Kazemi & Demian
[2023] FedCFamC2F 217
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kazemi & Demian [2023] FedCFamC2F 217
File number(s): PAC 3865 of 2020 Judgment of: JUDGE MURDOCH Date of judgment: 6 March 2023 Catchwords: FAMILY LAW – PARENTING – Where the mother asserts a history of family violence including coercive and controlling behaviour by the father but no longer asserts that the child is at an unacceptable risk from spending time with the father – discharge of the Independent Children’s Lawyer where the issues have narrowed significantly- where the father was previously convicted of stalking/intimidation of a third party- finding that the father has perpetrated family violence upon the mother – where it is found that ameliorating the risks to the child arising from the father’s behaviour requires that the child’s time be limited and not include extensive block periods of time during holiday periods- orders made for child to spend three nights per fortnight with the father. Legislation: Crimes (sentencing procedure) Act 1999 (NSW) s10
Family Law Act (1975) (Cth) ss 4AB (1), 60B(4), 60CG, 60CC
Cases cited: B & K [2001] FamCA 880
Carter & Wilson [2023] FedCFamC1A 9
Dieter & Dieter [2007] FamCA 608
Illgen & Yike [2018] FamCA 17
Johnson & Page [2007] FamCA 1235
Line & Line (1997) FLC 92-729
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Ramzi & Moussa [2022] FedCFamC2F 1473
Zuen & Lhao [2020] FamCAFC 84
Division: Division 2 Family Law Number of paragraphs: 120 Date of hearing: 23-25 January 2023 Place: Parramatta Counsel for the Applicant Ms Otrebski Solicitor for the Applicant Censeo Legal Counsel for the Respondent Mr Givney Solicitor for the Respondent Maclarens Lawyers Independent Children’s Lawyer Ms Karagiannis ORDERS
PAC 3865 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KAZEMI
Applicant
AND: MR DEMIAN
Respondent
ANd: INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE murdoch
DATE OF ORDER:
6 March 2023
THE COURT ORDERS THAT:
1.X born in 2019 (“X”) spend time with the Father as follows:-
(a)commencing on 10 March 2023 from the conclusion of school (or 3:00 pm whichever is the later) Friday to the commencement of school (or 9:00 am whichever is earlier) the following Monday and each alternate weekend thereafter;
(b)from 3:00pm Friday (or the conclusion of school whichever is the later) to 9:00am Monday (or the commencement of school whichever is the earlier) on the weekend that Father’s Day falls;
(a)in odd numbered years on the last day of Ramadan from 9:00am until 1:00pm;
(b)in even numbered years on the last day of Ramadan from 1:00pm until 5:00pm;
(c)on 21 March each year, being Country B New Year, from 9:00am 21 March to 9:00am 22 March; and
(d)such further and/or other times as the parties may agree in writing.
2.Notwithstanding the above Orders X spend time with the mother each year:-
(a)From 3:00pm Friday (or the conclusion of school whichever is the later) to 9:00am Monday (or the commencement of school whichever is the earlier) on the weekend that Mother’s Day falls;
(b)in even numbered years on the last day of Ramadan from 9:00am until 1:00pm;
(c)in odd numbered years on the last day of Ramadan from 1:00pm until 5:00pm.
3.That all outstanding applications are otherwise dismissed.
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 Kazemi & Demian has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
This matter relates to the parenting arrangements for the child of the parties X, born in 2019 and currently 3 years and 8 months of age (“X”).
Pursuant to interim orders made by the court on a defended basis in August 2020 X has been spending six nights a fortnight with the father.
After extensive negotiations on the first day of the final hearing final orders were made by consent of all the parties including the Independent Children’s Lawyer providing broadly that:-
·the mother have sole parental responsibility;
·X live with the mother;
·the father on a without admissions basis attend for five sessions with a psychologist to address issues relating to family violence and respect of women;
·that changeover of X when not able to occur at his school be at the McDonald’s at C Street, Suburb D;
·the parties are to communicate about arrangements for X by email only or text message in the event of an emergency;
·the parties are to keep the other informed as to contact details and medical issues concerning X;
·each party is restrained from physically disciplining X and denigrating the other party;
·on a without admissions basis a personal protection order pursuant to section 68B of the Family Law Act1975 (Cth) (“the Act”) was made for the protection of the mother and restricting the behaviour of the father. Such personal protection order restrains the father from:-
·causing of threatening to cause bodily harm to the mother;
·harassing, molesting or stalking the mother; and
·entering or remaining within 20 metres of the mother’s place of work and 100 metres of her place of residence.
In circumstances where the issues for determination by the court are now:-
·whether X spends two nights or four nights a fortnight with the father;
·whether X spends time with the father for block periods of time during the school holidays and on special occasions; and
·whether the mother should be permitted to travel overseas with X.
with the consent of all parties the appointment of the Independent Children’s Lawyer was discharged on the first day of the hearing with the court’s appreciation.
BRIEF BACKGROUND
The mother is currently 32 years of age. The father is currently 37 years of age.
On 17 December 2007 the father was convicted of one charge of stalk/intimidate with intent to cause fear of physical/mental harm. He was placed on a good behaviour bond for a period of six months pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The parties were married by way of Islamic Marriage Ceremony in 2018. They commenced cohabitation in 2018.
The father asserts that the parties separated on a final basis in November of 2018 but lived separated under the same roof at times between November 2018 and June 2020.
X was born in 2019.
The mother asserts that the parties separated on 5 June 2020 when she left the former matrimonial home with X with an intention to reside with her parents at their home in Suburb E.
On 6 June 2020, at the request of the paternal grandfather, the mother and X commenced residing with the paternal grandparents at their home in Suburb F.
The mother continued to reside with the paternal family until 13 June 2020 when the mother asserts she was forcibly removed from the paternal grandfather’s home without X. The father’s evidence in relation to this event is that the mother willingly left X in the care of the paternal family. The mother asserts that the father would not allow her to see X from this time. The father asserts that during this time the mother did not seek to spend time with X.
On 30 July 2020 the mother filed an Initiating Application and affidavit seeking, amongst other things, urgent recovery orders that X be returned to her care and live with her.
The matter came before Judge Harman on 5 August 2020 and interim orders were made that X spend time with the mother from 9:00am Monday until 5:00pm Friday (extending to 6pm during daylight savings) each week and with the father from 5:00pm Friday (extending to 6pm during daylight savings) until 9:00am the following Monday each week. The father was to cause X to be delivered to the mother at her home at the commencement of X’s time with the mother and the mother was to deliver X to the father at his home at the commencement of X’s time with the father. No order was made as to the allocation of parental responsibility (“the interim parenting orders”).
Both parties have complied with the interim parenting orders.
On 19 August 2020, an Apprehended Domestic Violence Order was issued for the protection of the mother and restricting the behaviour of the father. This remained in force until December 2021.[1] Since December 2021 the parties have effected changeover of X between their respective households at the Suburb G Contact Centre (“the contact centre”).[2] It was the mother’s oral evidence that the maternal grandmother attends changeover with her on each occasion.
[1] Mother’s Affidavit, paragraph 219-222.
[2] Father’s Affidavit, paragraph 13.
THE PARTIES
The mother is 32 years of age and lives with her parents in Suburb H. She is employed on a part-time basis at Suburb J. The mother hopes to increase her hours of employment once X commences school. The mother hopes to live independently and find suitable accommodation for herself and X once her employment increases.
The father is 37 years of age and lives by himself in a rented apartment in Suburb K. His current lease will expire in late 2023. He is self-employed on a full time basis as a construction worker. I accept the father’s evidence that he manages a team of approximately eight people and his work hours on any given day can vary but give him the flexibility to be able to collect and return X to and from the mother’s care when required. It was the father’s oral evidence that he proposes to relocate to the Region L area but will not relocate to the mother’s residential suburb of Suburb H. This evidence was not challenged and I accept it.
X
The court child expert reports that X appears to be meeting developmental milestones and that neither parent identified concerns regarding his general development or progress. The mother’s evidence is that X is to commence formal schooling in 2024.
The mother describes X as a “bright, sweet and social child” and deposes that X is particularly close to his younger siblings, M and N.[3] She reported to the court child expert that X enjoys dancing, playing with Lego, cartoons and dancing with the maternal auntie. The father reported to the court child expert that X is very healthy, naughty and smart who enjoys the swimming pool, games and dancing.
[3] Mother’s Affidavit, paragraph 272-279.
THE FAMILY REPORT
A Family Report was prepared for the purposes of the final hearing by Ms O, a court child expert of some 10 years’ experience (“the court child expert”). She has tertiary qualifications including a Bachelor in Applied Psychology and a PG Diploma in Applied Psychology. The court child expert has had extensive experience in social care and child protection and has undertaken training in domestic violence informed practice. There was no challenge to her expertise and I am satisfied she is suitably qualified to provide her opinion to the Court.
The court child expert broadly recommended in the Family Report that:-
·The mother have sole parental responsibility for X.
·X live primarily with the mother.
·Arrangements for X to spend time with the father be subject to judicial determination regarding the veracity of the mother’s allegations that the father perpetrated family violence on the mother.
·In the event the court found the father perpetrated family violence on the mother it was recommended that orders be made providing protection to the mother and supporting her psychological well-being and thus consequently reducing the associated risks to X. This could include X spending no time with the father, or in the alternative that:-
·changeovers be attended by third persons;
·there be restraints on the father contacting the mother;
·there be a restraint on the father being made aware of the mother’s contact details and other personal information; and
·the father complete a recognised men’s behaviour change program.
·The court child expert recommended that X spend no time with the father if it was determined that the father perpetrated coercive controlling family violence and that X is accordingly at an unacceptable risk of harm.
·If it was determined that X is not at an unacceptable risk of harm in the father’s care the court child expert recommended that he spend time with the father from the conclusion of school on Friday to the commencement of school Monday morning and if practical, one mid-week occasion.
Prior to her oral evidence the court child expert was provided with a copy of the trial affidavit of each of the parties, the final orders made by consent and the relief now sought by each of the parties which significantly narrowed the issues for determination. Having read such additional material the court child expert opined by way of evidence in chief that she is concerned as to the negative impact additional mid-week time may have upon X in circumstances where it appears that there are no improvements in the parties’ parental relationship. Accordingly it was her expert opinion that in the event the court determined X was not at an unacceptable risk of harm in the father’s care that it would be in his best interests to spend alternative weekends with the father from the conclusion of school on Friday to the commencement of school on Monday and no mid-week time.
I found the court child expert’s oral evidence to be clear, thoughtful and reasoned. She was an impressive expert witness. The court child expert’s opinion was appropriately dependent upon the factual findings made by the court. I give significant weight to her report and oral evidence which is discussed in more detail later in these reasons.
THE LAW
I am required to make such parenting orders as the court considers proper. In deciding whether to make a particular parenting order I am to regard the best interests of X as the paramount consideration. Those best interests are ascertained by a consideration of the objects and principles in s60B and the primary and additional considerations in s 60CC of the Family Law Act (1975) (“the Act”).
The object of the Act is 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 children; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring 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.
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; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60B(4) notes that an additional object of Part VII of the Act is to give effect to the United Nations Convention on the Rights of The Child (“Convention on the Rights of the Child”). Article 19 of the Convention on the Rights of the Child requires parties to the Convention to take steps, including through “judicial involvement”, to:
…protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
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.
In reaching my decision I have considered all of the relevant sections of the Act. I am not required as a matter of law to specifically address each such consideration.
Whilst I have taken all of the evidence into account, it is not possible to refer to every aspect of such evidence.
THE PRIMARY CONSIDERATIONS
In this matter I am required to balance the benefit to X of having a meaningful relationship with both his parents and the need to protect him from physical or psychological harm from being subjected or exposed to family violence.
In balancing these considerations I am required to give greater weight to the need to protect X from harm.
Meaningful Relationship
A meaningful relationship is not measured simply by the amount of time that a child is spending with a parent, but the quality of the relationship between them.[4] I am not to assume that there is a benefit to X in having a meaningful relationship with the father but rather am required to ascertain whether a meaningful relationship with the father will be of positive benefit to him.[5]
[4] Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520.
[5] McCall & Clark (2009) FLC 93-405, 83,476 at [118]-[119]; [2009] FamCAFC 92
X is currently in a shared care arrangement. Both parties submit that their proposal will allow a continuation of a meaningful relationship between X and the father.
Family Violence
The mother advised at the commencement of the hearing that she no longer asserts that X is at an unacceptable risk in the father’s care arising from behaviour she asserts amounts to a pattern of a coercive and controlling dynamic and therefore no longer sought that X spend no time with the father. The mother however did not resile from her allegations that the father has engaged in a pattern of coercive and controlling behaviour with herself and historically with women in whom he had a romantic interest. She asserts that an amelioration of such risk requires X’s time with the father to be limited to two nights a fortnight with no additional time occurring during school holiday periods or on special occasions.
The father asserts that it is in X’s best interest that he continue to spend significant time with him. The father broadly disputed the mother’s allegations as to family violence throughout the course of the hearing but did not specifically address each allegation made by the mother.
Family violence is defined in s 4AB (1) of the Act as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Examples of behaviour that may constitute family violence include (but are not limited to):-
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
Such behaviour must still meet the definition as contained within s 4AB(1).
The terms “coerce” and “control” are not defined in the Act. Justice Gill analysed the terms “coerce and control” in Illgen & Yike [2018] FamCA 17 at [123]-[125] as follows:
123. Coerce is defined in the 7th Edition of the Macquarie Dictionary relevantly as
1. To restrain or constrain by force, law or authority; force or compel, as to do something. 2. to compel by forcible action
124. Control is defined in the 7th Edition of the Macquarie Dictionary relevantly as:
1. To exercise restraint or direction over; dominate; command
125. The phrase “coerces or controls” is expressed disjunctively. However it may be seen that the two concepts are closely related. Together they form an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command…
Judge Beckhouse in Ramzi & Moussa [2022] FedCFamC2F 1473 stated at [45] that:
Generally, coercive control is understood as a course of conduct aimed at dominating and controlling another person, including a family member.
In Carter & Wilson [2023] FedCFamC1A 9 Deputy Chief Justice McClelland and Justice Campton sitting as the Appellate Division stated at [10] that:
The assessment of whether conduct that falls within one of the provided examples constitutes family violence as defined in s 4AB(1) of the Act necessarily requires that conduct to be considered in the context in which it occurred.
Events of 2006 and 2007
In 2007 the father was charged with “stalk/intimidate with intention to cause fear physical/mental harm” between the dates of 2007 to 2007 and a second charge of “stalk/intimidate with intention to cause fear physical/mental harm” between the dates of 2007 to 2007.
The alleged incidents giving rise to these charges are not disclosed in the father’s affidavit, nor are they disclosed by the father to the court child expert.
A Police record dated 2007 and marked as exhibit M5 records broadly the following narrative:-
·The accused, who is the father in these proceedings, claims to be the ex-boyfriend of the victim. The victim strenuously denies there was any type of relationship between them but she had known the father for a period of approximately two years as he is a friend of one of the victim’s friends.
·In 2007 the father approached the victim at School P and asked her in their native Country B language to give him her phone number. When she declined the father stated “I’m going to follow you home and find out where you live. I’m going to tell your family that you dated me. I’m going to tell them I’ve been sexually active with you.” Upon hearing this the victim began crying.
·The father again stated “Well it’s either you go out on dates with me or I will tell your parents you dated me. If I find your house it will be every day.” He then left.
·The father attended the victim’s School P at least once a week for the following three weeks and would threaten to follow the victim home and tell her parents he was sexually active with the victim if she would not go out with him on each occasion. On one such occasion the victim had her vehicle keyring in her hand and the father asked her what type of car she drove.
·In 2007 the father again attended the School P and began asking the victim in a loud voice to go out for lunch with him. The victim declined and the father followed her to class saying: “If you’re not going to go out with me, not get to know me then I will follow you and find your house. I’m going to do this until I find your house.” The victim again began crying and the father said: “I will come a few more times. If we talk maybe you will agree with me and go out with me.” The father left upon one of the victim’s friends approaching saying: “I will see you tomorrow.”
·At approximately 10:30 am the next day the victim was made aware by class mates that the father was present in the college grounds. A short time later the victim saw the father walk past her class room and she ducked to avoid being seen. At approximately 11:30 am the victim saw the father drive past the campus in a Motor Vehicle 1. She told a teacher what had been happening and the teacher told her to tell the college director.
·At the time the victim was speaking with the college director in his office. The accused walked past whereupon the victim pointed out the father and the college director approached the father and had a conversation with him. The college director returned to his office and told the victim to go home. When the victim got to her car she noticed her ‘P’ plates were scrunched up on the ground and her right windscreen wiper was twisted out of shape. The father approached her and stated “So now you tell your teachers now. You dob [sic] on me. I’m going to kill you. Go get your brother. I want to talk to him” The victim ran back to where the college director was and told him what had happened. She was escorted to her vehicle by a teacher.
·Upon driving home the victim saw the father in his car waiting on the other side of the intersection of Q Street, Suburb R. She noticed the father following her in his motor vehicle and began making random turns to try and avoid the father following her. She contacted her teacher who advised her she would contact the police. A short time later the victim was contacted by the police who advised her to attend Suburb S Police Station.
·The police stopped the father a short time later in his vehicle and he was placed under arrest.
·The father participated in an electronically recorded interview where it is recorded by the Police that he:
Made admissions to attending the [School T] to talk to the victim. The accused also made admissions to threatening to follow the victim in order to find out where she lived. He also made admissions that he was aware the victim did not wish to have any contact with him but he continually initiated contact with her in the hope the victim would talk to him and tell him where she lived.
The father’s evidence on this incident during the course of cross examination was vague and inconsistent. He conceded that he was not enrolled in any courses at School at the time of these alleged incidents and was instead attending university. The father could not recall some of the details of the incident. Whilst on the one hand he denied all of the allegations he also he stated several times when the specifics of the incident were put to him: “I was young and stupid” and “I was young, I didn’t know the rules.” He conceded that he approached the woman a second time approximately three weeks later and that a teacher saw him. When asked if he was asserting that the woman lied when she made the report, the father answered: “She could be, I didn’t say that.”
The father’s evidence was uncertain as to whether he pleaded guilty or not guilty to the charges: “I didn’t talk to the judge….. I don’t remember anything, I did not even go into the court room.” In any event, the evidence was sufficient to establish a charge against him and in 2007 the father was convicted of one charge of stalking/intimidation and the second charge was withdrawn.
Whether the victim was a prior partner of the father’s or someone with whom the father had a romantic interest, I accept the court child expert’s evidence that such behaviour is a form of coercive and controlling violence.
In a separate unrelated alleged incident, a further Police record dated 2006 marked as exhibit M6 broadly records the following:-
·The alleged victim and the accused, being the father in these proceedings, previously attended the same church group two years previously during which time the father had asked the victim out on dates on numerous occasions. The victim declined the father’s advances.
·In 2006 the victim was working at Employer U in Suburb V. She was with her boyfriend when the father approached her and called her a “slut” and “trash” in Country B. The victim walked away from the father into the staff area and the father followed her. When the victim said “you’re not supposed to be here” the father responded “fucking shut up it’s none of your business.”
·The victim returned to her work area and the father was asked to leave by Employer U security.
·The victim did not wish the police to speak to the father as she felt it may make the situation worse. She did not want to attend court or make a statement due to cultural issues; she only wished for the police to make a report of the incident.
·No further action was taken by police.
The father was unable to recall this incident to a large extent. Again his evidence was vague and inconsistent. He could not remember approaching the victim at Employer U, Suburb V but then denied following her into her staff area. He could not recall whether he had told her to “fucking shut up, it’s none of your business” as “we are talking about 20 years ago” but he denied calling her names. When it was put to him that he was in his 20’s at the time, the father responded: “I was young, I did stupid things.”
This alleged incident was not in the father’s affidavit. He did not seek leave to give oral evidence as to his version of events. Whilst his denials in the witness box were unconvincing having regard to the inconsistent nature of his evidence, in the circumstances I am unable to make a positive finding that this event occurred as recorded in the police material in circumstances where neither the Police Officer nor the alleged victim were called to give evidence.
2 November 2020 Incident
Notes produced under subpoena from the W Contact Centre and marked as Exhibit M2 record that on 2 November 2020 X was a little upset when separating from his father. The manager explained to the father that X will get used to the process and commented that X was cute. The father winked and smiled and said: “Me or the child”. The manager replied: “The child” to which the father then commented: “Yes, he takes after his Daddy.” The manager records that they ignored the inappropriate comment and requested that the father take a seat.
The father’s answers to questions about this incident were are as follows:-
MS OTREBSKI: And you recall an incident where the manager said [X] is cute.
FATHER: Yes.
MS OTREBSKI: And you asked her – “me or the child” – and you winked and smiled.
FATHER: It’s a normal reaction.
MS OTREBSKI: Do you think you could have made the worker feel uncomfortable?
FATHER: Yes.
MS OTREBSKI: Do you think it’s inappropriate to do that and ask the question you did in front of [X]?
FATHER: There’s nothing wrong with it.
Physical Assaults and Verbal Abuse
Whilst the father makes a broad denial of the mother’s allegations of family violence to the court child expert “I know myself, I’m not an abusing or violence [sic] person” he did not address the issue of family violence in any way in his Affidavit. He did not seek leave to adduce oral evidence in response to the mother’s specific alleged incidents of family violence contained in her affidavit.
The mother was cross examined by the father for approximately one hour. The mother was not cross examined as to any of the specific instances of family violence contained within her affidavit nor was she cross examined as to her version of events from July 2020 to August 2020 when X was in the sole care of the father.
Thus the only specific denials in evidence by the father as to the mother’s detailed allegations arise from his cross examination by the mother and his reported denials to the court child expert.
Thus the mother was not tested or challenged by the father on her evidence that:-
·The father would call the mother derogatory names such as “useless”, “pathetic” “lazy” and that she was not “well-mannered.” He would tell her “You won’t amount to anything.”
·During arguments he would criticise the mother and her family and call them “dirty Arabs.” Once X was born he would often tell the mother she was not allowed to visit her family with him and would say: “I don’t want X to learn anything from your family. I don’t want him to be a dirty Arab.”
·At approximately 7:00 pm on 4 November 2019 during the course of an argument the father was yelling in Language AF at the mother. He picked up a tea canister and threw it against a wall and then continued to throw objects around the room including the television remote control and some artificial flowers. He was screaming: “You are pathetic. You are rubbish. You need to shut the fuck up and don’t talk.” The father was holding X in his arms and X began crying. The father said: “You either shut up or I am going to throw him against this aquarium right now.” He held X up and directed him towards the aquarium. The mother begged the father to give her X and he laid him down in the bassinet in the living room. Upon the mother running to the main bedroom the father followed her and physically assaulted the mother by hitting and kicking her.
·In late January/early February 2020 the mother and father had attended an employment agency in Suburb Y to assist the mother in obtaining work in hospitality. X was not with them but the mother’s brother, Mr Z was. The mother came out of the agency upset and advised the father that an inappropriate comment had been made to her. The mother deposes that the father began yelling at her in the van. The father was driving, her brother was sitting in the middle of the three seat van and she was sitting by the passenger window. Whilst continually yelling at one point the father leaned over to try and open the passenger door whilst trying to push the mother out of the vehicle. The father started punching her shoulder and shoving her out of the moving car. The mother had her seat belt on and started screaming. The mother’s brother was quiet at first and was pushing the father’s arm away. As the father kept trying to push the mother and open the door her brother yelled at the father to “Stop!” What are you doing?” The father began yelling at her brother and then parked the van and got out to smoke a cigarette whilst the mother’s brother consoled her.
·On 10 August 2020 the father verbally abused the mother’s brother, Mr AB at changeover. The father refused to hand X to Mr AB, screamed at both her and her brother and stated “if you don’t take X I will leave and take him with me.” The father swore at the maternal family words to the effect of “fuck you all” in Language AF and in the presence of X and the mother’s younger siblings.
It was not in dispute that some of the family violence detailed above occurred in the presence of X.
As stated above, it was only during the course of the father’s cross examination by the mother and the Independent Children’s Lawyer that the mother’s allegations of family violence were addressed by the father in any specific way. During the course of cross examination the father:-
·Denied that he threatened to kill the mother if she told anybody about his abuse towards her.
·Conceded that in February 2021 in the context of a discussion between a contact worker and the father about the father taking X to see a doctor because he had a bruise on his face the father told the worker that he would kill anybody that touches his son and that the contact worker told him that this was an inappropriate thing to say and it could have been seen as intimidating.
·Denied that he would often demean the mother and her family for being of Country AC-Arab heritage and stated “My beliefs and religion are Arab so how could I say that.”
The mother’s allegations as set out above are specific and detailed. The mother was not challenged in the witness box as to her allegations in any way by the father. The father did not provide any alternate version of the above events. I accept the mother’s evidence. I am satisfied that the father perpetrated family violence upon the mother as set out in paragraph 57 of these reasons.
Controlling Behaviour
The mother deposes that:-
·The father would often start arguments with the mother because he felt that she should be engaged in paid employment outside the home. He would say to her: “You need to give me money. Why should I look after you? What do you do? I need you to help me financially.”
·He would not provide any financial support to the mother requiring her to be solely reliant upon the government assistance she received by way of Centrelink payments. The father unilaterally used the mother’s funds to purchase equipment and tools for his painting business causing her financial hardship.
·The father refused to provide assistance to the mother in caring for X and made comments using words to the effect of “Caring for X is the woman’s job. I can’t help you.”
·The father made it difficult for the mother to see her family and she had no friends; causing her to feel very isolated and alone. The father would say to her: “Why do you want to go out? If you are bored get a job. If you don’t want to work, then stay home and clean the house. There is no need for you to go anywhere.”
·In 2020 the mother requested that the parties arrange a celebration for X’s first birthday, being a photoshoot. The father initially forbade the maternal grandmother from attending and stated “Your mother is not welcome in my house anymore. This is my house. I decide who comes and who doesn’t. She is not allowed to come to X’s birthday.” The father eventually allowed the maternal grandmother to attend but said that he did not want X to interact with the maternal family because he did not want them to “rub off our Arab onto him.”
·The father limited the mother’s social interactions with her family and her general ability to move freely by failing to give the mother access to a motor vehicle despite promising her that he would purchase one for her.
The father does not address these allegations in any way in his affidavit. He did not challenge the mother’s evidence in any way in cross examination. The mother’s evidence is credible and I accept it. I am satisfied that the father engaged in the above coercive and controlling behaviours during the course of the parties’ relationship.
Undermining of the Mother
The mother asserts that the father has attempted to directly and indirectly undermine her parenting throughout the parties’ relationship and post-separation. The father was cross examined as to several specific incidents the mother relies upon to ground this assertion.
On 6 August 2020, one day after the interim parenting orders were made, the mother asserts she began receiving “insistent” messages from the father. The first message read “X drinks a lot of water, X drinks this milk, when you change X’s nappy make sure you wash him and use cream.”[6] The father was cross-examined as to the text messages he sent to the mother during this period and stated “I just believed as a father it’s my role to let the mother know what X likes, drinks and wears… I thought it was my role to say that.” He accepts that the mother knows what X eats, drinks and likes but that X had not been in her care for two months and “lots” had changed during that time.
[6] Mother’s Affidavit, paragraph 194.
The father denies the mother’s assertions that X was upset after returning to her care after spending time with the father and reported to the mother that “Daddy said Mummy doesn’t like you.” He further denied ever telling X to call the Police on the mother. The father was firm in his denial of this allegation saying: “It’s a disgusting word to say that to a three year old kid.” The father readily conceded that saying something like that to a child would be damaging to them.
The father conceded that in early 2021 he was offered sorbolene cream by the contact centre worker that had been provided by the mother but he refused to take it as “ I could have possibly had one at home….We have two of each of most things.”
The father was cross-examined as to the recording by a staff member at the contact centre at changeover on 15 January 2021 when X’s water bottle was provided to the father by the staff member and he said “I don’t want it, just chuck it.” The father did not recall saying these words. It was put to the father that it was not until the supervisor told the father that X might want a drink of water on his way home that he took the bottle after all. The father’s response was “I didn’t say that. It could’ve happened, but I don’t know.”
The father was cross-examined as to an incident where he was handed X’s jacket at changeover which had been provided by the mother. The father was observed to throw X’s jacket on the fence of the contact centre and left it there. The father did not deny this incident in cross-examination but stated “the stories are different.” He said in re-examination that when he collected X he was unhappy to have his jacket on, he placed him in the backseat of the car, then went back and got the jacket and put it in the back seat of the car.
I accept the submissions made by the father that there is no real context or details as to these incidents. The contact centre worker did not give evidence. The father provided a plausible explanation with respect to the both the jacket and the rejection of the water bottle. I am not satisfied that I can safely draw an inference from the above incidents that the father was attempting to undermine the mother.
On 29 January 2021 the mother provided a bag of clothes to the contact centre worker to be returned to the father. The father concedes that he did not want the clothes to be returned and told the contact centre worker that the mother’s actions in this regard were disrespectful. He conceded that X could have been present when he said this and explained during the course of cross examination that he felt it was disrespectful as he had purchased those items for X to keep and thus they belong to X. Whilst it was unfortunate that this was possibly said in the presence of X, I do not accept that the father was attempting to undermine the mother in this instance. It is more likely that the father himself may have felt the mother was undermining his role by attempting to return items he had purchased for X’s use.
Repeated allegations against the Maternal Family
The father has made several reports to the Department of Communities and Justice and the Police in relation to the maternal family.
The father stated to the court child expert that the maternal grandfather has perpetrated control against the mother and the extended maternal family and physically abused the maternal grandmother. He identified to the court child expert his ongoing concerns regarding the number of people the mother lives with and his concerns regarding the maternal grandfather physically abusing X. He identified that he had previously observed a number of injuries to X, including bruising on his body and “redness” to his nose and reported that the mother told him that the maternal grandfather slapped X on the hands or legs when he had done something wrong. The father reported one injury; being bruising that appeared to be in the shape of four fingers to the Department of Communities and Justice and the Police but no further action was taken.
During the course of cross-examination the father was taken to specific reports made to either the Police or Department of Communities and Justice with respect to the maternal family. It was established that:
·On 14 August 2020 the father made a report to the police that the maternal grandfather had perpetrated a physical assault against X. The police subsequently attended the home of the maternal grandparents on 15 August 2020 and the maternal grandfather denied any allegation of violence “to the strongest levels”. When it was suggested to the father that he had made a complaint to the Police on 14 August 2020 in the hopes of getting the maternal family in trouble, his response was “the only reason I reported was for X’s safety.”
·On 19 August 2020 the father made a further report to the Department of Communities and Justice alleging that the maternal grandfather physically assaulted X resulting in bruising and redness. The father accepted he did make this report on 19 August 2020, but could not recall whether he did so after he was served with the interim Apprehended Domestic Violence Order.
·On 21 September 2020 the father made a report to the Department of Communities and Justice that the maternal grandfather physically assaulted the mother’s sister because she refused to wear a headscarf.
·On 30 September 2020 the father made a report to Police that the mother’s brother Mr AB attended changeover where a verbal argument ensued and Mr AB kicked the father in the back. The father conceded that prior to making this Police report, he attended Suburb AD Local Court and requested that an Apprehended Violence Order be put in place as against Mr AB. Counsel for the mother provided the father with the police record which stated the father had told the Police he wanted to report Mr AB to “get an AVO and use it against him in family law proceedings.” The father conceded that is what the police record stated, but denied saying that to the police.
·On 2 October 2020 the father made a further complaint to the Police against Mr AB that he took off his belt and whipped the father on the back. The father was reported to have shown the police a 20cm long red mark on his back. As a result of this report the mother’s brother was arrested and conveyed to the Police Station. During his interview the mother’s brother reported to the police that his sister (the mother) had recorded the whole exchange between himself and the father. The police narrative forming part of Exhibit M11 states:
Police attended the address and obtained a statement from the witness [being the mother] and the recording she had taken. The footage covers the whole incident and does not show any adverse confrontation between parties. Police are of the belief that the injury to the victims back may be self-inflicted given the shape and direction of the red mark. Police released the POI without charge and uploaded the aforementioned evidence.
The father denied that he had inflicted any injuries upon himself in order to make an allegation of violence as against Mr AB.
·On 11 October 2020 the father attended Suburb Y police station. The Police questioned the father in relation to the incidents on both 30 September 2020 and 2 October 2020. The police records forming part of Exhibit M11 states:
Police further questioned the VIC to which he states he had two videos that show the POI assault him. Police viewed the footage sighting no physical assaults and just a lot of back and forth arguing from both the VIC and the POI. The VIC further enquired about an AVO to be taken out against the POI to which police informed him that no AVO will be taken out…
Due to the conflicting nature of the VIC’s version of events and constantly wanting an AVO against the POI, police are of the belief that the VIC is making vexatious reports and wanting police to apply for an AVO with no grounds for an application.
The father denied in cross examination that he made the above reports to the Department of Communities and Justice and the Police to intimidate the mother. He denied that the allegations were false. He denied telling the Police that he wanted to obtain an Apprehended Domestic Violence Order to use in these proceedings. The father further denied hitting himself so as to support his allegation of violence against the mother’s brother.
Despite the allegations made by the father against the maternal mother’s family, he does not seek any orders that may ameliorate the risks that would arise from X coming into contact with them in the future. Whilst this raises concerns that the father has been not been bona fide in making such allegations I cannot safely find on the evidence that the father’s reports to the Department of Communities and Justice and the Police were knowingly false. It would have assisted if the relevant Police Officer was called by the mother to give evidence. I do find that the serious allegations made by each of the parties is indicative of a complete lack of trust between them.
Refusal to Grant an Islamic Divorce
The mother’s evidence is that she has sought an Islamic Divorce from the husband via both family members and religious leaders within the community. The mother was advised by two religious leaders that the father would have to agree to provide her with a divorce. Both religious leaders later informed the mother that the father had threatened them on the phone and stated that he would only provide the mother with an Islamic Divorce should she discontinue these proceedings and give up “parental responsibility and access to X.”[7]
[7] Mother’s Affidavit, paragraph 321-328.
The father denies that he refused to agree to an Islamic divorce and instead, his written evidence is that both religious leaders had advised him that they did not “wish to be involved” in their family situation until these proceedings had been finalised.
The comments made by the father to the court child expert differ from those in his written evidence. The father’s explanation to the court child expert was that the religious leader would not continue seeing the parties jointly due to the family violence order against him, and that he did not receive subsequent communications from the religious leader with respect to the Islamic Divorce.[8]
[8] Family Report, paragraph 40.
The impediment to the parties obtaining an Islamic divorce was somehow resolved during the course of the final hearing and the court was advised that the parties had obtained a religious divorce overnight.
I am unable to make a finding having regard to the contested nature of the evidence about this issue. If it were the situation that the father was attempting to use his ability to refuse to grant the mother a religious divorce as a bargaining tool or as leverage in these proceedings that is clearly a form of coercive and controlling behaviour.
Other Risk Issues
The relationship between the parties and nature of communication
The court child expert clearly is of the opinion that X is at risk because of the poor communication between the parties. She opines:
There appears to be little trust between the parties, ongoing communication difficulties, and each parent presented as having little motivation to make accommodations and changes to improve the co-parenting relationship. It is, however, noted that [Mr Demian] having perpetrated family violence against [Ms Kazemi] is likely to be a mitigating factor in her apparent reluctance to communicate, and co-parent, with him.
I am satisfied and find having regard to the reasons above that the parties have significant trust issues. I am further satisfied that they have poor communication.
THE ADDITIONAL CONSIDERATIONS
Any views expressed by X
There is no independent evidence of X’s views and in any event he is too young for his views to carry any weight with the court.
The nature of X’s relationship with the parents and other significant persons
A considerable amount of time was spent in cross examination as to how X is moving between each of the households at changeover. The mother and maternal grandmother reported to the court child expert that X generally becomes upset on the way to spend time with the father. The maternal grandmother’s evidence was that this occurred “75% of the time.” The W Contact Service notes record that for the most part there has been no issues with X transitioning between the parties; save for two occasions. In any event, it is conceded by the mother that on the proposal of both parties, during school terms X would move between the parties on two occasions each fortnight.
There is no dispute that X has an established relationship with each of the parties. The court child expert gave oral evidence that her recommendations are based on the relationship of the parties – not the child’s relationship with the parents.
I find that X has an established, positive relationship with each of the parties.
The capacity of each parent to provide for X’s needs, including emotional and intellectual needs and the attitude to X and responsibilities of parenthood demonstrated by the parents
The court child expert was of the opinion that there was no evidence to indicate that X’s needs are not being met in either of the parties care. I accept this and so find.
The court child expert did opine however that each of the parties appeared at times to be self-focused. She conceded during the course of cross examination that the mother’s presentation as being self-focused could be a symptom of the mother’s experience. The mother was observed however to consistently engage with X in a sensitive and child focused manner and her interview with the court child expert suggested that she has a sensitive and child focused parenting approach.
The court child expert observed that the father referred to himself and X jointly, causing her concerns as to the father’s ability to differentiate X’s needs from his own and then to prioritise X’s needs above his own. This is grounded from her observation of the father repeatedly seeking affection from X not sought by him and whilst he was engaged in other activities. The court child expert was concerned that the father attributed apparent sleep disturbances of X to factors within the mother’s household as this may be an indicator that in the future the father will attribute any difficulties experienced by X to factors relating to the mother thus reducing his capacity to respond appropriately. This additionally increases the possibility of parental conflict and thus X’s exposure to it:
Parental conflict that directly relates to a child is known to be associated with increased incidence of adverse outcomes, including poor mental health outcomes, for a child exposed to such conflict.[9]
[9] Family Report, paragraph 72.
In her oral evidence the court child expert opined that this would be concerning only if it is ongoing and indicative of the general parenting by X of the father. She was clear that if it was ongoing and indicative then she would be concerned with X was spending four nights a fortnight with the father as he proposed. She conceded quite clearly and appropriately that it cannot be assumed however that this is how the father parents X. I cannot safely make a finding that the short observation of the father and X was indicative of how the father parents X generally.
The extent to which each of X’s parents has fulfilled, or failed to fulfil, the parent's obligations to maintain X
The father does not pay child support to the mother. The mother has not made an application for financial support for X from the father and deposes that she provides solely for X with the assistance of her parents as and if required. The father was not cross-examined as to this issue.
The likely effect of any changes
The court child expert opined that the level of extreme distress X exhibited when separated from familiar adults during the course of her observation appeared atypical and may suggest that the current parenting arrangements are not adequately meeting his needs and are therefore having a detrimental impact on him. This could have negative implications for X as he grows. The court child expert opined that given the poor parenting relationship and lack of effective communication between the parties it could not be recommended that the current arrangements continue.
Neither of the parties are proposing that the current parenting arrangements continue. Both of the parties’ proposals represent a significant change to X’s care arrangements that have been in place since August 2020.
The court child expert opined now that X is over three years old he will be able to tolerate longer times without his father and still maintain a beneficial relationship. This was not challenged and I accept that this is so.
The practical difficulty and expense of X spending time with the Father
The parties agree there is approximately 30 km between their respective homes. The court child expert opines that that equates to approximately 40 minutes driving time. The father’s evidence in this regard was contradictory. He agreed with counsel for the mother during the course of cross examination that it could take up to one hour and 20 minutes in traffic to deliver X to the mother.
I was not satisfied in circumstances where the father had some difficulty understanding some of the language used by counsel that he necessarily understood the proposition to which he was agreeing. I therefore asked the father more specific questions as to his travel time of a Monday morning when he has delivered X back to the mother in the past. It was the father’s evidence that during the period of time that he was driving X to be back at the mother’s home by 9:00am on Monday mornings that the shortest time it took was 25 minutes and the longest was 30 minutes. His evidence was that X normally wakes up at around 7:00am to 7:30am and he is always awake before the father. The father and X would leave the father’s home between 8:20am and 8:30am on a Monday morning in order to be at Suburb H by 9:00am. The father gave this evidence without hesitation and I accept it. He was firm in his evidence that in any event he proposed to relocate to be closer to X’s school.
I accept and find that there is no practical difficulty in X spending regular time with the father.
The maturity, sex, lifestyle and background including lifestyle, culture and traditions of X and the parties
The father is of Country AE Muslim heritage. The mother is of Country AC Muslim heritage. The mother does not consent to the father’s proposal that X spend time with each of the parties on the last day of Ramadan each year and with the father on Country B New Year. The mother did not consent to this occurring. Her answers to this issue in cross examination reflect poorly on the mother: -
MR GIVNEY: Is there a reason as to why you wouldn’t want [X] to see his father on father’s day?
MOTHER: No.
MR GIVNEY: Would you like to see your son on mother’s day?
MOTHER: Of course I would love to.
MR GIVNEY: You would be significantly distressed if that didn’t happen, wouldn’t you?
MOTHER: It will be.
MR GIVNEY: It would be very hurtful for you?
MOTHER: It did hurt me before.
MR GIVNEY: And you wouldn’t want to go through that hurt again would you.
MOTHER: Yes.
MR GIVNEY: Is there any reason why you shouldn’t share the festival of Eid at the end of Ramadan?
MOTHER: No – I don’t have any answer to this.
I accept the court child expert’s opinion that in the event the court found that X was not at an unacceptable risk of harm in the father’s care then he would likely benefit in spending time with the father on special occasions. The court child expert opined that the question will be the practicalities of special occasion time in light of the high conflictual nature of the parties’ relationship and whether such special occasion time could occur for example on an overnight basis.
Any other relevant fact or circumstance
The mother reported to the court child expert that she does not feel safe and is always scared and in fear as a result of the perpetration of family violence occasioned upon her by the father. She told the court child expert that she is scared to live independently as a result of the threats made by the father to “come and murder me” or take X away from her “because he did [previously]”.
The court child expert opined that the mother’s account of her psychological well-being is highly suggestive that direct contact with the father is triggering of anxiety symptoms for her:
It is, therefore, likely that [Ms Kazemi] having ongoing contact with [Mr Demian] regarding [X], including a changeovers, for the purposes of exercising shared parental responsibility, or jointly attending events/appointments relating to [X], would have a detrimental impact on [Ms Kazemi’s] psychological well-being, including increasing the risk of exacerbating trauma symptoms….. Any decrease in [Ms Kazemi’s] psychological functioning poses a risk that there will be a consequent detrimental impact on her capacity to identify and meet [their] [X]’s needs, including basic needs…. This can have detrimental impacts on a child’s development and wellbeing and can result in a child forming a view of the world is unsafe and people in it is unreliable.[10]
[10] Family Report, paragraph 78.
The court child expert was not challenged on this opinion and I accept it.
DISCUSSION AND DETERMINATION
The father submitted that:-
·The mother herself must see a benefit to X in maintaining a relationship with the father.
·Solace can be taken that the father has conceded that the mother will have sole parental responsibility for X, that there will be a significant reduction in the time that X spends with him and that he will undertake sessions with a psychologist.
·X has for the most part transitioned easily between the two parties since August 2020 which is a credit to both parties.
·Notwithstanding the father denies the allegations of family violence he has properly addressed such allegations by conceding to an order for sole parental responsibility and a significant reduction in time.
·There is no context to the incidents at the contact centre raised by the mother and the contact centre worker did not give evidence. There is a break in the pattern of alleged behaviour of the father from 2006 and 2007 of some 17 years. The father has been dealing with female contact centre workers for the past two years and there is no indication that there has been any disrespectful behaviour.
·There is no evidence to support the assertion that the father’s allegations to the Police and the Department of Communities and Justice were malicious.
·X spending four nights a fortnight with the father will allow the father to experience and be involved in the school community which cannot occur if his time was to cease on a Sunday evening.
·There are no risk factors that have been identified and upon that basis the Independent Children’s Lawyer withdrew from the proceedings.
The mother submitted that:-
·She no longer asserts that X is at an unacceptable risk in the father’s care.
·She is committed to X maintaining a relationship with the father but there is clear evidence that such relationship still poses risks to X which must be assessed and a balance struck between the relationship and the potential risks of harm to X. Her proposal of X spending two nights a fortnight with the father and no block periods of time during school holidays does not eliminate the risks she alleges but sufficiently ameliorates them.
·The coercive and controlling dynamic of the father’s behaviour is linked with his attitude to parenthood and parenting capacity. There is thread to the father’s conduct and how he conducts himself with women. The incidents arising from 2006 and 2007 have concerning parallels with the way in which the father has engaged with the mother. Any “break” in the allegations against the father as to his conduct does not diminish the allegations of the mother.
·The court would be concerned as to false allegations made by the father to the Police and the Department of Communities and Justice and shows the extent to which the father will go to achieve his own means including whipping himself on the back.
·The court would further be concerned that the father has been subtly undermining the mother and dismissive of her parenting capacity.
·The father is unable to sense what inappropriate behaviour is and what it is not.
·Thus limiting the time X is able to be influenced by the father and his attitudes is in his best interests.
The Full Court has drawn a distinction between the fact finding exercise to determine risk and the risk assessment process. The assessment of risk requires the consideration of two elements: the consideration of whether it is likely that some harmful event will occur and then a consideration of the severity of the impact caused by such harmful event: Dieter & Dieter [2007] FamCA 608. I must assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable: M & M (1988) FLC 91-979; [1988] HCA 68. The assessment of unacceptable risk is thus a predictive exercise, postulated from known facts and present circumstances. It is not required to be proven on the balance of probabilities: Isles & Nelissen [2022] FedCFamC1A 97. The Court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which are proved to that standard: See Johnson & Page (2007) FLC 93-344. The concept of “unacceptable risk” falls within the broader issue of determining what is in the child’s best interests and to which the resolution of the existence of an “unacceptable risk” is subservient: see M & M (1988) FLC 91-979; [1988] HCA 68 and B & B (1993) FLC 92-357.
I have made findings as set out above that the father has perpetrated family violence upon the mother, both of a physical and coercive and controlling nature. The consideration and determination of risks arising from each of the parties’ proposals will need to be evaluated in part by reference to these findings.
In matters concerning the welfare of a child, family violence and the effect of exposure to family violence must be considered and given weight: Zuen & Lhao [2020] FamCAFC 84 citing B & K [2001] FamCA 880. The court child expert’s evidence as to the effect of family violence generally is as follows:
Exposure to family violence, including witnessing and – or hearing incidents of family violence or being cared for by a victim – parent whose parent is impaired as a consequence of the perpetrators choices and actions, is known to have a detrimental impact on children. Exposure to family violence can be experienced as traumatic by children, irrespective of the age at which the exposure occurs, which can contribute to arrange a psycho social and mashed relational difficulties, including adding increased risk of emotional and behavioural disturbance for a child or a child engaging in interpersonal relationships that feature family violence.
There are also risks to a child having ongoing time with a perpetrator specifically of coercive and controlling behaviour. Whilst the father’s criminal conviction is of a historical nature, the court child expert was of the view that the father not abiding by personal boundaries or prioritising his needs is relevant even if such events occurred in 2006 and 2007 and that such behaviour places X at some risk if the father were to form a further relationship in the future. She opined:
There are particular risks to a child associated with ongoing contact with a perpetrator of coercive and controlling family violence, in addition to the ongoing risk that [X] will be exposed to family violence perpetrated against the other parent or a perpetrator’s future partner. These risks can continue post separation and include the risk of the perpetrating parent undermining other parent’s role as a parent and their relationship with [X]… Increased risk of psychological abuse and manipulation of [X] by the perpetrating parent, and parenting deficits for a perpetrating parent.[11]
[11] Family Report, paragraph 75.
In light of the nature of the behaviour giving rise to his criminal conviction, the father’s inability to understand the inappropriate nature of his conduct with the contact centre worker is concerning. He felt that there was nothing wrong with his behaviour even though he conceded that it could have made the contact centre worker feel uncomfortable. It appears that the father places his own needs above others. It is concerning that he felt that winking and asking a contact centre worker effectively whether she thought he was cute is a normal reaction. Whilst I was unable to make a positive finding with respect to the earlier allegation made as to the father’s conduct at the shopping centre at Suburb V, there is a consistent nature in the manner of complaints made as to the father’s conduct. It appears that the father either does not appreciate or perhaps is not concerned as to personal boundaries or perhaps holds misogynistic views. The father consenting to an order that he attend six sessions with a psychologist with respect to his views as to women will hopefully assist him in this regard as the court child expert opines that:
If there is veracity to [Ms Kazemi’s] account that [Mr Demian] holds misogynistic and oppressive views regarding gender roles, significant concerns would be raised regarding his capacity to co- parent……, Specifically that [X] will be exposed to such views and that this will contribute to a morale developing similar skewed schemas regarding social relationships. This is highly likely to have a detrimental impact on [X]’s own relationships….[12]
[12] Family Report, paragraph 76.
I am satisfied having regard to the findings and issues raised above that there is a risk that X will be exposed to family violence including the perpetration of coercive and controlling conduct in the father’s care. I am further satisfied that X is at risk of being exposed to both inappropriate conduct and views held by the father.
In cross examination the court child expert accepted that one way of limiting coercive and controlling behaviour is to limit the time X spends in the father’s care. “It could be limited but he would still be exposed to it…..the less time with the perpetrator parent the less opportunity.”
I am satisfied, weighing the competing considerations of the benefits to X of continuing a meaningful relationship with the father and the need to protect him from the harm of witnessing the conflictual nature of the parties’ relationship that the time he spends with the father should ensure, as much as possible, that the parties do not come into contact with each other. Thus it is in X’s best interests that X move between the parties’ households via his preschool or school when possible. Thus weekend time should commence at the conclusion of day-care or school on a Friday and conclude by the father returning X to school rather than on a Sunday evening as proposed by the mother. Balancing the competing considerations and placing significant weight on the court child expert’s recommendations, I am satisfied that X spending three nights a fortnight with the father will enable him to continue a meaningful relationship with the father whilst limiting the exposure to him of the father’s inappropriate conduct and views and is thus in his best interests. Having collection and drop off occurring at X’s school will allow X the benefit of the father being proactively engaged in his school life.
Neither party seeks that X spend mid-week time with the father and I am satisfied that the potential negative impact on the parties’ relationship and the potential harm this may cause to X weighs against any mid-week time being in his best interests.
In circumstances where the court child expert did not proactively recommend holiday time and the mother is opposed to it in its entirety, I am satisfied that limiting the time X spends with the father to regular weekend time only sufficiently ameliorates the potential risks of harm to X in spending more extensive block periods of time with the father for the reasons outline above. Thus I will make orders as proposed by the mother that X’s weekend time with the father will continue throughout the entire year, including holiday periods.
The father seeks that X spend time with him on three occasions of special significance. The mother was unable to give any reason as to why X would not benefit from seeing the father on these days. The court child expert opined that if the court was satisfied that X was not at an unacceptable risk of harm then spending time with the father on special occasions is of likely benefit to X. Weighing up the importance of the father’s cultural heritage I am satisfied orders should be made as sought by the father. Whilst not specifically sought by the mother, the father seeks that X spend time with the mother on Mother’s Day and for a period of time on Eid and I am satisfied having regard to the mother’s evidence that this is in X’s best interests and will so order.
The issue of overseas travel requires me to assess the degree of risk, if any, of X not being returned to Australia by the mother and a consideration of the appropriateness of requiring any security for X’s return: see Line & Line (1997) FLC 92-729. I am required to consider: -
·The existence or otherwise of continuing ties between the departing parent and Australia;
·The existence and strength of possible motives not to return;
·The existence and strength of possible motives to remain in the other nominated country; and
·Whether the country of travel is a signatory to the Hague Convention and
·Other section 60CC considerations as are relevant.
The mother proposes that there be unlimited ability to travel overseas with X as long as notification is given and that it is no longer than a certain period of time. There is no evidence before the court as to the existence and strength of possible motives not to return. In those circumstances I cannot be satisfied that there is sufficient evidence to ground the orders sought by the mother for overseas travel and I decline to make such an order.
This does not in any way preclude the parties in the future agreeing for overseas travel to occur and submitting terms of settlement to the court or an application being made by either of the parties together with satisfactory evidence to enable a determination to be made.
CONCLUSION
I have made findings that the father has perpetrated family violence upon the mother including engaging in coercive and controlling behaviour. The father’s behaviour and interactions with women raises risks that X will be exposed to such inappropriate views and conduct. I accept that balancing the benefit to X of continuing a meaningful relationship with the father and the potential risks of harm arising from this relationship requires that X spend regular short periods of time with the father rather than extended block periods of time.
I make Orders accordingly.
I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch . Associate:
Dated: 6 March 2023
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