cultural backgrounds.
Mr L said that he spoke with the father on two occasions at the domestic violence court on 24 October 2013 when a temporary protection order was made and on another occasion when the matter returned to court in March 2014 for a contested hearing. The first occasion he spoke to the father on 24 October was not for long but after the court hearing he had a much longer interview with him. He said that the father referred on a number of occasions to the mother being an “idiot” and that “it is all lies”. The father was upset and agitated and said on several occasions that he was writing a book about how Australia has got it wrong with regards to the system and that the judicial system is unfair and biased against men. Mr L informed the father of a program called ‘Men’s Behaviour Change Program’ through Anglicare or Uniting Care. He also discussed with him a service he could contact if he had nowhere to stay.
It was during the second conversation on 24 October 2013 that Mr L recalls the father saying “This is just a piece of paper. I could still kill her.” The father was referring to the protection order that had just been made. Because the father repeated this statement a number of times Mr L asked the father if he had a plan to kill the mother. The father said “No. I don’t have a plan to kill her.” but repeated that it was just a piece of paper and he could kill her. He said that when the father said he did not have a plan to kill the mother he was looking down and not looking him in the eye. Mr L said to the father that if he did kill his wife he would go to gaol for life and he says that the father responded “Not if I kill myself first”. At the time the father said this he was not angry. They were sitting down in a room talking. Mr L did not recall if the father said he had been misunderstood but he says that it was a combination of things that caused him to take what the father said seriously, including, the father’s body language. Mr L formed the view that the mother and child were at significant risk of harm from the father. He contacted M Group and reported his concerns and he was advised to contact the N Town Women’s Domestic Violence Service who had been at court that day. He did so.
Mr ‘L’ saw the father in March 2014 when he came towards him at the courthouse and threw a piece of paper at him. Mr L describes the father as “very, very angry” at him. The father told him he was a bad person and should not be doing the job he was doing as he had no training. The father initially approached him in a room and commenced to yell at him. Mr L described feeling worried that he was in a confined space and the father had lost his temper at him. He was unable to focus on the piece of paper that had been thrown at him but can recall it was some sort of legal document. When the father left the room, Mr L says that that the father continued to yell at him from the waiting area. Mr L gained the impression that the father knew he had passed on information about what the father had said on 24 October 2013 although the father did not actually say that. It may well be understandable for the father to be upset and even angry if he felt Mr L had been instrumental in causing a protection order to be made in circumstances that he regarded to be unjustified. However, his behaviour as described by Mr L and his behaviour in Court while cross-examining Mr L was most concerning. The father was unable to regulate his behaviour in the court room during his cross-examination of Mr L. He was clearly very angry with Mr L even three years after the events in question. This was not the only time during the trial that the father was unable to regulate his behaviour.
Father’s behaviour towards ‘Ms O’
Ms O is a behavioural change facilitator employed by Mr Q. This is a service that provides courses in the domestic violence education area. Ms O holds an honours degree in Social Work.
She first met the father on 25 August 2016 during an intake session. The father refused to shake her hand or look at her when he met her and announced he was an “[Middle Eastern] Muslim”.
When asked what he hoped to get out of the course he said that he just wanted to get it over with. Ms O explained to the father that things did not work that way and that the course was for men who had committed domestic violence. Ms O asked the father what behaviour he took responsibility for and she says the father responded aggressively and said he had committed domestic violence including beating his wife and financial abuse and that she should just put him in a program. She attempted to explain that her role was to assess his readiness to enter the program however the father became upset and repeated that he had committed domestic violence. The father complained about the Independent Children’s Lawyer and Australia.
After forty-five minutes Ms O says that she used an example from the father’s own words to further her explanation (the details of which she cannot now remember due to her subsequent distress). She says the father reacted “explosively, keening loudly”. Ms O said that because of her own distress at the father’s behaviour she found it necessary to debrief with another counsellor. She left work early that day because of the anxiety she felt about the session with the father. As a result of her experience her employer decided to allocate a male counsellor to the father.
The father denied Ms O’s account of reacting explosively or keening (the latter word being explained to him).
Father’s behaviour towards Mr Q
Mr Q is also employed by Mr Q as a behavioural change facilitator. He holds a bachelor degree in Applied Social Science majoring in counselling.
He saw the father in interview on 1 September 2016 during which the father said that he did not fully deny any of the allegations but does disagree about the severity of the allegations. The father told Mr Q that he was aware he needed to change his behaviours.
On 13 September 2016 Mr Q again saw the father who told him that he had changed his behaviour and is no longer controlling and that he was motivated to completing the program (Responsible Men program) for his son.
On 18 October 2016 Mr Q describes the father as a little agitated. His speech was loud and he spoke over Mr Q regularly. About half way through the session, the practice manager joined them and Mr Q describes the father’s behaviour as dominating and that he continued to talk over both Mr Q and the practice manager. The father said that he had not committed any acts of domestic violence and that the system was corrupt. He continually spoke about his right to see his child, about human rights and how many children commit suicide. Mr Q spoke to the father about the Responsible Men process, expectations and about respectful behaviour.
Mr Q met with the father again on 7 November 2016. The father told Mr Q that he is doing the course so he can see his son and that his wife is dead to him and he wants nothing to do with her. Mr Q explained to the father that the course was about him not about blaming other people. The father signed the Mr Q participant contract. As a result the father was allocated to a session group commencing 15 November 2016.
As a result of the father’s behaviour during a group session on 8 December 2016 where it is alleged the father was rude, dismissive, laughed inappropriately minimising the seriousness of domestic violence and disruptive, he was excluded from the program.
On 8 December 2016 Mr Q telephoned the father to inform him that he had been removed from the program because of his behaviour. The father was offered an individual appointment to discuss options moving forward. Mr Q describes the father becoming agitated and dominating. He accused P Ltd of being corrupt just like every other organisation and that P Ltd hates Muslims. Again Mr Q offered the father an individual session which was met with the father becoming louder and aggressive. He said to Mr Q – “I am sick of the fucking corruption … and this is fucking stupid”. Mr Q told the father he was going to end the call as he did not like being sworn at and the father responded “Fuck off” and hung up on Mr Q.
The father conceded that he had told Mr Q to ‘fuck off’ but otherwise denied his allegations that he was rude, domineering, angry or disruptive.
Father’s behaviour in a group session on 8 December 2016
An affidavit was provided by another employee of Mr Q named in these proceedings as ‘Ms R’. As Ms R had left the service she was unavailable for cross-examination and her full name was not disclosed.
I do not understand the father to take particular issue with what Ms R says in her affidavit but says he was misunderstood. He says that because he questioned things that were said at the course he was unfairly excluded.
Findings relating to allegations of family violence and behaviour to third parties
The mother bears the evidentiary onus of proving on the balance of probabilities that the father has committed the acts of family violence as particularised by her in her evidence. In assessing the evidence I have taken into account numerous matters including:
a)The inconsistencies in the mother’s evidence about particular incidents e.g. her evidence about the choking incident on 10 October 2013 entailed two very different accounts (in her affidavit and the application for the protection order) with no explanation for the inconsistencies;
b)The mother did not tell her friend Dr G on the evening of 10 October 2013 that the father had threatened to kill the child or used a knife on him;
c)Dr G did not observe any marks on the mother consistent with being repeatedly punched in the head as alleged (although there is evidence that the mother’s hair was long and thick and that the punches were to her scalp);
d)Dr G said the mother told her the father had kicked her but the mother makes no such allegation;
e)Dr K rejected the suggestion that marks on the child’s neck which he observed on 14 October 2013 were caused by a knife;
f)The mother attended at the medical rooms of Dr J the day after the alleged incident on 10 October 2013 and he did not observe any bruising on the mother (although I note that Dr J was not asked what sort of head covering, if any, the mother was wearing) or the child despite the mother alleging that the child had bruising on the side of his face;
g)The mother failed to produce evidence from the ‘friend’ who was allegedly a witness to a threat made by the father to kill her and no explanation for that failure was provided;
h)The mother failed to produce evidence from the husband of Dr G who was allegedly a witness to the father calling the mother a “bitch” “because she was uncovered” and who attended at her home after the father allegedly punched her repeatedly and threatened to kill her with a knife. No explanation for that failure was provided;
i)The mother alleges that the child was taken from her by the father on a number of occasions after separation without warning but this is inconsistent with the text message exchanges;
j)Dr G was very definite that she had observed bruising on the mother’s neck and was able to provide detailed evidence on the size, colour, shape and position of the bruising;
k)Dr G gave other evidence that was not of assistance to the mother e.g. that the mother alleged she had been kicked when the mother makes no such allegation in these proceedings, which indicated to me that she was doing her utmost to be truthful in her evidence;
l)There may be an explanation for Dr J not observing the bruising on the mother such as her wearing a hijab covering her neck on the day in question (I note from a photograph annexed to the father’s affidavit that the mother did wear a hijab on occasion);
m)The father’s inability at times to regulate his behaviour in court.
The mother has failed to discharge her evidentiary onus in relation to most allegations i.e. I am not satisfied on the balance of probabilities that most of the allegations as particularised occurred. There were a number of inconsistencies in the mother’s evidence and the mother failed to call witnesses without explanation.
I reject the mother’s allegation that on 10 October 2013 the father threatened to kill the child or caused bruising to the side of the child’s face or that he cut him with a knife. If the father had made a threat to kill, I find it inconceivable that the mother would not have told Dr G when she came to the home on the evening of 10 October 2013. No bruising was observed on the child by Dr J on the 11 October 2013 and Dr K rejected the notion that scratches he observed on the child’s neck on 14 October 2013 had been caused by a knife.
However, I am satisfied to the requisite standard of the following matters:
a)On 10 October 2013:
i)The father and mother had an argument after the mother arrived home from an outing (this being conceded by the father);
ii)During the argument the father put his hands around the mother’s neck in a choking manner such as to cause the bruises observed by Dr G;
iii)The father’s actions caused the mother to be fearful;
iv)The child was present at the time of the attack.
In making these findings I particularly rely on the evidence from Dr G of what she saw on 10 October 2013 and reject the father’s submission that Dr G was lying because of her friendship with mother or that the mother had caused the bruising to herself.
b)The father’s actions on the 10 October 2013 fall within the definition of family violence as defined in the Act;
c)On 24 October 2013 the father said to Mr ‘L’ that a protection order is just a piece of paper that would not stop him killing his wife and that he would not go to gaol if he killed himself first. I do not accept that the father said to Mr ‘L’ that he had been misunderstood or that he tried to calm the situation. He was agitated and upset at the time and it was reasonable of Mr ‘L’ to interpret the father’s comments as a threat of harm to the mother;
d)In or around March 2014 the father caused Mr ‘L’ to worry for his own safety when approached by the father in a very angry manner involving the father repeatedly yelling at him;
e)I have no doubt that the version of events as described by Mr ‘L’ occurred as described. He made a note of relevant matters at the time and still had a clear recollection of his encounters with the father. It was reasonable for him to take the father’s statements on 24 October 2014 as a threat to harm or kill the mother and to report his concerns. The father showed no capacity to understand the impact of his behaviour on Mr L;
f)On 25 August 2016 the father refused to acknowledge ‘Ms O’ when she attempted to greet him and he reacted explosively and wailed loudly causing distress and anxiety to ‘Ms O’. I accept the evidence provided by Ms O. The fact that she no longer recalls specifically what she said to the father to cause him to react explosively and to keen, does not diminish her evidence because the father denied the reactions attributed to him. I reject his denial. I consider it more important that she recalls his reaction which I accept had a significant impact on her;
g)On 18 October 2016 the father sought to dominate a meeting with Mr Q and his practice manager by speaking loudly and over the top of Mr Q;
h)On 8 December 2016 the father said to Mr Q “I am sick of the fucking corruption … and this is fucking stupid” and later told him to “fuck off”;
i)I accept the evidence provided by Mr Q. The father’s behaviour as described is worthy of memory and it is understandable that Mr Q recalls it;
j)I accept the evidence from ‘Ms R’. As noted, the father did not really cavil with her description of his behaviour but merely says he was misunderstood. I reject his evidence.
k)The father has no insight into the impact of his behaviour on other people demonstrated in particular by the father’s own statement in court that he has done nothing wrong and does not need to change his behaviour;
l)The father has been afforded every opportunity to seek assistance to overcome what I find to be his belligerent and violent tendencies and has responded by blaming everyone but himself preferring to see himself as the victim.
During the father’s oral evidence he said that he had “more control these days” and that he had “grown up”. I did not see much evidence of that during the trial. Even during the most recent days of trial his behaviour was repeatedly disruptive and aggressive. He was unable or unwilling to regulate his behaviour even when it was made clear to him that his behaviour was unacceptable and not assisting his cause. He attempted to minimise his behaviour by saying it was just his way.
Conclusion as to whether the father presents an unacceptable risk of harm to the child
The combination of father’s violence to the mother; his aggressive behaviour to others and his inability to acknowledge the impact of his behaviour on others causes me to come to the conclusion that there is an unacceptable risk of harm to the child if the father were to spend unsupervised time with him.
Will supervision ameliorate the risk?
While the child has a right to spend time and be cared for by both parents I am not satisfied that spending time with the father at this time can occur in a safe environment.
Unfortunately, the father has demonstrated time and time again his inability to regulate his behaviour. Even though he may well have every reason to feel frustrated with ‘the system’ this does not excuse his behaviour which has caused experienced professionals to fear him and what he might do. I am referring here to Mr ‘L’, Mr Q, Dr K, ‘Ms O’ and ‘Ms R’.
As a result of his behaviour at two Contact Centres the father has been refused permission to attend at their establishments.
The child is not currently aware of his father and by all accounts is a happy, contented little boy. If the father were to spend time with the child, even in a supervised setting, (if somewhere appropriate could be found) I am not persuaded that the father would be able to control himself if some issue arose which caused him dismay. The child should not be exposed to that risk which I find to be unacceptable.
Accordingly I propose to dismiss the father’s application that he spend time with the child.
Other matters
If the father elected to address the matters I have raised in these reasons with a suitably qualified psychologist experienced in cognitive behaviour therapy or the like and could demonstrate that he had gained insight into the impact his behaviour has on others and has changed his behaviour, it may be possible for the child to have a relationship with the father in the future. Whether that occurs is up to the father. The mother demonstrated a preparedness to facilitate the child spending time with the father by consenting to an order in April 2016 which required the father to undertake counselling. Her preparedness at that time may augur well in the future should the father be able to address the matters I have identified.
The Independent Children’s Lawyer proposed a form of order which was supported by the mother and I propose to make an order largely in the terms sought. However, as I was not addressed on how the name of the child on the Family Law Watchlist could be lifted temporarily or why the mother would wish to travel to a non-Hague Convention country when the only suggestion of overseas travel was to a non-signatory country, I am not prepared to make that order. Further, as the mother will have sole parental responsibility and I was not addressed on why an order was necessary to enable her to be obtain a passport given the provisions of the Australian Passports Act 2005 (Cth) I do not propose to make the order sought in relation to that issue. The father made no submissions against the form of order proposed by the Independent Children’s Lawyer other than in relation to the spend time with provision and parental responsibility but he specifically sought the continuation of the Family Law Watchlist provision.
No submissions were made in support of the mother’s application for a personal safety restraining order against the father (despite a specific invitation to do so), nor was I taken to any recent evidence of any threat or conduct warranting a permanent injunction against the father. In particular, there is no evidence that the father has engaged in family violence since the expiry of the protection order in March 2016.
Property
Relevant legal principles
The High Court has often stressed that the discretion exercised pursuant to s79 is extraordinarily wide.[6] That said it must be exercised in accordance with legal principle.[7]
[6] De Winter & De Winter (1979) FLC 90-605; Norbis v Norbis (1986) FLC 91-712; Stanfordv Stanford (2012) 247 CLR 108.
[7] Ibid.
The starting point is to consider whether it is just and equitable to make an order at all, by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. Secondly, in exercising the discretion conferred by s79 it should be borne in mind that there is no presumption that the parties’ rights to or interests in property are or should be different from those that currently exist. Thirdly, the consideration of whether it is just and equitable to make an order should not be considered by reference only to the matters in s79(4).[8]
[8] Stanford (supra); Bevan & Bevan (2013) FLC 93-545.
The Full Court in Bevan observed that while the High Court did not disapprove of the ‘four step process’ neither did it approve of it. The Full Court noted:
71. Stanford will also serve as a reminder that the four step process “merely illuminates the path to the ultimate result”. Any future restatement of that process should incorporate acceptance of the fact that the power to make any order adjusting property interests is conditioned upon the court finding that it is just and equitable to make an order.
Is it just and equitable to make an order?
The property of the parties is largely agreed as set out below:
| Assets | |||
| Ownership | Description | Wife / de facto partner’s value | Husband / de facto partner’s value |
| Joint | Sale proceeds from S Street, Suburb T | $96,274.68 | $96,274.68 |
| Wife | Jewellery | $NIL | $6,000 |
| Wife | NAB Account …36 | $51.60 | $51.60 |
| Wife | 4WD | $NIL | $26,000 |
| Wife | Furniture | $NIL | $21,000 |
| Husband | Motor vehicle | $500 | $500 |
| Husband | ANZ Pensioner Advantage Account …18 | $23.14 | $23.14 |
| Husband | ANZ Progress Saver …02 | $0.57 | $0.57 |
| Husband | ANZ Online Saver …26 | $0.97 | $0.97 |
| Total Assets | $96,850.96 | $149,850.96 | |
| Liabilities | |||
| Husband | Westpac Personal Loan for 4WD | $1,206.64 | $1,206.64 |
| Husband | Westpac Mastercard | $1,302.45 | $1,302.45 |
| Husband | CBUS Processing Fee | $ NIL | $109 |
| Husband | Vodafone debt | $1,348.54 | $1,348.54 |
| Total Liabilities | $3,857.63 | $3,966.63 | |
| Net | $92,993.33 | $145,884.33 | |
| Superannuation | |||
| Husband | CBUS (Defined Benefit) | $58, 151 | $58,151 |
| Total Superannuation | $58, 151 | $58,151 | |
In relation to the assets about which there is dispute I note:
a)The father estimates the value of the wife’s jewellery at $6,000 and annexes to an affidavit various photographs of her wearing a number of items of jewellery. The father contends that he requested disclosure in relation to the jewellery in 2015 but did not receive a response. It seems no further steps were taken. The wife disputes the value of the jewellery and says that at most it would be worth about $500. There is no valuation of the jewellery.
b)The father estimates the value of the 4WD to be $26,000 and relies on a number of online estimates for cars of a similar type ranging in value from $15,100 to $26,000. The mother contends that she sold the vehicle for $12,000 and used the money for her living expenses and those of the children. There is no valuation for the car and no evidence of its sale or what became of the proceeds although given the mother is relying on Social Security it seems likely that she has had to use the funds to supplement her living expenses and those of the child in circumstances where she has received no financial assistance from the father.
c)The father estimates the value of the furniture at $21,000 and annexes to an affidavit a list of furniture with a dollar value said to be ‘price’ next to each item. The mother contends that the furniture was sold with the house or alternatively was moved from storage when she could not pay the storage fees. In any event the mother contends the second hand value of the furniture would have been no more than $2,000. There is no valuation of the furniture.
d)The CBUS processing fee is de minimis and I do not intend to comment further.
In the absence of evidence as to value I am unable to include the items about which there is dispute. I propose to take the mother’s concessions in relation to those items into account in a general way pursuant to s75 (2)(o).
In most cases when determining whether or not it is just and equitable to make an order a court will have regard to the following passage from Stanford & Stanford:[9]
42. In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to a make property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order…
[9] supra
In the current case the only significant assets comprise the net proceeds of sale of the former matrimonial home and the husband’s superannuation. The parties agree on the deduction of the liabilities. The remaining items are de minimus. The net assets are $150,568.05 including superannuation of $58,151.
I am satisfied that it is just and equitable to make an order.
Contributions
This was a short relationship. Each of the parties contends that they made the greater initial contribution. In the mother’s case she contends that while still in Iran her father gave to the father a sum of money which, when converted, was AU$30,000. The father denies he was provided any money by the mother’s father or any member of her family. No evidence was provided by the mother’s father nor any evidence of the money coming into Australia. In the father’s case he contends that he had savings of approximately $40,000 which he had built up over 13 years in the workforce. He gave particulars of his income and the savings that he made on a regular basis and of his limited outgoings. He failed to produce any document in corroboration of his claim that he had saved that sum. It is common ground that the parties purchased a home together and that there was a deposit of $40,000, but in the absence of any evidence to support either party’s contention I am unable to make a finding about their disputed initial contributions.
Neither party provided any evidence that their contributions during their short marriage were anything other than largely equal. Each made contributions, both financial and to the care of their son although it is more likely than not that the father’s financial contribution exceeded that of the mother’s and that the mother’s contribution to the home was greater than the father’s given that he was employed as a civil engineer and there were visa restrictions on the mother’s ability to work at least initially. I note that both parties accept the mother cooked sweets and sold her products.
In January 2013 the father contends that he received a redundancy payment of $18,574. He was not challenged about the receipt of that sum but no document was produced that would enable any finding to be made about how that sum was calculated. It was of course received four years after marriage.
At the time of separation the father contends that his superannuation was worth about $42,000 and that the increase post separation should be regarded as his contribution. However the father was made redundant in or about January 2013 and has not been employed since, apart from some casual work during the period September to December 2015. It cannot be argued therefore that his superannuation growth is related in any way to contributions by him since separation.
The father contends that his return to the workforce has been made more difficult because of the mother’s statements to his former boss and as a result of those statements he was unable to obtain a reference. I was not taken to any evidence to support the father’s contention nor was the mother cross-examined about it.
The father concedes that at the time of separation he withdrew $25,000 from a joint account and that the mother retained about $5000. He contends he used those funds for his own living expenses. It was not argued by the mother that this sum should be brought into account in any particular way.
I assess the parties’ contributions to be equal.
S 75(2) factors
The father is thirty-nine and the wife is thirty-two. Both parties are in good health.
Since separation the father and mother have each largely been reliant on social security. The father has retrained and is now working. The father contends his income is under $20,000. He receives an income of $650 to $700 per week for two to three days employment per week. While he recently completed a degree and is qualified to work in a related profession he is still studying and hoping to obtain a Master’s Degree. He has the capacity to earn more than the mother at least for the foreseeable future.
The mother is studying and has completed one and a half years of a four year degree. She is solely reliant on social security and does not receive child support.
The mother will continue to have the full time care of the child.
The wife had the use of the sale proceeds from the 4WD and retains her items of jewellery. The wife disposed of the furniture.
There is a small pool of property to be divided. I consider an adjustment in the mother’s favour is warranted and I assess an appropriate adjustment to be $25,000.
Conclusion about property
The wife submits that the greater proportion of her entitlement should be paid in cash. I am not persuaded that such an order is appropriate. I consider they should each share equitably in the current available cash and superannuation. Accordingly I will order that the father be responsible for payment of the debts from the money in trust and the balance paid so that the mother receives $12,500 more cash than the father and that the mother receive a superannuation split with a base amount of $35,325.50 ($12,500 more than the father).
Overall this will result in the father receiving cash of $39,958.52 (plus $3,857.63 from which he is to pay the debts) and superannuation of $22,825.50 and the mother receiving cash of $52,458.52 and superannuation of $35,325.50.
The percentage distribution affords the mother 58.3 per cent of the combined assets and superannuation and I consider a 16.6 per cent differential in her favour to be just and equitable.
I certify that the preceding one hundred and forty three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 4 August 2017.
Associate:
Date: 04 August 2017
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Jurisdiction
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Remedies
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Fiduciary Duty
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Costs
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