KHALIL & TAHIR-AHMADI

FAMILY COURT OF AUSTRALIA

KHALIL & TAHIR-AHMADI

[2011] FamCA 521

FAMILY LAW - CHILDREN – final orders – with whom a child lives – application by the father seeking orders that the child reside with him in Iran – where the mother makes allegations of domestic violence against the father – where the father will be required to return to Iran upon the conclusion of the proceedings – where the mother is now a permanent resident in Australia – where the mother refuses to return to Iran out of fears for her safety – where the child has been resident in Australia for the majority of his life – best interests – orders that the child live with the mother and spend time with the father in Australia.

FAMILY LAW - CHILDREN – final orders – parental responsibility – whether the presumption of equal shared parental responsibility under section 61DA has been rebutted – where the father will be residing in Iran and the mother in Australia – where the parties have a poor relationship – best interests – where it is not in the best interests of the child that the parties have equal shared parental responsibility – orders that the mother have sole parental responsibility.

Family Law Act 1975 (Cth) ss 60CC, 65DAA & 69ZT.

APPLICANT:

Mr Khalil

RESPONDENT:

Ms Tahir-Ahmadi

INDEPENDENT CHILDREN’S LAWYER:

Stuart Barr

FILE NUMBER:

ADC

4408

2009

DATE DELIVERED:

7 July 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

15-23 November 2010;
1-9 February 2011;
31 March 2011
1 April 2011;
14 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mellows

SOLICITOR FOR THE APPLICANT:

Legal Services Commission of SA

COUNSEL FOR THE RESPONDENT:

Ms Dibden

SOLICITOR FOR THE RESPONDENT:

McDonald Steed McGrath Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Pickhaver

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Stuart Barr

Orders

That the mother have sole parental responsibility for the child A born on … February 1999.
That A live with the mother.
That on or before 14 July 2011 the father deliver the child A and all his personal belongings to the mother at a place to be agreed between the parties and failing agreement at H Police Station.
That whilst the father remains resident in Australia the father spend time with A in Australia at such times as the parties may agree and in default of agreement as follows:
(a)during school term time commencing on the third Friday in school term after the father delivers A to the mother each alternate weekend from conclusion of school on Friday to the commencement of school on Monday;
(b)commencing October 2011 for the first half of each mid-term school holiday and second half of the December/January school holidays;
when the father is no longer residing in Australia at times to be agreed and in default of agreement each year for two periods of not less than two weeks for each period during school holidays commencing in December 2011/January 2012;
All handovers which take place at the commencement or conclusion of school day or term are to take place at the school attended by A.
All other handovers are to be at a place agreed between the parties and failing agreement at the H Police Station.
The mother ensure that the child A communicates with the father once a week by telephone or Skype.
Within 21 days:
(a)the mother provide to the father Skype details and telephone details; and
(b)the father to instigate and arrange the communication at times to be agreed and failing agreement on Sundays at 7.00 pm (South Australian time).
The father is restrained and an injunction is granted restraining the father from removing, causing or allowing the child A born on … February 1999 to be removed from the Commonwealth of Australia without first obtaining the mother’s written consent.
That the Australian Federal Police place the name of the said child A born on 18 February 1999 on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until further order of this Honourable Court or until A attains the age of 18 years.
That on the expiration of one [1] month the appointment of the Independent Children’s Lawyer is discharged.
Remove all matters from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4408 of 2009

Mr Khalil

Applicant

And

Ms Tahir-Ahmadi

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings concern the competing applications filed by the father Mr Khalil and the mother Ms Tahir-Ahmadi for parenting orders relating to their only child A (“the child”) born in February 1999 who is therefore 12 years of age.

Applications and history of proceedings

The father commenced proceedings in the Federal Magistrates Court on 4 December 2006. The mother filed a Response on the 7 March 2007.
In his Initiating Application, the father sought orders that the child live with him in Iran and proposed that the mother visit Iran to spend time with the child. He also sought orders that the parties have equal shared parental responsibility.
The mother sought orders that the child reside with her in Australia and that she have sole parental responsibility for him. She sought further orders that the father spend time with the child in Australia.
At the trial, both parties indicated that they were relying on their initiating documents and the orders they sought on a final basis remained unchanged.
This matter comes before the Family Court with a long and complex history.
The trial before Federal Magistrate Lindsay commenced in September 2007 and concluded in June 2008 when judgment was reserved.
On 5 November 2008, Federal Magistrate Lindsay delivered his judgment and made the following final orders:
“1. All previous parenting orders be and the same are hereby discharged.
2.All orders of injunction restraining the father from removing the child [A] born […] February 1999 from the Commonwealth of Australia be and the same are hereby discharged.
3.That the said child do live with the father.
4.The father have sole parental responsibility of the said child.
5.The father do all such things as may be reasonably required to facilitate the child spending the following time with the mother on two occasions per year for periods for not less than twenty-one (21) days and not less than twenty-eight (28) days namely in January/February and August/September such time spent to occur in Australia.
6.For the purposes of effecting the time spent referred to in (5) herein:
a.The father do all such things as may be reasonably required to send the said child by commercial aircraft from Iran to Australia and in particular do all such things as may be required to ensure that the child is accompanied by an adult relation;
b.The father meet all costs associated with the return travel of the child and the adult relation.
7.The appointment of the Independent Children’s Lawyer be discharged.
8.All extant applications be otherwise dismissed.”
On 14 November 2008 the mother filed a Notice of Appeal against Federal Magistrate Lindsay’s orders. The mother also filed an Application in a Case on that date seeking that the orders of 5 November 2008 be stayed pending the outcome of her appeal.
On the 27 November 2008 Federal Magistrate Lindsay granted the mother’s Application for a stay and made further orders that the child live with the father and spend regular time with the mother pending the outcome of the appeal.
On the 30 October 2009 the Full Court allowed the appeal, set aside the Federal Magistrate’s orders and remitted the matter back to the Federal Magistrates Court for a retrial.
On the 2 February 2010 the matter was transferred to the Family Court of Australia for determination.
The interim orders in place at the time of the trial in the Family Court of Australia were the orders of 27 November 2008 which provided (inter alia) that:
“2. Until further order:

a. the said child do live with the father; and

b.the father do all such things as may be reasonably required to facilitate the mother spending the following time with the said child:

i.in a cycle of two out of three weekends from the conclusion of school on Friday until the commencement of school on Monday, commencing on 28 November 2008; and
ii.alternate weeks during the Christmas school holidays.”

The trial in the Family Court of Australia commenced on the 15 November 2010. The length of the trial was initially estimated to take seven days. The trial proceeded on 15, 16, 17, 18, 19, 22 and 23 November 2010 when it was adjourned part-heard. It continued on 31 January 2011, 1, 2, 3, 4, 7, 8 and 9 February 2011 and later resumed on 31 March 2011 and 1 April 2011. The trial concluded on 14 April 2011 when judgment was reserved.
At the trial the father was represented by Mr Mellows, the mother by Ms Dibden and the Independent Children’s Lawyer by Mr Pickhaver.
The parties and Independent Children’s Lawyer relied upon a significant amount of affidavit material filed in both the Federal Magistrates Court and the Family Court of Australia.
In the trial in the Family Court of Australia the father gave oral evidence first. Witnesses called by the father were Dr T, a consultant scientist who was the supervisor of the father’s higher degree studies at University 1 and Ms B, the mother of one of the child’s friends who had observed the father and the child.
When the trial did not conclude in November 2010 it resumed in late January 2011, when the father’s oral evidence concluded.
The mother gave oral evidence.
Ms L, Trainee Child Development Psychologist, gave evidence about her interviews and sessions with the child. Ms N, Psychologist, gave evidence about her role which was primarily providing counselling for the mother.
The report of Mr H, an Iranian lawyer was received. Mr H gave oral evidence by telephone link to London.
The father was recalled and gave further evidence, particularly in relation to the attendance of the child upon the Psychologist, Mr S. Mr S, Psychologist then gave evidence about his sessions with the child and conversations he had with the child at various times from October 2010 through to January 2011.
The Independent Children’s Lawyer relied upon the evidence of the Migration Agent, Mr G, who gave oral evidence.
The Family Consultant, Mr M who prepared reports in 2007 and 2010 gave oral evidence.
The mother and father were both recalled to give further oral evidence towards the end of the trial in late March/early April 2011.

The Law

Section 4 of the Act defines abuse as follows:
“… in relation to a child, means:
(a)an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b)a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.”
Section 4 also contains the definition of “family violence”:
“ means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.”
The provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) include the following most relevant to these proceedings
Section 60CC
Determining child’s best interests
(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)Additional considerations are:
(a)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;
(b)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);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)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;
(e)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;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family; if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)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; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

Section 65DAA (1) to (5) provides;
Section 65DAA
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and (sic)
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note 1:Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2:Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

Section 69ZT provides:
Section 69ZT
Rules of evidence not to apply unless court decides
(1)These provisions of the Evidence Act 1995 do not apply to child-related proceedings:
(a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41;
Note:          Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2)The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3)Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a)the court is satisfied that the circumstances are exceptional; and
(b)the court has taken into account (in addition to any other matters the court thinks relevant):
(i)the importance of the evidence in the proceedings; and
(ii)the nature of the subject matter of the proceedings; and
(iii)the probative value of the evidence; and
(iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4)If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
(5)     Subsection (1) does not revive the operation of:
(a)      a rule of common law; or
(b)      a law of a State or a Territory;
that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.

Relevant Background and Chronology

The father was born in 1965 and is presently 45 years of age.
The mother was born in 1969 and is presently 42 years of age.
Both parties were born in Iran and are Iranian citizens.
The father has qualifications as in a professional field. He was employed in a teaching capacity in Iran.
The mother undertook studies in a professional field in Iran and was registered in Iran as professionally qualified in 1996. After undertaking further studies, the mother attained specialist qualifications in her field in Iran in 2003.
The parties were married in Iran on 12 February 1998.
The mother alleged that the father hit her for the first time while she was pregnant with the child. She says that the father struck her repeatedly about the face and split her lip.
The mother says that was continually subjected to physical and emotional abuse by the father. She alleges that such incidents of physical abuse occurred at least every one to two months.
The parties’ child A was born in February 1999. (He was 11 years old at the commencement of the trial. He turned 12 years old before the trial concluded). He was 4 years old when he commenced living in Australia.
The mother alleges that the domestic violence continued after the child was born. She says that the father physically and emotionally abused her in the presence of the child.
In March 2002 the parties separated for approximately 6 months whilst living in Iran. The father attributes blame to the mother alleging that she became violent towards him during an argument. The mother says the father was violent towards her.
The father denies these allegations of violent behaviour.
In May 2003, the father came to Australia on a student visa after obtaining a scholarship from the Iranian Government to complete his higher degree studies in Australia.
As a condition of his contract, the father was required to provide guarantees to the Iranian Government to ensure his return to Iran following the completion of his studies in Australia. The father says that if he does not return to Iran he will forfeit property and money in Iran and family members who acted as guarantors will also be held financially responsible.
The mother and the child joined the father in Australia on dependent visas in September 2003.
It is the mother’s contention that the domestic violence continued after the parties arrived in Australia.
The father wholly denies any allegations of violence made by the mother. He alleges that the mother fabricated such allegations as a way to remain in Australia.
On the contrary, the father makes allegations that the mother has been physically aggressive towards him. The father partly attributes the mother’s alleged aggressive behaviour to her having a medical condition.
The mother gave evidence about one of the incidents of physical abuse in June 2005 alleging that the father hit her across the face and caused bruising and significant pain.
The mother visited her General Practitioner the next morning. The father accompanied her to the appointment. She told the doctor that she had been hit by the father.
Upon the instruction of her General Practitioner, the mother then attended at Hospital 1 on the 27 June 2005 for x-rays which concluded that there was no broken bone.
The mother says her General Practitioner contacted her about returning to see her without the father. The mother says she did and that her doctor advised her to contact the police and referred her to the Migrant Women’s Service.
The mother says that she decided not to press charges against the father and had decided to stay with him for the sake of the child.
The mother says that the child’s behaviour towards her deteriorated over time. She said that the child became disobedient, disrespectful and often hit her when he became upset.
The mother alleges that the child was influenced by the father and mimicked his behaviour.
The parties and child returned to Iran for approximately one month in July 2006 for a holiday.
The parties separated on the 17 October 2006 when the mother left the former matrimonial home with the child.
Following the separation, the father did not have any contact with the child for over 5 months.
The mother sought refuge at a women’s shelter before obtaining permanent accommodation.
On 20 October 2006, the mother applied to the Department of Immigration and Citizenship for a Protection Visa for herself and the child.
In late October 2006 the mother obtained a domestic violence restraining order against the father in the local Adelaide Magistrates Court.
The mother says that following separation, the child’s behaviour continued to be difficult to manage. She obtained the assistance of a counsellor (student psychologist) to assist. She claims to have seen a gradual improvement in the child’s behaviour.
The mother also says that she employed the use of a pad and bell device to control the child’s persistent bed wetting issues.
On 4 December 2006 the father initiated proceedings in the Federal Magistrates Court seeking final and interim orders with respect to the child, including a recovery order for the return of the child to the father.
On 23 February 2007 the mother and the child were granted permanent protection visas which entitled them to permanent residence in Australia.
The mother and the child were subsequently located and the mother was served with the Federal Magistrate Court proceedings.
On 14 March 2007 Federal Magistrate Lindsay made an order appointing an Independent Children’s Lawyer for the child.
On 21 August 2007 the father obtained an order from an Iranian court granting him custody of the child. Although the father had full particulars of the mother’s solicitors the mother was not served with these proceedings. She was not made aware of the Iranian Court proceedings until after the order was made. The father’s evidence about failing to notify the mother was unconvincing.
During the interim stages of the proceedings, Federal Magistrate Lindsay made various orders for the child to live with the mother and spend regular overnight time with the father.
On 5 November 2008 Federal Magistrate Lindsay made final orders providing for the child to live with the father in Iran.
Following the appeal by the mother the Full Court overturned this decision on 30 October 2009 and remitted the matter to the Federal Magistrates Court for reconsideration.
In December 2009 the Department of Immigration cancelled the father’s visa. The father applied to the Migration Review Tribunal for permission to remain in Australia. His appeal was successful. He was subsequently granted a visitor’s visa which he expects will be revoked upon finalisation of these proceedings.
The proceedings were transferred to the Family Court of Australia in February 2010.
The mother claims that after spending time with the father, the child’s behaviour regresses. His difficult behaviour returns. She says that the child has been aggressive, argumentative and violent towards her.
The mother also says that the child reverted back to bed wetting after returning from spending time with the father.
The mother says that the child was difficult to manage for approximately a week following return from his father’s care.
The child is currently in year 7 at Primary School. He speaks both English and Farsi.
The extended family of both the mother and father reside in Iran.
The trial was adjourned part-heard in late November 2010. When the matter resumed in February 2011 the Court received evidence about periods when the child had been refusing to attend school and complained of stomach pains.
By the time the trial concluded in late March/early April 2011, the child had settled back into regular routine of attending school and was reportedly achieving well at school, socially and academically.

Significant Main Issues

In the latter part of the judgment the factors referred to in section 60CC are considered. However, the significant main issues to be determined in this matter relate to:
(1)the evidence concerning family violence and who was responsible for such family violence;
(2)the orders which would best ensure that the child can maintain a meaningful relationship with both of his parents. Relevant factors include the father’s visa and contractual arrangements which require him to return to Iran (with uncertainties surrounding his capacity to return to Australia) and the mother’s declared intention to remain resident in Australia and not visit Iran;

Family Violence

In the father’s affidavit and oral evidence he firmly denied ever hitting the mother or that he was responsible for any violence towards her or in the presence of the child. He maintained that the mother was violent towards him.
During cross-examination by the Independent Children’s Lawyer the father was asked to explain why he told the mother’s General Practitioner that the mother had hit her face on a door in June 2005 when the mother had visited the doctor with an injury to her nose. The father was present when the mother told the doctor that the father had hit her. When asked why he had told the doctor that the mother had hit her face on the door, his response was “I just guessed that”.
The mother’s affidavit evidence and oral evidence maintained her allegations that she had been the victim of assaults by the father. She denied being violent towards the father, other than agreeing that there was a possibility that he was scratched when she defended herself on one occasion.
The mother was cross-examined at length about the allegations of violence and the alleged inconsistencies in her behaviour.
In oral evidence the mother adequately explained her travel to Australia to join the father here, her brief return to Iran with him for a holiday in 2006 and her ongoing residence with him until October 2006. Such evidence by the mother did not damage her credibility in relation to the violence she had suffered at the hands of the father.
Whilst there was some minor inconsistencies in the evidence of the mother, such inconsistencies were not sufficient to challenge the overall context and reliability of her evidence about the father’s violent, controlling behaviour towards her.
The affidavit evidence of the mother, her oral evidence, the annexures to her affidavits and exhibits support the mother’s allegation that she was the victim of violence at the hands of the father. Notwithstanding the father’s vehement denial of responsibility for any violence, the evidence supports the finding which I make that the father has assaulted the mother, at times in the presence of the child A.
In particular, the evidence indicates that the father assaulted the mother in Iran in March 2002, when the mother sustained injuries to her face and arm. The mother reported the incident to the police and was medically examined.
I prefer the mother’s evidence about the assault in June 2005. The mother’s evidence was that in June 2005 the father hit her. The next day the mother and father went to the General Practitioner where, in the presence of the father, the mother told the General Practitioner that the father had hit her. The Police Incident Report included the reference to the following:
“When the victim called her husband a ‘shit’ he punched her to the mouth and nose with one of his fists using great force … victim states she thought this would end the incident but her husband continued to punch her a second time to the face and then kicked her left leg once … victim was crying and child was present and crying.”
The mother confirmed this evidence.
The father’s evidence, particularly in relation to the father suggesting that the mother had hit her face on the door, was not convincing.
Considering the evidence of the mother, together with the evidence of Ms N and Ms L, and notwithstanding some of the inconsistencies which the father’s counsel highlighted, I am satisfied on the balance of probabilities that the mother has been the victim of violent and controlling behaviour by the father and that the child has at times been involved in the incidents and observed the father’s violence.
The mother also alleges that the father was violent towards the child, hitting him and smacking him. The father again, vehemently denies these allegations.
In conversation with Ms N shortly after the parties separated the child referred to the father doing bad things to him and his mother, but did not provide any details.

Parents capacity to travel between Iran and Australia

The mother is now an Australian citizen. As far as she is aware she continues to be an Iranian citizen. The mother strongly asserted in her evidence that she will not return to Iran. One of her reasons was that she strongly believed that if she returned to Iran it would be a requirement that the father give her permission before she could return to Australia. She also believed that the father would cause trouble for her and make her life difficult in Iran.
Mr H gave evidence that the Iranian Courts would not recognise any parenting order of the Family Court of Australia. His evidence was that the order the father had obtained from the Iranian Court giving him custody of the child would prevail. Mr H’s evidence was that if the parents did not agree arrangements for the child to spend time with his mother, the mother would need to make application to an Iranian Court.
Mr H also agreed that whilst the mother and father remain married, the father would have to give permission for the mother to leave Iran if she returns.
The evidence of the Migration Agent, Mr G was that, notwithstanding the mother had Australian citizenship and an Australian passport, she would still be subject to control by the Iranian authorities if she returned to Iran.
The father’s student visa expired years ago. His permission to remain in Australia has been extended due to the ongoing proceedings in the Federal Magistrates Court and more recently because of the Appeal and further proceedings in the Family Court of Australia. Evidence indicated that his visa had been extended only whilst these proceedings have not been concluded.
I accept the evidence that it is likely that at the conclusion of these proceedings the father will be required to return to Iran, although, there was some evidence to suggest that the father might be able to apply for a visa to remain in Australia. I accept the father’s evidence that he needs to return to Iran to carry out the terms of his contract with the Iranian Government. Because he has been provided with the scholarship to study in Australia he is required to return to Iran and work for the government. Failure to do so would have significant financial consequences for himself and his family members who have guaranteed his compliance.
I am satisfied therefore that the father has little choice but to return to Iran to resume employment.
The evidence about the father’s ability to obtain permission from both the Iranian Government and the Australian Government to return briefly to Australia on regular occasions to spend time with the child was not conclusive.
The father asserted that it would be difficult for him to get permission to leave Iran whilst he was still fulfilling the terms of his contract with the Iranian Government and that this would be for a period of approximately seven years.
There is little reliable independent evidence about the restrictions that the Iranian Government might place on the father to the extent that he would be prevented from spending brief periods in Australia in order to spend time with his son.
The evidence of Mr G, the Migration Agent, was that the father’s situation was complex. I accept his evidence that if the Iranian Government criteria were satisfied then the father may have no difficulty in obtaining a tourist, or extended visitor visa in order to spend time with the child in Australia. He conceded however that there was a possibility that the delegate considering such an application for a visa could possibly bring into account the mother’s allegations about the father’s violence which she made when she applied for her protection visa.

In cross-examination by counsel for the mother, Mr G agreed that it would be surprising if a tourist visa to visit his son in Australia were not granted to the father, but at the same time acknowledged that all of the history of the matter might need to be considered.
The Court is unable to determine with any certainty the prospects of visa applications being granted by the Australian Government or the attitude of the Iranian Government to the father’s travel.
The evidence however clearly indicates that the mother has a strongly held firm view that it is not safe for her to return to Iran and that she proposes not to do so.
When the Immigration delegate made a decision to grant the mother a Protection Visa, allowing her to remain permanently in Australia, the delegate gave consideration to a report of the United States of America State Department concerning human rights in Iran. The report is dated 2005. This report was received in evidence as a document which was considered by the delegate when granting the mother’s Protection Visa. There was opposition to the Court receiving the US State Department Report as evidence of the facts asserted therein. The evidence of the decision of the delegate of the Minister was based on information available to the delegate.
The delegate’s findings include that the mother “fears harm from her husband. She also fears that the state will not protect her because of her gender”. The Delegate also found that the mother has “a genuine fear of harm and that there is a real chance of persecution occurring” and that the mother’s “fear of persecution as defined under the Refugees Convention, is well-founded”. (Page 10 of delegate’s findings).
Evidence was given about proposals for the child to travel between Australia and Iran in the company of a relative. The mother was, however, strongly opposed to the child travelling to Iran based upon her firm belief that the custody order obtained by the father and the provisions of the law in Iran would create a situation which would make it highly likely that the child would not be returned to Australia. In the circumstances this belief is reasonable.
The evidence therefore establishes that if the child returns to reside with the father in Iran it is unlikely that he will be able to maintain a meaningful relationship with his mother. Communication between the child and his mother would be limited to telephone or email communication.
The evidence also indicates that it is also unlikely that if the child remains in Australia in the care of his mother that he would be able to maintain a meaningful relationship with his father, other than by telephone or computer communication.
The loss of a meaningful relationship is only less likely if the father takes appropriate steps to obtain approval from the Iranian Government and the Australian Government for regular visits to Australia.
The provisions of the Act require consideration of the presumption of joint parental responsibility and whether a parent should have substantial and significant time.
The evidence clearly indicates that the parents are unable to carry on any form of civil communication, blaming each other for the breakdown of the marriage and the difficult prolonged litigation. The substantiated allegations made by the mother about the father’s violence also makes it inappropriate for the Court to consider making an order for equal shared parental responsibility.
The evidence indicates that it is most likely that the mother will be residing in Australia and the father will be residing in Iran. This also makes any consideration of equal shared parental responsibility inappropriate.
Because of the distance involved between Iran and Australia and the previously discussed possible difficulties for each parent to travel between the two countries, it is also inappropriate to consider the child spending substantial or significant time with each of the parents.
In order to establish what is in the best interest of the child, it is necessary to consider the evidence and the findings of the Court in the context of the requirements of s60CC.
In s60CC the primary considerations are:

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;

As previously indicated in this judgment it is likely that the child will not be able to maintain a meaningful relationship with one of his parents in the future. Any relationship to be maintained may be limited to the relationship which can be promoted through telephone and computer communications until the child is an adult.

(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence;

The Court finds on the balance of probabilities that the father has been violent towards the mother and that such violence has from time to time occurred in the presence of the child. This is a significant factor.
The additional considerations are:

(a)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 wishes;

The parties separated in October 2006 over four and a half years ago. The child is now aged 12.
The reports of Mr M and his oral evidence provide significant detail about the child’s expressed wishes. In 2007 the child was interviewed by Mr M at both his father’s home and his mother’s home. When interviewed at his father’s home he was definite about his desire to live with his father. On page 6 of the first report of Mr M the following is reported:
“[The child] was definite in his opinions. He said, ‘I want to live with my Dad’. The writer asked him why he wants to do this. [The child] replied. ‘He is nice, he plays with me, he takes me to soccer and buys me things like remote control cars’. [The child] showed the writer two expensive looking remote control cars that his father has bought for him.
The writer asked [the child] what it is like living with his mother. [The child] answered, ‘It is not so good with Mum, she shouts at me to go in my room’. The writer asked him if his mother shouts at him because he is naughty. [The child] replied, ‘I don’t do bad things’. The writer asked [the child] if his mother is ever nice to him. He replied, ‘She is sometimes nice, she is nice, nice’. [The child] explained that he meant that when his mother is nice to him she is ‘really nice’.”
During that interview the child indicated to Mr M that he wanted to live with his father in Iran. He explained that he had not told his mother that he wanted to live with his father because she would get cross.
The Family Consultant also interviewed the child at his mother’s home. At page 10 of the report the following appears:
“The writer asked [the child] if he remembered what he had said about with whom he wants to live. [The child] said, ‘I want to live with my Mum I mean Dad. Sometimes I get mixed up and I call Dad Mum and I call Mum Dad’. The writer asked [the child] why he wants to live with his father. [The child] replied, ‘Because he is nice, he is pleasant he takes me to soccer and to the ceremony’. [The child] was unable to explain clearly what he meant by the ceremony. The writer took him to mean religious ceremonies.’
When dealing with the issues in his report under the heading “Assessment”, Mr M included the following:
“[The child] lacks the emotional and intellectual capacity to make a clear and definite decision about with whom he should live and about which future he should pursue. [The child] is too immature to make an informed decision about where his future lies. [The child] is easily influenced and swayed in his opinions by his parents. He has no understanding of the issues his parents are contesting.
[The child’s] comments about his parents suggest that he enjoys a good relationship with both of his parents. His preferences for living with his father seem to be significantly influenced by his father’s abilities to buy him better toys. [The child] has no clear understanding as to what it would be like to live without one of his parents. [The child] has no understanding as to how his relationships with either parent would be affected if one was to live in Iran and the other was to live in Australia.”
The second report is based upon interviews with the parents and the child in June 2010. The child was then 11 years old. Interviewed at the mother’s home, the child was asked with which of his parents he wanted to live and whether or not he wanted to live in Australia or Iran. Mr M’s report includes:
“…[the child] presented as a confident and intelligent boy. He was far more subdued and thoughtful than he had been when the writer had previously interviewed him.
[The child] was clear in his opinions about with whom he would like to live. He said, ‘I don’t know who I want to live with.’ The writer asked him if there are any differences between his parents or in his relationships with them. [The child] replied, ‘There is no difference between them.’
The writer asked [the child] how he though (sic) about himself, does he consider himself Australian or Iranian. [The child] answered, ‘I’ve never thought about that.’ The writer asked him if he had any thoughts about whether he would prefer to live in Iran or in Australia. [The child] answered, ‘No, I’ve never thought about Iran or Australia.’ Later in the interview, [the child] said, ‘I wouldn’t care if I lived in either Iran or Australia.’”
[The child] told the writer that it was too hard for him to make any decisions about with whom he lives or about in which country he lives. [The child] said that he loves his parents equally.”
Subsequently, the child was interviewed at his father’s home. The report contains the following:
“[The child] approached the interview in a friendly and chatty manner. The writer began the interview by asking him if he had any new thoughts about with whom and where he should live since the writer had last spoken with him. [The child] answered, ‘I don’t know exactly who I want to live with.’ He paused and added, ‘Dad most likely.’
The writer asked why [the child] wants to live with his father more than his mother. [The child] answered, ‘Well he doesn’t get as frustrated as Mum. Sometimes she yells and all that.’ The writer asked him why his mother yells. [The child] replied, ‘I don’t know why. I drop the remote control and she says do you want to break it?’
The writer asked [the child] if he was also saying that he would like to live in Iran. [The child] answered, ‘I would like to live in Iran, YEEEAAAH.’ The writer asked [the child] if he has told his mother where he would like to live. [The child] said, ‘I haven’t told Mum.’ The writer asked him why he has not told his mother what he wants. [The child] replied, ‘I don’t know why, I had a reason and I forgot (the reason).’
The writer asked [the child] if he had requested his father to writer (sic) a letter to the Court. [The child] said, ‘I asked Dad to write a letter to the Court. I forget exactly what I said. If I had to choose it would be my Dad.’ The writer asked [the child] why he had not said this when the writer had interviewed [the child] at his mother’s house. [The child] responded, ‘I was still thinking (about it) at Mum’s.’”
When considering his conclusions under the heading of “Assessment”, Mr M referred to the complex issues and in part of the assessment said:
“[The child] is living with his father. It could be expected that he would or might favour his father in the present conflict. [The mother] would claim that [the child] is being strongly influenced and intimidated by his father to agree to living with his father and returning to Iran. It is likely that both parents have attempted to influence [the child] one way or the other. Some of their attempts will have been overt some will have been far more subtle.
[The child] does not present as a child who is intimidated or frightened of either of his parents. [The child] remains highly manipulative. It is highly likely that the current conflict through the Courts has to some extent undermined the confidence of both parents in setting limits on and imposing boundaries on [the child]. Currently, [the child] possibly has a considerable amount of power in deciding with which parent he will live. This is an unenviable position for any parent to find themselves in.”
In his oral evidence, Mr M confirmed that the child was a very confident, intelligent boy. He also described the child as highly manipulative. He confirmed that he perceived the child to have “lots of power and no responsibility”.
The father gave evidence that he wanted to comply with the child’s wishes.
When assessing the child’s wishes the Court takes into account Mr M’s expert evidence, and in particular that Mr M agreed that when the child was with his father he would follow him and when with his mother, follow her.
All of the evidence presented to the Court supports a conclusion that the child has been caught up in the ongoing acrimonious dispute between his parents.
The evidence of the various witnesses called by the parties and the Independent Children’s Lawyer indicates that the child has reacted to his mother’s attempts to discipline him.
Considering the background to the interviews with the child and taking into account all of the evidence of Mr M and the other psychologists’ evidence, the child’s express wish to live with his father in Iran should not be seen as a determinative factor.

(b)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);

There is some possibility, although only limited, that if the child resides in Australia with the mother the father may be able to obtain permission from the Iranian and Australian Governments to regularly spend time with the child in Australia. There is no likelihood that the child could enjoy the company of his mother in Iran, if the child resides in Iran. There is limited likelihood if the child resides in Iran with his father, the child could travel from Iran to Australia to spend time with his mother because any order made in Australia requiring the same would not be enforceable in Iran.
The evidence clearly indicates a strong relationship between the child and his father. He has also maintained a relationship, from a distance, with his extended family in Iran.
The mother acknowledges, and the evidence indicates, that there have been difficulties in the relationship between the mother and the child, particularly since the child began to reside with the father after the orders made in the Federal Magistrates Court. The Court accepts the evidence of the experts, Ms N and the Trainee Psychologist, Ms L, about the earlier difficulties in the relationship between the mother and the child and the background explanation for those difficulties.
The Court has the benefit of the evidence of Mr M, who prepared the Family Assessment reports in September 2007 and June 2010, after interviewing the parties and the child. His reports, together with his oral evidence, concluded that the child appears to enjoy a good relationship with both of his parents.
The evidence clearly indicates however that the mother has had, and continues to have, some difficulty in maintaining a proper parental relationship with the child, who reacts in an unfavourable way to the mother’s attempts to direct or discipline him. The mother also complains about the aggressive and resistant behaviour of the child towards her at times.
The mother recognises the difficulties and tensions in the relationship between herself and the child and has taken steps to overcome these with some limited success.
I accept the evidence of the mother that after a short time with her that the child’s behaviour improves and settles to a more amenable relationship.
If the child were to return to live in Iran it is likely that he would be able to enjoy a better relationship with his extended family who all reside in Iran.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

The father alleges that the mother has behaved in a way which shows she is unwilling to facilitate a close and continuing relationship between the father and the child. In particular, the father refers to the behaviour of the mother at the time of separation in October 2006 when she took the child, without any warning to the father, and thereafter kept the child away from him until proceedings were taken and she was located.
The mother explains her behaviour at this time on the basis that she was fearful that if the father located her that the child would be taken from her and returned to Iran without her consent.
The mother said that at first she was not aware that steps could be taken to prevent the child being removed from Australia whilst Family Court proceedings continued.
Having accepted the mother’s evidence in relation to the father’s violence, I am satisfied that her behaviour in October 2006 until the proceedings were commenced in December 2006 needs to be seen in this context.
The father maintained that he was willing to facilitate and encourage a close relationship between the child and the mother. His evidence was that he would follow the child’s wishes. The father confirmed that he would have no objection to the child living with the mother full time if he was told by the child that this was what the child wanted. The father’s evidence was however that the child had told him from time to time that he did not want to spend time with the mother.

(d)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;

The child has been residing in Australia since 2003. Until the parties separated in October 2006 he was residing with both parents. Between October 2006 and until shortly after the decision in the Federal Magistrates Court in November 2008, the child resided primarily with his mother and spent time with his father.
Since shortly after the decision of Federal Magistrate Lindsay in November 2008, the child has been residing primarily with his father and spending two weekends out of three and school holiday time with the mother.
The child is now 12. He was four when he started living in Australia. He has attended school in Australia. He has not attended school in Iran.
He has established strong social relationships in Australia.
The separation from either of his parents is likely to be a significant impact upon the child emotionally and psychologically. This may impact upon his future development.

(e)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;

There is considerable practical difficulty and expense in travelling between Iran and Australia. These difficulties relate to visa requirements and the expense and practical arrangements of travelling between Iran and Australia on a regular basis.
As previously discussed it is more likely that the father may be able to make arrangements to travel to Australia to see the child than that the mother will change her view about never returning to Iran. As previously discussed there are also serious practical difficulties relating to the child travelling from Iran to Australia (whether that be for a visit to the mother or a return after visiting the father) because of the inability of the mother to obtain enforcement of any Australian order in Iran.

(f) the capacity of:

(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;
to provide for the needs of the child, including emotional and intellectual needs; and

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

Both parents have the capacity to provide for the child’s practical day to day needs and long term educational needs, whether that is in Iran or Australia.
The mother and father both challenged the other’s attitude towards the responsibilities of parenthood. The mother maintained that the father’s violence towards her set a bad example and that as a result the child had become aggressive and demanding.
Both parents blame the other for the child’s difficulties in late 2010/early 2011 when he would not attend school.
Both parties gave evidence about the child bed-wetting which continued over a number of years. The mother said that the child was still bed-wetting recently, whilst the father said it had stopped whilst the child was in his care. There is insufficient evidence to determine the cause of the bed-wetting and whether any differences in parental attitudes or responsibilities cause or are related to the child’s bed-wetting problem. It is clear however that the child has been aware of the ongoing difficulties between his parents since at least 2006.
The mother conceded that her attempt to discipline the child by sending him to spend time out in the garage had, in retrospect, not been a good idea.
There was no evidence of any difficulties in the father’s discipline of the child.
Mr M’s reports drew attention to the dispute between the parties as to their various methods, with the mother accusing the father of spoiling the child and influencing the child with gifts, making it more difficult for her to discipline the child or control any inappropriate behaviour.

(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

The father maintains that it would be in the child’s best interest to return to live with his father in Iran, whilst the mother maintains that it would be in his best interest to remain in Australia with her.
Since the child was four he has been in Australia where he has made friends. For most of his life and for the significant recent years, he has participated in the Australian culture. At the same time he has continued to receive information from both his mother and father about his Iranian background and culture. I am satisfied that if the child remains in Australia, his mother will continue to encourage his interest in, and connection with, the Iranian culture and his extended family, although such interaction would be substantially more limited than if he were living in Iran with his father.

Conclusions

Counsel for the Independent Children’s Lawyer submitted that many factors are finely balanced, but that the issue of domestic violence as a primary factor is significant.
I have preferred the mother’s evidence about the father’s violent conduct towards her and in the presence of the child. The mother has taken reasonable steps to overcome any difficulties in her relationship with the child which difficulties need to be seen in the context of the father’s behaviour and the ongoing litigation.
Another significant factor is that the child has now been residing in Australia since September 2003. Notwithstanding, the difficulties in his family relationships he has progressed well at school. He has been described as highly intelligent. The evidence suggests that he loves and is loved by both of his parents. If he remains living in Australia with his mother, the future appears more certain than the unknown factors which would arise if he were to return to Iran to reside with his father.
Although there are significant difficulties in maintaining a relationship with his father if he were to remain resident in Australia, there is a greater possibility of this than the mother ever visiting Iran again.
Having considered all of the evidence and the relevant legislation the best interests of the child require the child to remain in Australia in his mother’s care whilst, if possible, having some time with his father in Australia.

I certify that the preceding one hundred and seventy-two (172) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 7 July 2011

Associate:

Date: 7 July 2011

[2011] FamCA 521

7 July 2011

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