KAZI and KAZI
[2018] FCWA 61
•13 APRIL 2018
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: KAZI and KAZI [2018] FCWA 61
CORAM: DUNCANSON J
HEARD: 9, 10, 11, 12, 13 OCTOBER 2017
DELIVERED : 13 APRIL 2018
FILE NO/S: PTW 4048 of 2014
BETWEEN: MS KAZI
Applicant
AND
MR KAZI
Respondent
Catchwords:
CHILDREN - Family violence and its impact upon the mother and children - Where the children do not wish to spend time or communicate with the father - Where it would be harmful to them to do so - Children to live with mother and she have sole parental responsibility for them - Where the father is ordered to undertake a psychological assessment - Orders for limited communication with the children subject to conditions
Legislation:
Family Law Act 1975 (Cth) s 60B, s 60CA, s 60CC, s 61DA
Category: Reportable
Representation:
Counsel:
| Applicant | : | Mr M Nichols QC |
| Respondent | : | Self-Represented Litigant |
| Independent Children's Lawyer | : | Ms R Reader |
Solicitors:
| Applicant | : | Legal Aid WA |
| Respondent | : | Self-Represented Litigant |
| Independent Children's Lawyer | : | Reader Lawyers & Mediators |
Case(s) referred to in decision(s):
Sedgley v Sedgley (1995) FLC 92-623
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
INTRODUCTION
1[Mr Kazi], the father and [Ms Kazi] the mother have four children, [Child A], [Child B], [Child C] and [Child D] aged 16, 14, 11 and eight years respectively. Since mid-2014 the children have lived with the mother in Perth. Prior to that the family lived in [Country A] where the father resides.
2The mother proposes that the children continue to live with her in Australia and spend no time and have no communication with the father.
3Her position is that the children wish to have no contact with the father by reason of the physical and psychological harm perpetrated by him upon her and the children.
4The father proposes that the children spend time with him, including in Country A.
5His position is that he is a loving and caring parent and that the mother has influenced the children and their views.
6The children's treating therapists report that the children are suffering the effects of Post-Traumatic Stress Disorder and do not wish to spend time or communicate with the father.
7The father wants to reintroduce himself to the children through group supervised counselling and he is confident that if he has an opportunity to see the children he would be able to demonstrate that they have a loving relationship with him.
8In determining the best interests of the children a significant issue for determination is whether attempts should be made to reunite the children with the father or whether such a course of action may be harmful to them, having regard to the strength of their views.
BACKGROUND AND BRIEF HISTORY
9The mother was born in Australia [in] 1971. She is 46 years of age. The father was born in Country A [in] 1973. He is 44 years of age.
10The parties commenced cohabitation in Country A in 2001. They married there [in] 2002 and the children were born there. The children are Child A born [in] 2001, Child B born [in] 2003, Child C born [in] 2006 and Child D born [in] 2009.
11The parties and the children travelled to Australia on 8 June 2014 for a holiday expected to last until 31 July 2014. The parties visited the mother's sister in [Tasmania] and on 22 June 2014 arrived in [Perth] where they stayed with the maternal grandmother.
12The father took Child A and Child B to [Country B] on a school trip between 26 June and 13 July 2014.
13Between 13 and 15 July 2014 incidents of family violence occurred at the maternal grandmother's home to which I refer below. The police were called. The mother applied for a Violence Restraining Order. An interim order was granted which was extended for two years.
14The mother commenced these proceedings on 16 July 2014 and they came before the Court on 28 July 2014. On that date an order was made restraining both parties from removing the children from Western Australia, or the Commonwealth of Australia and the children's names were placed on the Family Law Watch List. It was ordered that the children's passports be lodged with the Court. The father was restrained from removing the children from the mother's care.
15The father returned to Country A on 31 July 2014.
16The mother sought psychological help for herself and the children.
17On 19 August 2014 the father applied to the [Country A Central Authority] for assistance in recovering the children under the Hague Abduction Convention. On 17 September 2014 an application seeking the return of the children was filed in this Court. The application came before the Court on 22 September 2014 when directions were made and the Family Law Act1975 (Cth) ("the Act") proceedings were stayed.
18It was ordered that a family consultant prepare a family report.
19The father's application under the Hague Abduction Convention was heard by Moncrieff J on 24 March 2015. Moncrieff J delivered judgment on 2 April 2015 and the father's application for the return of the children was dismissed. Moncrieff J was satisfied that there was a grave risk that the children would suffer physical or psychological harm if a return order was made. Moncrieff J also concluded that the views express by Child A and Child B showed the required strength of feeling beyond a mere expression of a preference.
20On 28 May 2015 the father commenced divorce proceedings in the [Family Court of Country A]. The parties' marriage was dissolved on 19 May 2015. The father retained the marital property which remained in Country A.
21On 10 June 2015 upon the mother's application, orders were made ex-parte restraining the parties from removing the children from Australia and their names were placed on the Family Law Watch List.
22On 7 August 2015 it was ordered by consent that the children live with the mother and the father was restrained by injunction from removing them from her care. The children's names were ordered to be placed on the Family Law Watch List until they reach the age of 16 years. An order was made that the children be independently represented.
23The children's passports were to be returned to the mother.
24On 9 November 2015 it was ordered by consent that the mother provide a recent photograph of the children to the father's solicitor and, subject to the agreement of the children's counsellor the father be at liberty to send gifts and cards to the children.
25Ms Smith was appointed Independent Children's Lawyer.
26On 30 November 2015 [Dr M] was appointed Single Expert Witness.
27Procedural orders were made for the filing of documents. The father failed to comply with various orders and on 10 June 2016 it was ordered that he file his affidavit and those of his witnesses within 56 days, and if he did not comply with that order the case would proceed on an undefended basis.
28The father filed his trial documents on 5 August 2016.
29On 13 January 2017 it was ordered that the evidence in the proceedings under the Hague Abduction Convention, the transcript of those proceedings and the judgment of Moncrieff J delivered 2 April 2015 stand as evidence in the child related proceedings.
30On 19 January 2017 the father's oral application to attend the final hearing of the proceedings electronically was dismissed.
31The trial listed for trial on 30 January 2017 was vacated. It was further ordered that if the father wished to participate in the final hearing of the proceedings he was to do so in person.
32The mother applied for a further VRO on 12 June 2017 on the expiry of the earlier order. An interim order was granted and extended to two years.
33The proceedings were listed for trial to commence on 9 October 2017.
34On 18 September 2017 upon the mother's application, it was ordered that the father provide his travel itinerary and confirmation of his booking to travel to Australia to the ICL by 22 September 2017 failing which, the matter would proceed on an undefended basis.
35The father provided evidence of his travel plans and on 26 September 2017 orders were made about the filing and service of the documents necessary for the trial to proceed. The trial commenced on 9 October 2017 and concluded on 13 October 2017. The father attended in person.
The orders sought by the Independent Children's Lawyer
36At the conclusion of the evidence, the ICL provided a minute of proposed orders. She proposes that the children live with the mother who should have sole parental responsibility for them, although the mother should keep the father informed of all significant health issues.
37The ICL seeks an order that the mother live with the children in Australia as determined by the mother.
38The ICL proposes that Child A and Child B communicate and spend time with the father in accordance with their wishes and Child C and Child D spend time and communicate with him in accordance with their wishes in consultation with any therapist treating them at the time.
39The ICL seeks an order that the father undertake a psychological assessment by either a clinical psychologist or psychiatrist, with a copy of the assessment to be provided to the mother and the therapist treating the children.
40The ICL proposes the father be restrained by injunction from initiating any contact with the mother or children for a period of 12 months from the date of orders and thereafter he be permitted to communicate with the children by letters, cards and gifts only, with such correspondence to be no more than once per month.
41After a period of 12 months and subject to any recommendations of the children's treating therapists, the ICL proposes that the children have phone and email communication with the father no more than once a month.
42The ICL proposes any face to face time the children spend with the father be subject to the father having completed the assessment and a minimum of six months' communication with the children as set out above and in accordance with the recommendations of the children's treating therapists. The mother is to facilitate the children having therapy with the father to meet the cost.
43The ICL proposes various injunctions restraining the father from otherwise communicating with the children, attending their school or removing them from the care of the mother or a third party. In the event that he fails to comply with those injunctions his time with the children pursuant to the orders be suspended and only take place in accordance with the children's wishes.
44The ICL proposes the mother should facilitate passing on gifts and correspondence to the children from the paternal grandmother provided she is not an agent for the father and she should facilitate the children's communication with the paternal grandmother. In the event the paternal grandmother travels to Australia the mother should facilitate time between the children and her, subject to the children's wishes.
45The ICL proposes that the mother shall send the father an up-to-date photograph of the children twice a year.
46The ICL proposes that the requirement for the father's signature for Australian passports for the children be dispensed with. She further proposes that the children's Country A passports be cancelled. The children's names are to be removed from the Family Law Watch List upon proof that the Country A passports have been cancelled or two years from the making of orders.
The orders sought by the mother
47The parenting orders sought by the mother are contained within a minute of proposed final orders filed 4 October 2017. The mother seeks an order that she have sole parental responsibility for the children to include where they live within Australia and travel both within and outside of Australia. She proposes to inform the father if any of the children suffer an illness or injury which requires hospital admission or treatment for more than seven days. The mother proposes that in the event of her death the children are to live with her sister, [Ms D].
48The mother seeks an order that the children live with her in Australia. She seeks injunctions restraining the father from contacting the children, removing them from Australia or from her care or control and that the children's names be placed on the Family Law Watch List until each of the children attain the age of 16 years.
The orders sought by the father
49The parenting orders sought by the father are contained in his trial affidavit filed 5 August 2016. He seeks parental visitation rights to see the children. He requests "all custodial and parental rights the court deems are in the best interests of the children".
50During the course of the trial the father said he hoped the Court would make orders permitting the children to spend time with him while he was in Australia, for example to spend time with them at the weekend in Perth. It was his position that there should be group supervised counselling with himself, the children and a counsellor.
51At the conclusion of the evidence the father had an opportunity to consider the minute of proposed orders provided by the ICL. He wants to be informed of positive events in the children's lives. The father wants the opportunity to have joint therapy sessions with the children even if they do not wish to communicate with him. The father does not wish the person who undertakes an assessment of him to be provided with the report of Dr M which he described as "skewed". The father considers the periods of time referred to in the ICL's minute to be too long. He was concerned about the order that any communication between the children and him should be subject to the recommendations of the children's treating therapists who he believes will deny contact between the children and himself, particularly with respect to [Ms O], the therapist for the two younger children. His concern was that a re-establishment of a relationship between the children and himself would be blocked by the therapist. The father was opposed to the injunctions sought by the ICL and he wants the mother to pay for professional photographs of the children and send them to him.
THE TRIAL
52The mother was represented by Mr Nicholls of Queen's Counsel. The father was a self-represented litigant. Ms Reader was the ICL.
53Prior to the trial Queen's Counsel for the mother had helpfully provided a case summary, the mother's chronology and a trial plan.
54The father had travelled to Perth from Country A. He informed the Court that on the fifth day of trial he needed to attend [the] Magistrates Court in connection with breach of VRO proceedings.
55The father was provided with a complete set of documents to ensure that he had copies of all documents relied on. These were copied by the Court on his behalf. Both Queen's Counsel for the mother and the ICL are to be commended for their approach to dealing with the father, with respect to the assistance they provided to him in managing his documents.
56Queen's Counsel and the ICL also managed the trial plan efficiently and well. It included the attendance of witnesses by video link from Country A and the attendance of various professionals both in person and electronically. It is due to their efforts and also to the father's cooperation that the trial was completed within the designated five days.
57I explained the trial procedure to the father and afforded procedural fairness to both parties. The father participated fully in the trial. I am satisfied he understood the proceedings.
58Prior to the commencement of the evidence the father made an oral application for an order that an independent person see him and the children together. His application was opposed by the mother and the ICL. I refused his application for reasons given at the time, which included the following:
•The timing of his application;
•The father had not taken an opportunity to seek that order when he was invited to participate in the preparation of the single expert's report many months earlier; and
•The children's relationship with the father was to be the subject of evidence at trial. The evidence of the professionals although at that stage untested, was sufficient for me to be concerned that the father's proposal may not be in their best interests. The children were said to be traumatised by events which occurred prior to separation and to require them to have face‑to‑face contact with the father without first having appropriate supportive counselling could be detrimental to their wellbeing.
The mother
59The mother was very emotional when giving her evidence. She said she was petrified and sick. She described many incidents of family violence to which I refer below.
60In cross-examination by the father the mother was angry at times. She told him she considered he was a sexual predator and said he had raped her for years.
61The mother described at length her fear and that of the children. During the course of his cross-examination of the mother the father asked her, if he accepted the children's accusations would it help the children? The mother said if he admitted his guilt and apologised it would help. She said he would also need to get counselling, but referring to Dr M's recommendations, she questioned whether it was too late.
62At times the mother became agitated and spoke forcefully to the father of harm he had caused to her and the children and the effect it has had upon them. The mother said "We all fear you".
63At times the father asked the mother a number of questions suggesting that his behaviour had been appropriate. She made few, if any concessions.
64In cross-examination the father searched for some indication which would suggest the possibility of a relationship between the children and him, but the mother gave him none.
65At one point the mother lost her control and told the father that he should be in jail being raped himself.
66When answering questions from the ICL and her own Queen's Counsel the mother's language was more moderate and controlled.
67The mother explained that Child A was nervous about seeing [Ms I], and so Ms D wrote down Child A's account of events which is contained in the email which is Annexure H to the mother's trial affidavit filed 13 September 2016. The mother said that is when "it all came out". When asked, Ms D said she did not assist Child A with the letter. The father said the creation of this document is questionable. For example, in it Child A refers to schooling and first year, when the father said those words were probably not within her vocabulary and she would have referred to this as first grade. The father said Child A did not compose this document.
68I think it more likely than not that this document was prepared by someone assisting Child A. I also note however that much of its content is consistent with what Child A reported to the Family Consultant and Ms I. I do not therefore disregard the content of the email, but I have borne in mind both the circumstances in which it was created and that Child A's account of events has been reported by others.
69As discussed below, [Dr P], Psychiatrist and [Dr B], Counselling Psychologist report that the mother meets the criteria for PTSD.
Dr B
70Dr B is a counselling psychologist working in private practice. He provided a report in relation to the mother dated 8 September 2016. He gave oral evidence by way of telephone link up.
71Dr B reported that the mother had been referred to him by her general practitioner, the referral citing a primary diagnosis of PTSD. The mother first met with Dr B on 15 January 2016, and she reported a long history of emotional abuse, controlling behaviour, violence and sexual assault from the husband in their prior relationship as detailed in his report. Dr B reported that the mother's reaction to these events met the formal DSM-5 Diagnostic Criteria for PTSD. The mother attended upon him at regular intervals. She has had a total of 28 appointments, 21 in 2016 and seven in 2017.
72In evidence Dr B said the mother recalled a number of physical altercations including one in which the father's hands were wrapped around her throat. Dr B said that the mother talked to him about the children and about keeping them safe. She focused on the children.
73In answer to questions from the ICL Dr B said the PTSD symptoms of the mother are manageable if she receives help. He said parenting is not impossible for a person with PTSD.
Ms N
74[Ms N] is the parties' neighbour in Country A. She gave evidence by video link from Country A. Ms N is a friend of the mother and saw herself as a mother substitute for her. The mother confided in her. Ms N recalled an incident some years before in which the father assaulted the mother by putting his hands around the mother's neck and choking her. She saw marks on the mother's neck after the incident.
75Ms N deposed that in March or April 2014 the mother told her the father raped her the night before.
76She deposed she heard yelling and screaming from the parties' home. She heard the father yell at the children, including calling Child B "stupid" and "idiot". In evidence she said the mother and children were scared of the father.
77Ms N gave her evidence firmly and clearly. I consider Ms N gave truthful evidence.
Ms G
78[Ms G] is a friend of the mother. She gave evidence by video link from Country A. Ms G deposed she and the mother were friends and their children grew up together. She deposed the mother told her she feared the father would kill her one day. Ms G deposed in 2012 the mother disclosed to her that the father had anally raped her. The mother told her she did not feel safe around the father.
79Ms G described an incident when the father sprayed her with a water gun and she felt disrespected.
80Ms G described what Child A told her, including that the father hated her, he would make her do homework until the early hours of the morning and she hated being at their home. She told Ms G she was scared of the father.
81Child B told Ms G he did not think his father loved him much and they did not get along well. Child D said she was scared of the father. Ms G said she saw the father doing activities with the children and in public everything seemed okay.
82The mother appointed Ms G as temporary custodian of the children. Ms G deposed the mother told her the letter explained what she needed to do with the children if she died, or the father murdered her.
83Ms G said the mother told her multiple times she feared the father would kill her.
84Ms G was pleasant to the father and a cooperative witness. I consider she gave truthful evidence.
Ms D
85Ms D is the mother's sister. During her visit to Country A in 2006 she recalled the father yelling and belittling the children, particularly Child B. She was concerned for the mother and the children during the visit.
86Ms D maintained confidential communication with the mother. The mother confided in her, including about the father's sexual behaviour towards her.
87In 2013 Ms D emailed the mother's father expressing her concerns for the safety of the mother and the children. Ms D deposed in 2013 the mother called her and told her she was scared because the father had been looking up automatic rifles on the computer.
88On 23 July 2013 the mother wrote a letter stating that if anything should happened to her she wished Ms D to have full legal custody of the children and the power to move them to Australia.
89Ms D recalled the family visiting her home in Tasmania in 2014. She said at that time the children confided in her that they did not like their father and she noticed the mother was anxious.
90Ms D was very supportive of the mother and closely aligned with her. Her evidence was mostly reliable.
Ms K
91[Ms K] is the maternal grandmother. She visited the parties in Country A.
92Ms K recalled an incident when the mother was pregnant and in pain and she became stressed. The mother asked the father to do something about it, but he did not and laughed. The following day the mother went to hospital and learned she had lost the baby.
93Ms K said the father yelled at the children and at the mother. The children were stressed and anxious when they knew their father was coming home and the father berated Child B about his homework.
94Ms K described an incident in 2012 in which the father lashed out at Child C and hit her in her stomach. This occurred after Child C accidently hit him in the testicles.
95Ms K's evidence differed from that of the mother in this respect, as the mother said that Child C had not hit the father in the testicles.
96Ms K also deposed to the incidents which occurred in July 2014 to which I refer below.
97Ms K deposed the children have changed a great deal since their arrival in Australia in 2014. They are happier and more relaxed. They love their schools and have lots of friends and playmates.
98Ms K was cooperative in cross-examination. She made some concessions where appropriate and she was measured and balanced in her evidence. She was an honest and reliable witness.
The father
99As a litigant the father was cooperative, compliant and respectful to the Court. At times he was visibly distressed when discussing the children for example, when the mother said the children have insomnia and cannot sleep.
100The father also became distressed when he asked the mother if the children were not safe and loved and she responded "quite the opposite".
101The father was again visibly upset when the maternal grandmother described the mother finding out in hospital she had lost the baby.
102During the father's cross-examination of the maternal grandmother, she said he had been mean to her and he apologised to her.
103At the commencement of Queen's Counsel's cross-examination of the father, he asked me to warn the father that he would only ask a question once. Queen's Counsel had cross-examined the father in the Hague proceedings in which Moncrieff J found the father to have been a most unimpressive witness in that he avoided answering questions directly and was argumentative. I declined to make this ruling, because it anticipated the father's lack of cooperation. I said if I found the father to be uncooperative then, and if necessary, I would give him that warning. It was not necessary for me to do so.
104For the most part the father answered the questions of Queen's Counsel, although at times he was unable to answer some complex questions concerning whether the mother had influenced the children or whether they had made up stories.
105When Queen's Counsel asked the father about family violence and in particular the incident in which the mother said she had been pushed down the stairs, the father's demeanour and attitude changed. He became angry and agitated.
106During the father's evidence various paragraphs of the transcript in the Hague proceedings were put to him. In those proceedings he said he had not committed acts of family violence against his family. In answer to Queen's Counsel's questions however, he said he did scream at his children referring to the July 2014 incident when he described himself as "horrible". At times he disciplined them and had spanked them on the bottom, he said with the mother's permission. He was provided with a copy of the definition of family violence and he said "I do not think I committed family violence to a degree that it would be called family violence". The father was asked if the mother had fabricated evidence and taught the children a false narrative and he replied she had, although not necessarily intentionally. He said in making horrific accusations against him in front of the children she poisoned them into believing he was a monster. The father said the children were not giving an account of their true experiences. The father said the mother has reinforced the children's untrue accounts and he referred to a game of telephones, by which he meant an account of an event becomes embellished or increased the more it was repeated.
107The father said the mother has distorted the past and coached the children although he was unsure if either was deliberate. The children were exaggerating for self-serving purposes, that purpose being that they want to stay in Australia.
108The father said Child A had told lies and explained that by saying she is a teenage girl who wants to stay in Australia at her grandmother's house near the beach.
109Queen's Counsel put to the father the proposition that Ms I, Dr P, Dr B, Dr M, Ms O and the Family Consultant have all correctly reported what they have been told. The father said he had no reason to believe that the reports of these persons were inaccurate.
110As to the mother's mental health the father's case was that the mother was at times delusional and paranoid and got angry about things that did and did not happen. He did not know if it was a mental illness.
111The father said it is plausible that the mother has PTSD. He agreed the mother had various symptoms which he said were new. He attributed them to a combination of events including the incident in July 2014.
112As to the children's symptoms the father said he did not know what caused them and his best guess was the events of July 2014. He does not accept the evidence of the professionals that the children have PTSD. He described the reports as skewed.
113I thought the father demonstrated some insight into the needs of the children when he questioned the mother about whether it would help the children if he made admissions and saw a therapist. However he later said his intention was to draw parallels between the situation now and that prior to separation. He described it as a control issue saying it was about the mother being in control of the situation to satisfy her needs. He described it as her continued abuse of him.
114In the father's closing submissions he considered the ICL's minute of proposed orders indicating he would obtain therapy in Country A.
115The father does not accept he was the perpetrator of family violence towards the mother and the children. Where the parties' evidence in this respect differs I prefer that of the mother. Her evidence is corroborated by her witnesses who, for the most part I found to be reliable. The mother's evidence is also corroborated by the accounts of events provided by the children to their treating therapists and also to the Family Consultant.
Mrs Kazi
116[Mrs Kazi] is the paternal grandmother. She gave evidence by video link from Country A.
117The paternal grandmother deposed to family occasions and to the father's involvement with the children including their activities and homework. She deposed to Child B looking very comfortable with the father.
118The paternal grandmother said the mother was a good mother and the father was a good father and together they did the best they could for the children. She described the father as a good son, but not perfect.
119Annexure H to the father's affidavit is a letter dated October 22, 2014 written by the paternal grandmother, which she confirmed was true. In the letter she referred to the mother complaining about the father, including that he screamed at the children about homework. She said the mother never complained that the father was physically abusive towards them. The paternal grandmother wrote that more recently the children had begun to complain about their father but most of their complaints were about accidents. She did not see a problem when she visited the home. The paternal grandmother recalled an incident when the father put Child C in a car seat and was cross with her. Child C was crying and she intervened and told him stop behaving like that. She would be prepared to have a relationship with the children separate from that of the father.
120The paternal grandmother was supportive of the father. I conclude from her evidence that she was unaware of many of the difficulties between the parties including the father's behaviour.
Ms S
121[Ms S] is the father's sister she too gave evidence by video link from Country A. She spoke of family gatherings and on those occasions she never heard the father raise his voice or use violence against the children or the mother. She recalled the mother making complaints about different things and complaining about the father in the presence of the children.
122She has no relationship with the children now, but previously got on well with them, particularly Child A. Child A never mentioned the father's treatment of the other children. Ms S was also supportive of the father. I conclude she too was unaware of the difficulties in the family.
Dr M
123Dr M is a clinical and forensic psychologist. He provided two reports, dated 24 August 2016 and 28 September 2017.
124In his first report, Dr M referred to the limitations of his examination and report, in that the father did not comply with the order to facilitate the completion of the assessment, including making himself available. Consequently the first report was provided without psychological testing of the father, direct observation of him, observations of the children interacting with him or a diagnostic interview of him. Opinions and recommendations regarding the father were restricted to consideration of correspondence received by him and concerning him.
125No observations were undertaken of the mother, nor of the children interacting with her. There was also no diagnostic interview of the mother.
126The children were examined via psychological tests completed by the mother, documentation provided by the ICL, school reports, direct observations of the children, testing of them and diagnostic interview of them.
127Dr M reported all children are suffering varying degrees of psychological problems. Dr M reported that Child A and Child B while superficially coping, expressed emotional distress to a level that warranted immediate clinical attention. All four children identified a troubled relationship with their father.
128Dr M formed the view that the children were at risk of abuse from the father, including by him contacting the children at a time when they were psychologically vulnerable. As to the children's collective views of their current and future relationship with the father, Dr M reported that they did not trust him and could not trust what he says. They see him as "mean", by which they appeared to consider him as overbearing, physically and verbally abusive and failing to understand their needs. At the time of the first report none of the children wished to live or have contact with the father, except for Child C and Child D who were prepared to consider limited contact only.
129Dr M reported that the father's failure to engage was of considerable concern and contrary to his stated aim of reunification with the children.
130Dr M recommended that before the children have any contact with the father he undergo both a detailed psychiatric and psychological examination to rule out the possibility that he is suffering a mental health and/or psychological disorder. In the event he does not suffer such problem or disorder, he should work with a clinical psychologist or therapist, together with the children's therapist to develop a parenting plan taking into account the children's wishes and needs.
131In the event the father does have a mental health and/or psychological disorder, this should be treated before consideration is given to a parenting plan.
132Dr M reported that Child A and Child B were at an age where attempting to force them to resolve conflict with their father is likely to be resisted and to cause further damage and estrangement between them and the father. The assistance of the father's therapists and counsellors gives the best hope for a future relationship.
133In relation to the younger children, Child C had not made up her mind about a relationship with the father and there was a chance such a relationship was possible. Child D was most likely to be prepared to develop a relationship with the father. Dr M recommended the children should not spend time with the father until the recommendations in his report had been satisfied.
134In his second report Dr M stated the focus of that report was the children and their position with respect to contact with the father. For this report Dr M interviewed the children only. They were interviewed separately on 19 September 2017.
135Dr M reported all children expressed a view they did not want to have contact with the father whether it be by email, Skype, telephone or mail. He reported as to the reasons for their views. In the event the father had treatment, Child A's and Child B's positions did not change. Child C said she might talk to him on the phone and Child D said she would need to ask her mother.
136Dr M reported it was possible that the mother and Child B had been talking about the father, because Child B said that his father's belief that his mother was brainwashing him was "stupid".
137He repeated his previous recommendation and recommended that the father undergo a detailed psychiatric and psychological examination.
138Dr M described Child A as "cold and indifferent" when talking about her father. He said this was concerning and suggested longstanding problems, because normally girls at that age want a relationship with a father.
139Dr M said on a superficial level the children are doing well, but this belied their underlying psychological difficulties. He likened this to the children being like "ducks" serene on the top, but underneath paddling very hard.
140The father cross-examined Dr M extensively and Dr M was patient and measured in his responses. He acknowledged the limitations to his report as a consequence of the father's lack of involvement. He denied any bias by reason thereof. I accept his denial. On the contrary, I consider that Dr M considered the father's position very carefully during the course of the cross-examination. Ultimately, Dr M adhered to the terms of his report.
141Dr M did not recommend that the children's treatment for PTSD and the therapy go hand in hand. He said the father should love the children enough to let them go because the first thing to do in the treatment of PTSD is to create a secure environment. He said it would be best for the father to step back, for the therapists to work with the trauma, to get the children settled. He could not say how long this would take.
142He said if the children are ready to, and feel resilient and strong enough, they may want to get to know the father again.
143Dr M gave oral evidence clearly in a well-reasoned and balanced way. His evidence was of assistance to me.
Ms I
144Ms I is a psychotherapist and clinical social worker. She was contacted by the mother in August 2014 with a request that she conduct a psychological assessment of the mother and the children. Ms I met with the mother, Child A and Child B, and referred the two younger children to Ms O. Ms I provided a report dated 13 October 2014 and an updated report dated 23 September 2017.
145Ms I continues to see Child A and Child B on a needs/ad hoc basis. She has had no contact with the father and frequent contact with the mother. She provided therapy with the mother until June 2015.
146In her report Ms I created tables of reported violence and abuse and described it as the "tip of the iceberg". Those tables contained very detailed descriptions of abuse, the basis of which was the mother and the children's reports to her.
147Ms I reported in her first report that the mother, Child A and Child B described symptoms of PTSD of a complex nature, by which she meant trauma resulting from consistent and repetitive traumatic events. She opined that the family was at that time still in crisis and thus still experiencing immediate and ongoing trauma.
148In her summary she reiterated she had grave concerns for the safety and welfare of the mother and all of the children. She reported:
They described these kinds of abuse and atrocities that we only usually only hear about from victims of capture or those fleeing oppressive regimes.
149When asked about this by the father she likened the children's treatment at the hands of the father to that of the Jews in Nazi Germany in the 1930's and 1940's. While I accept Ms I's professional concern for the family, I consider her analogy to have been an unfortunate one.
150At her final paragraph Ms I reported:
Mr [Kazi's] reported behaviour is dictatorial, misogynistic and sadistic. As a consequence I would not recommend this family be in contact with this man in the short term and not until the abuse ceases …
151In cross-examination the father attempted to put to Ms I an innocent explanation for events. The father was at pains to test the veracity of the children's statements. Ms I said she takes the children's statements as they are. She said she does not seek the truth in a testing manner. Ms I deals with the children's beliefs as they are.
152In her updated report, Ms I reported that Child B has settled down and matured. He presents as very confident, but still has a degree of bravado. He still continues to display PTSD symptoms.
153Child A similarly displays symptoms of PTSD. She referred to Child A's complaint that the father had sent inappropriate messages and comments that for her are "creepy". For example, he sent a text message saying "sweet dreams [Child A's nickname]". In her opinion they were intimidatory and of a psycho-sexual nature. Both children want no contact with the father and Ms I has no doubt that both children are at risk of developing significant psychological and mental health issues, as they have spent many years as victims of, and witnesses to, violence and abuse by their father.
154I accept Ms I's evidence that the children display symptoms of PTSD and their wish is not to see their father.
Ms O
155Ms O is a child and family therapist. The mother made contact with her in August 2014 on the advice of Ms I, who was of the view that Child C and Child D required assessment. Ms O also met with the mother and the older children, but has since provided therapy to the two younger children.
156Ms O provided reports dated 10 October 2014 and 2 October 2017.
157Ms O reported that all of the children were experiencing various degrees of post-traumatic stress and anxiety, due to exposure to family violence over many years. She held great concern for the psychological and emotional health of the mother and the children, she had no reason to doubt their accounts of abusive and violent behaviour by the father.
158In her second report, Ms O reported she had seen Child C and Child D on average once every four to six weeks. She reported that Child D has strong memories of the past and still has chronic sleep problems and nightmares. Child D has shown some signs of psychological improvement, but fears that her father will break into her home and kidnap her.
159Child C has also shown good signs of psychological improvement and continues to maintain she wants no contact with the father. She is protective of Child D.
160In February 2016 Ms O read letters from the father to Child D and Child C. Both listened to the letters, but neither wanted to reply as they still felt scared of their father.
161The children are developing well, but both have worries and fears relating to the father. In evidence Ms O said testing the truth is not the focus, but she deals with what presents in the children. I asked her how a relationship with their father could be promoted in the present environment. She said the children would have to express some interest, or curiosity about the father and she would then explore and develop that. The children need to develop trust and Ms O could not put a time limit on this.
162Ms O said the situation was complicated by the fact that the father does not have a therapist with whom she could work, for example, if he was involved in a behaviour change program. An added complication was his residence in Country A. Ms O said to force Child C and Child D to see the father now would not be psychologically helpful to them.
163Ms O said the focus of therapy with the girls over the last few years had been to help them become psychologically stable to function at school, function at home, to meet their developmental milestone. It has been a period of settling them emotionally as opposed to reunifying them with the father. Her priority has been to have the children psychologically stable and not traumatised rather than to facilitate contact.
164Ms O was measured and balanced in her evidence. It was of assistance in my determination.
Dr P
165Dr P is a psychiatrist. He provided a report in respect of the mother dated 19 November 2014. The purpose of the report was to determine whether the mother has a psychiatric illness. It was prepared in the context of the Hague proceedings. The mother denied any psychiatric illness. Dr P found no evidence of any major Axis 1 or Axis 2 psychiatric disorder in the mother. He found no obvious evidence that the mother was telling lies and in preparing the report he relied upon her testimony.
166In a report dated 5 November 2015, Dr P provided a comprehensive mental health assessment and management plan for the mother. Dr P said in his previous report he wrote that the mother denied any psychiatric illness and denied any nightmares, florid flashbacks or PTSD. He stated that was different to what was now being reported by the mother. He said that her argument was that she had misconstrued the notion of craziness with mental illness, and that suffering trauma as a victim of domestic violence is a mental illness, but does not make her crazy.
167In cross-examination about this, Dr P said with respect to the mother's complaints, they were there but had not been disclosed at the time of the first report.
168Dr P reported the symptoms reported to him met the criteria for a DSM-5 diagnosis for PTSD, chronic, marked severity. The mother is on Lexapro and under the care of a GP and Ms I.
169Dr P reported that the mother's symptoms are almost at the level of paranoia, but can be understood when someone is very frightened and a victim of domestic violence. In evidence Dr P said whether the mother's fear is paranoia depends on whether the facts are true or not. If they are true it is not paranoia.
FAMILY VIOLENCE
170The mother deposed that from the time of their marriage in 2001 her relationship with the father was characterised by family violence inflicted upon the children and her. She says that violence included physical violence to Child B and Child C, emotional violence to all the children, and violent sexual domination, emotional and financial control of her, all of which had been witnessed by the children.
171The father deposed that the mother has made horrific accusations against him and has poisoned the children into believing that he is a monster. He further deposed that she has exhibited paranoia, depression and episodes of violence.
172The father said that Lexapro had a very negative effect upon the mother and her side effects included a lack of sexual interest, a violent sort of anger and hate. He said she became a little better after she stopped taking Lexapro but in Australia she had a relapse, in his opinion on 14 July 2014. The father said the children are telling stories about unpleasant memories of him and yet he has not seen fear in their eyes. He said he had to get in front of the children and tell them that they are safe and that he does not intend to take them from their mother. He said it was important for them to know they would have their mother and he wants them to be with her.
173The father said he had not committed family violence against the mother or the children. He said he has never forced himself upon the mother.
174In answer to a question by Queen's Counsel as to his case, the father said the mother had fabricated evidence and taught the children a false narrative.
175The mother deposed to many incidents of family violence including those referred to in the paragraphs following.
176The mother said in 2006 the father pushed her down the stairs when she was pregnant.
177The father said he bumped into the mother with his shoulder while he was walking down the stairs. He then took the children to school. He said the mother was pretending to be hurt, crying at the bottom of the stairs. He said he knew she was crying for sympathy. He said he didn't push her and it was an accident. He denied hitting her with newspapers and said this was a lie.
178Child A and Child B witnessed this incident. Child A referred to it in the email which is Annexure H to the mother's trial affidavit and also described it to the Family Consultant. Child A has very unhappy memories and is able to recall this and other incidents of family violence.
179Child B described the incident to the Family Consultant and said he tried to help the mother. He also described the incident to Ms I.
180The father said he thought Child B had embellished the story, and described Child B as the protector of the mother wanting to make her happy, and wanting to stay in Australia.
181The father showed little empathy and also some anger when discussing this incident. I accept the mother's account of events. It is supported by the accounts of it, given by two of the children to third parties.
182The father was asked about punching Child C. He recalled an occasion when he was working with her on her homework. He pulled her back in her chair, but pulled too hard and knocked the wind out of her.
183In 2012, the mother said the father was at the front door, Child C wanted his attention and he was in a bad mood. She said he punched Child C in the stomach and that he made up a story that Child C had hit him in the testicles. The mother said Child C was grabbing him on the back and he hit her because she was bugging him and he was in a bad mood.
184The father said Child C charged at him. She had the wind knocked out of her. He said he felt terrible and said he was sorry to Child C and those around him.
185The maternal grandmother said Child C hit the father in the testicles and he pushed her away and in doing so she was winded.
186Either way the father overreacted. Child C was a small child of about six years of age at the time and the father's reaction to her was excessive.
187The mother deposed that in about late June to July 2013 there was a terrible scene at the family home in which the children were involved. She deposed the father was angry at her and said she needed to "get on with my job and get into bed". She was cooking for the children at the time. The mother went upstairs to the bedroom hoping the children would remain downstairs. The father followed her in a rage yelling at her that she needed to "take care of him". The children followed. The father barricaded the bedroom door with furniture and Child A and Child B tried to get the door open. The mother picked up a vase and hit the father on the head. The father's head was bleeding. The children came into the room. The father admitted he put something against the door and said the children came in after he had told the mother to get on the bed so she would not hit him again. When describing this incident, the father said, usually when the mother hit him and acted out violently she ended up in a ball on the floor crying.
188Child A described this incident to the Family Consultant. She saw the mother on the floor crying and the father standing over her screaming to get on the bed. Child A said she put Child D and Child C in their room. She told the Family Consultant the father came out with blood everywhere, saying he was zombie and scared Child D.
189Child B also described this incident to the Family Consultant in similar terms.
190I find this incident of family violence occurred as described by the mother and the children.
191On an occasion, the father pulled Child B down the stairs causing him to bump his head on the stairs. The father said they got to the bottom of the stairs and Child B took a big chunk out of his leg. He acknowledged when asked by the ICL that Child B drew blood with his teeth. He did not agree he hurt Child B or that this was family violence.
192The father denied Child B was afraid of him because, he said, Child B had no fear of fighting back against him, either by throwing things at him or biting him.
193A further incident occurred when the father attempted to choke or strangle the mother by putting his hands around her neck. He was in the car about to drive away and he got out of the car and did this. It was witnessed by Ms N.
194The father's discipline was excessive. On an occasion when Child C was jumping on the couch, the father told her to stop, but she did not do so. He put her in a car seat that was too small for her. She screamed; the father said he did not know it was hurting her. The paternal grandmother intervened and told him to take Child C out of the car seat. In cross-examination about this incident by the ICL the father sought to justify this method of discipline and said he did not accept the children are scared of him. The father subsequently accepted he had been heavy‑handed in disciplining the children and said he thought the children are now frightened of the image of him.
195The father made the children get up at night and go for walks in the dark. He was very demanding in terms of their homework. He lost his temper and yelled at the children. Child A told the Family Consultant of many forms of punishment including having food withheld.
196The father's behaviour towards Child A has been inappropriate. Child A told the Family Consultant that the father lay on her bed with no shirt and would not leave when she asked him to do so. When she awoke he was kissing her over her face. Child A spoke to Ms I about this as well. Child A told the Family Consultant that on one occasion when she awoke her father had put a dress on her. The mother feared the father would hurt Child A.
197Child A told a friend at school that her father took her shopping and kept making her bend over to see if her underpants were showing. He then took her to try on boys' clothes. Child A's art teacher overheard this and asked her if there was any trouble. Child A was scared that she had been overheard.
198While in Country A, Child A told the mother that the father took her to try on clothes in the boys' section. The father said girls' clothes did not fit her. After the family left Country A, Child A told the mother that the father bought her boys' clothes which he made her hide in her bedroom. He made her change into those clothes in the car and wear them when they went out. The mother said the father told Child A not to tell her about it.
199When asked about Child A, the father said he did not remember sleeping in her bed with her since she was a baby. He did recall waking her up by kissing her on the forehead. It was put to the father that Child A reported that he had come into her bed, that she asked him to leave and he would not and so she went to sleep in the lounge while he remained in her bed. The father said that could have happened. He said Child A was not traumatised nor was it a big deal at the time and he felt she was using it as ammunition to avoid being returned to Country A. The father's position was that there was nothing sinister about this incident. Clearly he did not understand the impact it had on Child A as reported by her to others.
200The mother deposed the father's violence towards her was of a sexual nature. She deposed that in 2012 the father became increasingly violent in his sexual demands. She deposed to the father forcing her to have sex against her will, including putting his hand around her neck and applying pressure.
201Most recently on 13 July 2014, the mother said the father raped her in one of the rooms in her mother's house. He had returned from Country B. The father was angry and hid in a cupboard. He alleged the mother was "disrespecting" him. She said he wanted sex. They had sex for about 10 minutes and she told the father she had had enough and it hurt. He continued. She described his actions, when he did stop which were degrading.
202On 14 July 2014, the father became angry and again told the mother she disrespected him. He told her they had to leave and shouted to her to pack her bags and go to the airport. The mother refused. The father left the maternal grandmother's home and stayed overnight at a backpacker's hostel.
203On 15 July 2014, the father returned to the maternal grandmother's home. The mother told the father that he would never touch her again and that their relationship was over. The father demanded they go to the airport and return to Country A. The mother described the father as enraged and screaming in anger. The father screamed at the paternal grandmother and accused her of stealing his children. The mother picked up Child D and the father tried to wrestle her off her. Child C and Child D locked themselves in a closet in the maternal grandmother's room. Child A was frightened. The father offered to buy Child B a toy and Child B went with him. The police were called. The mother took Child A, Child C and Child D with her to Court where she obtained an interim VRO which included the four children. Child B returned home later. The father was served with a 72 hour police order.
204When asked about this incident the father said he was holding Child D and the mother pulled her away. He described Child A as "beside herself". The father admitted shouting at the maternal grandmother to give him back his children. He said he shouted at the top of his lungs so the whole neighbourhood could hear. He said he was worried the children would be taken from him and left in Australia.
205I accept the mother's evidence in relation to family violence. I do not accept the father's assertion that there was no family violence in the relationship and that the mother has taught the children a false narrative.
206The children were interviewed by the Family Consultant in connection with the preparation of her report dated 26 November 2014. Child A described the father psychically harming her, the other children and the mother. She described many forms of punishment meted out by the father, being exposed to controlling and isolating behaviour. Similarly Child B referred to numerous incidents of family violence, psychological abuse, controlling and isolating behaviour and alcohol abuse. Child C too spoke of the father physically harming her and the other children.
THE LAW
207These proceedings are determined under Part VII of the Act. In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects.
208Section 60B sets out the objects as follows:
(1)The objects of this Part 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.
209In deciding whether to make a particular parenting order, s 60CA directs me to regard the best interests of the child as the paramount consideration. Section 60CC sets out how I determine what is in a child's best interests. I must consider the matters set out in subsections (2) and (3), being the primary considerations and the additional considerations respectively.
210Section 60CC(2) sets out the primary considerations which are the benefit to the child of having a meaningful relationship with both the child's parents, and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
211Section 60CC(2A) provides that in applying the above considerations, the Court is to give greater weight to the need to protect the child from harm.
Parental responsibility
212Pursuant to s 61DA of the Act, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child.
213Equal shared parental responsibility imposes an obligation upon them to consult as to major long-term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue.
214The presumption does not apply in circumstances where there is abuse or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility.
215The mother seeks an order that she have sole parental responsibility for the children. The father makes no mention of parental responsibility.
216The ICL proposes on the basis that the children live with the mother she have sole parental responsibility for them.
THE PRIMARY CONSIDERATIONS
the benefit to the child of having a meaningful relationship with both of the child's parents
217The children have a meaningful relationship with the mother and it is to their benefit that it continues.
218At present the children do not have a relationship with the father and do not wish to do so. It is difficult to identify a benefit to the children of having a meaningful relationship with him at this time. In the event the father is prepared seek professional assistance with a view to changing his attitude and behaviour towards the mother and his approach to parenting, it may be that a relationship with the children will be possible in the future. Dr M reported there is no guarantee that Child A and Child B will want this.
219It is necessary to balance the possible benefits to the children of having a meaningful relationship with the father against any risk of harm such a relationship may pose to them.
the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
220There is not a need to protect the children from physical or psychological harm in the care of the mother. As discussed above the children have been exposed to abuse and family violence perpetrated by the father and there is a need to protect them from physical or psychological harm in his care. It would be psychologically harmful to them to communicate or spend time with him. In answer to questions from the ICL, Dr M said the effect upon the children if pressed to see the father would be devastating.
ADDITIONAL CONSIDERATIONS
any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
221The children's views are reported by Dr M, Ms I and Ms O. They do not want to see the father. The father's explanation for this is that the children have been influenced by the mother. On the contrary, Dr M said there was no evidence that the mother had spoken badly about the father to the children although in his second report he stated the mother may have discussed the father with Child B. When asked about parental alienation, Dr M pointed out that some parents alienate themselves by their poor parenting behaviour. He saw no indications of parental alienation syndrome, but just protective behaviour of the mother.
222It is the father's own behaviour which has caused the children to reject a relationship with him, something he will have to address if an attempt is to be made to restore that relationship.
the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child)
223The children have a close and loving relationship with the mother. They have a close relationship with the maternal grandmother. They do not have a relationship with the father at all.
224I am unsure about the children's relationship with the paternal grandmother. In his second report Dr M said the children like the paternal grandmother and enjoyed contact with her. In evidence the mother said the children love the paternal grandmother, but they do not want a relationship with her at this time.
the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
225The mother deposed that prior to separation the father made all major decisions about the children and she described him as controlling. Since separation the mother has made decisions about long-term issues. The father has not done so, or spent time, or communicated with the children for reasons set out above.
226The mother has maintained the children and the father has not provided financial support.
the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
227Any change in the children's circumstances such that they spend time, or communicate with the father against their stated wishes, is likely to have a detrimental effect upon them as set out by Dr M in his reports. The father wishes the children to spend time with him both in Australia and Country A. A separation from the mother for that to occur would not be in their best interests.
228I take into account that the children are currently separated from their father, but their current circumstances accord with their strong views.
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
229There is practical difficulty and expense in that the mother and children live in Australia and the father lives in Country A. The expense arises from the cost of travel, although the father may be able to afford that cost.
the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
230The mother has the capacity to provide for the children's needs including their emotional and intellectual needs. She promptly sought therapy for the children to address their psychological difficulties.
231The father has not demonstrated a capacity to provide for the children's emotional needs. He has exposed the children to family violence. He lacks insight into their psychological difficulties. He does not accept that they are fearful of him and says that they are telling stories about their experiences with him.
232In contrast the evidence of Dr M and the children's therapists is that the children have suffered psychologically.
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
233The children are aged 16, 14, 11 and eight years of age. All of the children have psychological difficulties as a consequence of the father's behaviour.
If the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal of Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have of that right
234Not relevant.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
235The mother has demonstrated an appropriate attitude to the children and to the responsibilities of parenthood. Dr M reported the mother has not influenced the children although he reported it was possible the mother may have talked with Child B about the father. Ms O was asked whether the mother would facilitate the children writing to the father if they showed an interest in doing so. She confirmed she would and when asked about the mother's reaction to this, she explained the mother had been "very easy to work with". Ms O said the mother would work with her suggestions, and she did not think the mother would stop the children communicating with the father if that was something that was good for them.
236I am satisfied that the mother has not sought to influence the children against the father and that she will do what is best for them in the future.
237The father has not demonstrated an appropriate attitude to the children, or the responsibilities of parenthood as set out above. His discipline of the children has been excessive, and his attitude controlling and dictatorial.
238He is significantly in arrears with child support.
any family violence involving the child or a member of the child's family
239There was family violence involving the mother and the children as set out above.
if a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter
240The mother obtained an interim VRO protecting her and the children from the father on 15 July 2014. The father was served with the VRO on 4 June 2015. The VRO was made final on 29 June 2015. The father continued to contact the mother and the children by email. The mother reported this to the police and a warrant was issued for the father's arrest in Western Australia on 31 July 2015.
241On 13 October 2017 the father pleaded guilty to 36 breaches of the VRO. He was fined $1,500.
242The father said although he breached the VRO he did not contravene the Court orders made on 9 November 2015 which permitted him to send gifts and cards to the children.
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
243It is necessary to make orders which will protect the children from further harm.
244The orders sought by the mother effectively "close the door" on the children's relationship with the father now and in the future. She makes no proposals for the children to spend time or communicate with him and she seeks injunctions restraining the father from contacting them.
245The father seeks "parental visitation rights". The ICL proposes that the father undergo a psychological assessment and that he be restrained from communicating with the children for a period of 12 months. Thereafter and subject to the recommendations of the children's therapists there may be communication between the father and the children.
246I consider it in the best interests of the children to finalise these proceedings. The children have now been the subject of proceedings for almost four years. The ongoing therapeutic intervention removes the need for further proceedings as that is the best way to monitor the children's progress.
247There was anxiety on the part of the mother and the children that they may have to return to Country A. The decision having been made that they do not, their positions remained insecure pending a determination of these parenting proceedings. It is important and in the best interests of the children to reduce that anxiety by bringing these proceedings to a conclusion. It is not of benefit to the children to make interim orders. I have considered the recommendations of Dr M which are amenable to final orders if I determine they should be followed. I am mindful of the importance of the children becoming psychologically stable and also the desirability of providing the mother with some stability in the parenting arrangements.
248Dr M said he could not say how long it would take for the children to become settled, and the therapy (with a view to reunification) should not commence until this has occurred. The persons best placed to advise when the children have been treated are the therapists.
any other fact or circumstance that the court thinks is relevant
249No other matters are relevant.
Parental responsibility
250There has been family violence between the parties. The presumption that it is in the children's best interests that their parents have equal shared parental responsibility for them does not apply. As set out below, I intend to order that the children live with the mother. I will also order that the mother have sole parental responsibility for them. The father has not seen the children for over three years. There is no question of the parties consulting or coming to joint decisions. The mother is well placed to make the long-term decisions for the children and she proposes to provide the father with some information regarding illness or overseas travel.
The children's living arrangements
251The children will live with the mother. It would be completely contrary to their best interests to remove them from her care. Their current circumstances are settled.
252I now turn to the issue of the children's time with the father. The orders sought by the mother are that the children should spend no time with the father, or communicate with him and she seeks an order restraining him from contacting them. The father proposes that the children spend time with him. The ICL proposes a mechanism whereby attempts can be made to restore some communication between the children and the father subject to certain conditions. This issue is finely balanced. The termination of the relationship between the children and the father is an option of last resort and "is one which ordinarily the Court takes only with considerable hesitation" (Sedgley v Sedgley (1995) FLC 92-623).
253I have borne in mind the mother's fear of the father, and that of the children, as a consequence of his actions and behaviour, which has had a profound effect upon them. I am also mindful of the impact the orders I make may have on the mother's capacity to parent. The mother will have the comfort of knowing that final orders have been made that the children live with her and she have sole parental responsibility for them. Furthermore, the father lives in Country A and while that raises its own practical difficulties in relation to therapy and the time the children spend with him, there is considerable distance between them.
254In considering whether I should make the orders sought by the mother I have taken into account the father's indication in his closing submissions, that he is open to the orders sought by the ICL that he undertake a psychological assessment, and his stated willingness to engage in what he described as joint therapy sessions. I have also taken into account the evidence of Dr M that the two younger children may want a relationship with the father in the future and that the assistance of therapists for the father and for the children gives the best hope for a future relationship. Much will depend on the children's recovery and their wishes, but the possibility of a relationship between some, or all, of the children is not completely absent.
255I bear in mind that the children's best interests is the paramount consideration. Taking into account the objects and principles as set out in the legislation and having regard to my discussion of the s 60CC factors above, I conclude that the proposals of the ICL are those which are in the best interests of the children. These proposals reflect the recommendations of Dr M which I consider to be soundly based, particularly the need for the father to undergo a detailed psychiatric and psychological assessment. I have however reached my conclusions by assessing all of the evidence and not just that of the experts and the treating professionals.
256The children are improving psychologically. The focus of their therapy has been to help them to become psychologically stable, rather than to facilitate reunification with the father.
257The children's communication with the father will be in accordance with their wishes in respect of Child A and Child B, and as recommended by their therapists in respect of Child C and Child D. As the children mature and continue their psychological recovery they will be able to express their wishes in this respect.
258It is important that the father comply with the orders for a psychological assessment, and that he further comply with the recommendations of those treating him and the children. It is appropriate that those persons are provided with a copy of these reasons and these orders.
259The father's desire to spend time with the children is, to a certain extent, in his own hands. It will involve a considerable change in his views and he will have to gain some insight and empathy with respect to the needs of the children.
260In closing the father said he would comply with all orders of the Court. He accepted his track record was poor and he said he would do anything he could to make the children not frightened of him. He said in therapy he will apologise. It remains to be seen if he does so.
261The orders below provide an opportunity for the children to have a relationship with the father, if and when, they wish to and are ready and able to. The orders provide a mechanism for this to occur and these orders are in the best interests of the children.
THE PROPOSED ORDERS
1All previous child related orders be discharged.
2The children [Child A] born [in] 2001, [Child B] born [in] 2003, [Child C] born [in] 2006 and [Child D] born [in] 2009 live with the mother.
3The mother have sole parental responsibility for the children but shall keep the father informed of all significant health issues affecting the children.
4The children live with the mother within the Commonwealth of Australia at a location as determined by the mother.
5Notwithstanding as stated otherwise in these orders the children [Child A] and [Child B] communicate with and spend time with the father in accordance with their wishes.
6Notwithstanding as stated otherwise in these orders the children [Child C] and [Child D] spend time with and communicate with the Father in accordance with their wishes in consultation with any therapist treating the children at the time.
7The father forthwith and at his own expense undertake a psychological assessment by either a clinical psychologist or psychiatrist ("the Assessment") reporting on his mental health with a copy of the Assessment to be provided to the mother and any therapist treating the children.
8The father is to provide to any health professional undertaking the Assessment the following:
(a)a copy of the reports from the Single Expert Witness, [Dr M];
(b)a copy of these reasons; and
(c)a copy of these orders.
9The father be restrained by injunction and an injunction is granted restraining him from initiating any contact by any means whatsoever with the mother or the children for a period of 12 months from the making of these orders and thereafter the father be permitted to communicate with the children via letters, cards and gifts only, with such correspondence to be no more than once per month.
10After a period of 12 months and subject to any recommendations made by any therapist treating the children, in addition to order 9 above the father communicate by phone and email with the children on no more than one occasion each month with phone communication to be at a time designated by the mother.
11Any face to face time the father spends with the children be subject to the following:
(a)the father having completed the Assessment;
(b)the father having completed a minimum of six months' communicating with the children in accordance with order 10 above; and
(c)the recommendations of any therapist treating the children including supervised time.
12The mother shall facilitate the children having therapy as recommended by the children's therapists with the father to meet the costs of that therapy.
13The father be restrained by injunction and an injunction is granted restraining him from:
(a)making contact with or communicating in any way whatsoever with the children other than in accordance with these orders;
(b)attending at any school in which the children are enrolled without the prior knowledge and consent of the mother and the respective child; and
(c)removing the children from the care of the mother or any third party into whose care the mother has placed the children.
14In the event the father breaches any of the injunctions as outlined in orders 9 and 13 above his time with and communication with the children be hereby suspended and shall thereafter take place subject only to the children's wishes.
15The mother shall facilitate the passing of gifts and correspondence including emails from the paternal grandmother to the children, subject to the condition that the paternal grandmother does not act as an agent for the father or such gifts and correspondence involve the father; and
16In the event the paternal grandmother acts as an agent or involves the father, the mother may thereafter at her discretion and in accordance with the wishes of the children cease to facilitate such communication.
17The mother shall facilitate the children communicating with the paternal grandmother by telephone subject to the conditions as outlined in orders 15 and 16 above and the children's wishes.
18In the event the paternal grandmother travels to Australia the mother shall facilitate time between her and the children subject to the children's wishes.
19The father shall provide a copy of these orders to the paternal grandmother.
20The mother shall send to the father in January and June of each year an up-to-date photograph of the children.
21The requirement for the father's signature for an Australian passport application for any of the children be hereby dispensed with.
22In the event the children have a current passport from [Country A] both parties are forthwith to do all acts necessary to have those passports cancelled and thereafter both parties are hereby restrained by injunction from making any application for a passport for any of the children other than for an Australian passport.
23Further to order 22 above a copy of these orders is to be provided to any Embassy and/or Federal Agency of [Country A] responsible for the issuing of passports to citizens of [Country A].
24The children's names shall be removed from the Australian Federal Police Family Law Watch List upon proof of compliance with order 22 above or after two years from the making of these orders whichever occurs first.
25The Independent Children's Lawyer be discharged.
26All applications be dismissed.
27All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
28In relation to material tendered as an exhibit into evidence in these proceedings:
(a)all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today's date;
(b)all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits; and
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.
29In the event of an appeal being lodged prior to the expiration period of 42 days, orders 27 and 28 above do not apply.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
ASSOCIATE
13 APRIL 2018
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