Khoury & Ganem
[2021] FCCA 869
•1 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Khoury & Ganem [2021] FCCA 869
File number(s): SYC 6380 of 2011 Judgment of: JUDGE BENDER Date of judgment: 1 April 2021 Catchwords: FAMILY LAW – parenting – the parties’ applications in relation to parenting arrangements for their 10 year old daughter – where the child has not spent time with the Father since 2015 – where the child spent inconsistent time with the Father prior to 2015 – the Mother alleges serious family violence perpetrated by the Father – where the child has significant anxieties and fears about spending time with the Father that stem from the Mother’s own fears and anxieties about the Father – the Mother is seeking sole parental responsibility and that the child spend no time with the Father – the Independent Children’s Lawyer supports sole parental responsibility and no time with the Father
HELD – orders made for the Mother to have sole parental responsibility and for the child to spend no time or communicate with the Father – orders made for the child to undergo therapeutic counselling to address her fears and anxieties
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA Cases cited: Goode & Goode [2006] FamCA 1346 Number of paragraphs: 210 Date of hearing: 30 March 2021 Place: Melbourne Counsel for the Applicant: Mr McCloskey Solicitor for the Applicant: Marcou and Associates Counsel for the Respondent: Ms Foong Solicitor for the Respondent: Unite Legal Solicitor for the Independent Children's Lawyer: Ms Wilkinson
Table of Corrections 24 May 2021 End-certification date amended to ‘24 May 2021’ ORDERS
SYC 6380 of 2011 BETWEEN: MR KHOURY
Applicant
AND: MS GANEM
Respondent
ORDER MADE BY:
JUDGE BENDER
DATE OF ORDER:
1 APRIL 2021
THE COURT ORDERS THAT:
1.The parenting Orders made on 14 June 2014 be discharged save for Order 11 (the Watch List Order) which remains in full force and effect.
2.The Mother have sole parental responsibility for the child X born in 2010 (“X”).
3.X live with the Mother.
4.X spend no time or communicate with the Father save and except in accordance with X’s wishes.
5.The Father be restrained by injunction from attending at or being within 500 metres of any school X attends.
6.The Mother do all things necessary to obtain therapeutic counselling for X to assist X to better address her fears and anxieties, separate them from those of the Mother, learn resilient ways to better manage her fears and develop her independence.
7.The Father may write a letter to X which the Independent Children’s Lawyer, subject to its suitability as determined by the Independent Children’s Lawyer, is requested to read to X, such letter is to be provided to the Independent Children’s Lawyer by 15 April 2021.
8.The Independent Children’s Lawyer is requested to explain these Orders to X.
9.Victoria Legal Aid is requested to fund the Independent Children’s Lawyer to remain involved in this matter for a further 3 months to:
(a)enable compliance with Orders 7 and 8 herein;
(b)assist the Mother in arranging a suitable counsellor for X and to confirm X has commenced attendance upon such counsellor; and
(c)provide X’s counsellor with a copy of the Judgment delivered in this matter and a copy of these Orders.
AND THE COURT NOTES:
A.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Khoury & Ganem is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Revised from Transcript)JUDGE BENDER:
Introduction
This is a very sad parenting matter, particularly so for the parties’ 10 year old daughter, X born in 2010 (“X”).
X has spent no time with her Father since August 2015. The Father is seeking interim orders that he and X attend ongoing therapeutic reunification therapy at his expense and, subject to the recommendations of the therapist, he spend supervised time with X.
The Mother is seeking final orders that she have sole parental responsibility for X, X live with her and that X only spend time with the Father in accordance with her wishes.
The Independent Children’s Lawyer seeks that orders be made in the terms proposed by the Mother. The Independent Children’s Lawyer also proposes there be a restraint on the Father attending X’s school.
Background
The Father was born in Country B on in 1976 and he is aged 44 years. The Father is currently unemployed. After the breakdown of his marriage with the Mother in these proceedings, the Father remarried. He and his second wife are now separated. He has two children from his subsequent marriage, C who is five and D who is three. There are current proceedings before the Federal Circuit Court in relation to C and D. C and D currently spend alternate Fridays to Monday and alternate Fridays to Saturday with the Father.
The Mother was born in Country B in 1983 and she is aged 37 years. She has not re-partnered. The Mother is employed fulltime in an administrative position.
The Father moved from Country B to Sydney in 2001.
The parties married in Country B in 2006. It was an arranged marriage. The Father returned to Sydney after the marriage and the Mother joined the Father in Sydney in late 2006.
The Mother returned to Country B in 2009 in anticipation of X’s birth. It is the Mother’s evidence she did so at the insistence of the Father as he wanted X to be born in Country B. It is the Father’s evidence that it was the Mother’s choice to return to Country B for X’s birth as she wanted the assistance of her family. The Father did not travel to Country B for X’s birth.
Because of visa difficulties, the Mother and X did not return to the Father in Sydney until 2011. The Mother’s evidence is this delay was caused by the Father. The Father’s evidence is this is because the Mother refused to return until the Father paid the Mother’s brother $4,000.
It is the Mother’s evidence that she was subjected to the Father’s control, abuse and violence throughout the marriage. She describes him as not only being physically violent towards her but also making unnecessary and frequent demands of her night and day, controlling how she dressed and her movements, being financially controlling and preventing her from having a telephone or answering the door.
It is the Mother’s evidence that the Father’s abuse worsened after she returned from Country B with X. She describes him as slapping her, choking her, grabbing her hair, and banging her head on the wall, often in the presence of X.
It is the Mother’s evidence that she reached breaking point on 14 September 2011 when the Father physically assaulted her when she didn’t finish cooking him his breakfast. The Mother left the parties’ home with X and reported the incident to the New South Wales Police. Photographs were taken at that time showing bruising on the Mother. Separation occurred on this date. Police obtained a family violence order for the protection of the Mother and X. The Father was charged with assault following this incident, to which he pleaded guilty.
In October 2011, the Mother and X relocated to Melbourne. The Mother obtained a further intervention order in Victoria for a period of two years for the protection of herself and X.
In July 2013, the Mother reported the Father to the Police. She alleged the Father had threatened her family in Country B, including threatening to kill her brother if she did not withdraw the intervention order, pay the Father some money and give him X.
In 2011, proceedings were commenced in the Federal Circuit Court in Sydney. Whilst the history of these proceedings is unknown, what can be gleaned from the material before the Court is as follows:-
•In 2013, the Father travelled from Sydney to Melbourne over an eight month period to spend supervised time with X.
•The Father was in Country B for approximately eight months in 2014 for his second marriage.
•Final parenting orders were made by consent on 12 June 2014. The orders provided that:-
•the parties to have equal shared parental responsibility for X;
•X live with the Mother;
•X spend time with the Father upon his return to Australia:-
•for the first four weeks each Thursday and one weekend day at times and dates to be accommodated by E Contact Service;
•thereafter for eight weeks each alternate weekend Sunday to Monday and each alternate Thursday till Friday;
•thereafter each Friday to Sunday for a period of three months; and
•thereafter each Thursday to Sunday.
X did spend time with the Father between 2013 and August 2015. The Mother’s evidence is the Father was inconsistent in spending time with X without explanation and only spent time with X when it suited him.
It is the Father’s evidence that it was the Mother who failed to comply with the Court orders and made it very difficult for him to see X consistently.
With the exception of the 11F Child Inclusive Conference, the Family Report interviews and the attempted unification counselling ordered in the current proceedings, the last time the Father spent time with X was in August 2015.
The Father explained he stopped seeing X and did not seek to enforce the orders in 2015 because the Mother’s family in Country B pressured his second wife, who was in Country B with their daughter C at that time, to tell the Father she would not return to Australia and he would not be able to see C if he pursued time with X.
The Father alleges the Mother’s family in Country B also threatened harm to his family if he were to pursue a contravention application against the Mother.
The Father did not seek to spend any time with X from August 2015 until he separated from his second wife in August 2017.
On 16 February 2018, the Father filed an Initiating Application seeking parenting orders and a Commonwealth Information Order as he did not know the Mother’s whereabouts.
On 28 March 2018, orders were made for a Commonwealth Information Order, for the Mother to file answering material, and otherwise adjourning the matter until 15 May 2018. On 15 May 2018, there was no appearance by the Mother. It is unclear whether the Mother had been served with the Father’s Application. The matter was adjourned to 12 July 2018 and orders made for the Mother to file answering material, which she did on 9 July 2018.
On 12 July 2018, orders were made for a Child Inclusive Conference pursuant to section 11F of the Family Law Act 1975 (Cth) (“the Act”). That conference was to take place on the morning of 17 July 2018. The matter was adjourned to 2.15pm the same day.
In the Memorandum to Court prepared by Family Consultant Ms F dated 17 July 2018, she states under the heading “Risk Factors”:
•“The Mother alleges ongoing family violence including verbal, physical and emotional abuse perpetrated against her by the Father to which X was exposed. The Mother described the Father as significantly controlling during the relationship and that he would control what she wore, where she went, and who she spoke to. He also controlled all of the finances.
•The Father advised he was charged with assault and pleaded guilty because he was naïve and believed that would bring about a reconciliation between them. He denies the Mother’s allegations of family violence and suggests that the bruising documented by Police at the time was self-inflicted.
•Allegations the Father physically injured members of the maternal family in Country B are also denied by him.”
Under the heading “The Child” Ms F writes:
•“X presents today as a well-mannered, somewhat solemn and reserved child. She spoke positively about her schooling and sports which she has been doing for four years, her friends and engaging in art and craft activities with her Mother. Her Mother had provided her with an age-appropriate explanation as to why she was attending today.
•She does not remember much about the visits with her Father, other than the fact that he only allowed her to watch Arabic programs on the TV, and she does not speak or understand the language.
•She could not recall what he looked like and did not think she would recognise him.
•She is aware she has a younger sister, but did not know about her brother.
•X said she was scared to see her Father but could not articulate why.
•She said she would not like to have “a sleepover” at his house as she is afraid of the dark and co-sleeps with her Mother.
•Despite her being reluctant to see her Father today, they were observed briefly together. X did not greet her Father or acknowledge him when he walked into the room. She was sitting on the couch. He went over to her smiling and sat next to her. X moved to the end of the couch and hugged a cushion to her chest.
•The Father appeared to be insensitive to her discomfort and moved closer, trying to show her photographs of her with him and photos of her siblings. X shook her head. She did not engage or interact with him on any level.
•After five minutes, the report writer suggested that the Father leave and X nodded. However, the Father remained where he was and continued to try and engage X who appeared to be on the verge of tears. He agreed to leave when it was suggested that X was clearly distressed and he needed to respect her feelings.
•After he left, X said that she felt really nervous and scared and did not want to see him again. She says she feels really safe with her Mother, but not with her Father. This is entirely understandable, given she has not seen him for three years when her relationship with him was still being developed.
•It would appear that if X is to spend any time with her Father, given the destructed nature of her relationship with him, she will need time to build a relationship in which she feels safe and secure.”
Under the heading, “Future Directions’ Ms F recommended:
“(1)X commences spending time with her Father at E Contact Service or formerly supervised by a private supervisor once a week for a period of two hours.
(2)Given the allegations of family violence and allegations of violence toward the maternal family the appointment of an Independent Children’s Lawyer would be of assistance to the Court
(3)Subpoenaed Documents from Victoria Police would also assist the Court.
(4)The Father would benefit from attending a Parenting After Separation Programme such as that provided by the Family Relationship Centre in Suburb G.
(5)Further assessment via family report after a period of supervised visits may also assist the Court.”
After Ms F’s report was received on 17 July 2018, the matter was adjourned to 21 September 2018 and an Independent Children’s Lawyer was appointed. An order was also made for the preparation of a Family Report to be released by 12 December 2018. The Report Writer was asked to address inter alia:-
“(b)should X commence spending any time with the Father, given she has not spent any time with him since 2015, her reluctance to do so and the Mother’s lack of support for such time because of her allegations of serious violence in their relationship;
(c)is X’s reluctance to spend time with the Father influenced by the Mother’s attitude;
(d)the Father now has two younger children, who he does see (proceedings DGC3572/2017 currently before Judge O’Sullivan). X’s right to have a relationship with her unknown siblings.”
The Family Report of Family Consultant Ms H, dated 12 December 2018, was released to the parties and the Independent Children’s Lawyer on 14 December 2018.
Whilst Ms H’s report will be canvassed in more detail later in this judgment, Ms H recommended, amongst other things, that the Father and X engage in a therapeutic reunification process to reintroduce X and her Father and that X spend supervised time with the Father at E Contact Service.
Detailed consent orders were made on 19 December 2018, which provided as follows:-.
“1.That the child X born in 2010 live with the Mother.
2.That the parties and the child attend upon Dr J for therapeutic counselling for the purpose of therapeutic reunification between the Father and child and follow all lawful directions of Dr J.
3.That the Mother and the Father attend upon Dr J for the purpose of counselling, with respect to facilitating a relationship between the child and Father.
4.Commencing 11th February 2019, the Father communicate with the child via skype with the frequency to be guided by Dr J.
5.The Father spend supervised time with the child at E Contact Service at times nominated by the Contact Centre.
6.The Father enrol in and complete a Men’s Behaviour Change Program and provide evidence of completion to the Solicitor for the Mother and the Independent Children’s Lawyer.
7. The cost of the therapeutic counselling with Dr J shall be paid as follows:
(a)Each of the parties shall be responsible for the cost of any individual sessions;
(b)Any sessions involving the child and/or any Report as to the progress or outcome of the counselling be paid equally by the parties.
8.The Independent Children’s Lawyer provide a copy of the Family Report dated 12th December 2018 and Applications and Responses filed by each of the parents in these current proceedings and supporting Affidavits to Dr J.
9. The matter be adjourned to the 17th June 2019 at 9.45 am.
10. Both parties are hereby restrained from:
(a)Abusing, insulting, belittling or otherwise denigrating the other in the presence or the hearing of the child or permitting any other person to do so;
(b)Discussing these proceedings with or in the presence or the hearing of the child, or permitting any other person to do so.
AND THE COURT NOTES THAT:
A.That the Independent Children’s Lawyer will meet with the child prior to the adjourned date;
B.That the parties submitted their Applications to E Contact Service in September 2018 and there is a further 3 month waiting period as at today’s date.
C.That the parties are to commence therapeutic counselling with Dr J commencing on or about the 8th February 2019.”
Dr J met with the Father, Mother and X individually on 8 February 2019. On that date she assessed the parties and explained to them the process for the therapy which was booked to commence on 26 February 2019.
It is an understatement to say the reunification session with Dr J between the Father and X on 26 February 2019 did not go well.
In Dr J’s affidavit, sworn on 25 March 2021, she deposes at paragraphs 6 to 8 as follows:-
“(6) The first session between X and the Father was unsuccessful with the Father seemingly unable to follow my direction and the child becoming visibly distressed.
(7)The session was terminated by me early, and I felt I had to use my body to shield the child from the Father as she was crouched on the couch, crying and trying to retreat from the Father.
(8)The Father presented as fixated and rigid, and seemed incapable of considering the child’s wishes above his own agenda.”
Annexed to Dr J’s affidavit is a copy of correspondence sent by her to the Independent Children’s Lawyer dated 14 June 2019 that reads:-
“In regards to the observations that took place between the Father and the child, it was the writer’s assessment the Father was not attuned to the child, he was intrusive, controlling and unable to focus on the child’s feelings or regulate his behaviour in response to the child. The child was crouching on the couch with her head down, crying, backing away from her Father while he waived pictures of her as a younger child and of her siblings. His view was overpowering and intimidating, and the child was distressed, he continues to pressure the child.
The writer intervened and sat next to the child to comfort her and asked the Father to stop and sit back from the child, so was not experienced as intrusive. The writer tried to draw his attention to the child’s distress; however, he continued to pursue his view and fixation towards the child. The session was terminated. The Father continued to express his opinion to the writer that the Mother was to blame.
It was the writer’s impression the Father has rigid, fixed views; he appeared controlling fixated and was not able to regulate his emotions in response to others.
It was the writers assessment, reunification, was not deemed appropriate for this Father and child, at this time.”
In paragraphs 10 to 12 of Dr J’s affidavit, she deposes:-
“10.Not included in the letter annexed to this affidavit was a description of the Father’s behaviour after the session was terminated.
11.The Father remained standing outside my rooms and I locked the door as he was very angry at my decision to terminate the session.
12.I confirm that since the initial intake and the events details above I have not been approached by the Father, nor his solicitor, in an attempt to recommence the reunification process. I conceded I would not have willingly conducted the process myself however the Father has not sought to progress his Application by attempting to address how poorly this session went.”
X has not spent time with the Father since the unsuccessful attempt at reunification on 26 February 2019.
The Evidence
The Father
The Father relies on his trial affidavit sworn 22 March 2021. The Father also gave vive voce evidence at the final hearing.
It is the Father’s evidence that it is in X’s best interest to have a relationship with him and her two younger siblings. He argues that there is a real risk if X does not have the benefit of a relationship other than with the Mother she will become isolated and will have no supports if anything should happen to the Mother. This fear was raised by X herself with Ms H.
The Father adamantly denies he was violent to the Mother during their relationship, or subsequently. He also strongly denies his family have threatened the Mother’s family in Country B and says that it was the Mother’s family who threatened his family in Country B.
The Father admits to pushing the Mother on one occasion only at the time of separation. It is otherwise his evidence that the Mother is deliberately making up the allegations of violence against him in order to prevent X from having a relationship with him.
The Father stated repeatedly when giving his vive voce evidence that the reason why X is resistant to spending time with him is because the Mother has conducted “massive parental alienation” and “brainwashed X”. He suggested that the Mother has told X she will be punished if she doesn’t do what the Mother wants and that the Mother was responsible for X’s reaction to him during the reunification session with Dr J.
It is the Father’s evidence he does not believe the Mother is afraid of him. The Father explained that it is the culture in the part of Country B that he and the Mother are from that when parents’ divorce, they conduct parental alienation against each other. He stated that, “me and my daughter are caught in an ideology war outside the courts.”
The Father was very critical of the manner in which Dr J undertook the reunification therapy. It is his evidence that Dr J did not prepare or assist him before he was brought into Dr J’s room where X was sitting on the couch. It is his evidence he did not know X was going to be in the room before he came in himself.
It is the Father’s evidence that when he came into the room with Dr J and saw X, he sat down on a chair approximately two metres from X, who was on the couch. He said ‘hello’ to her and then pulled his chair closer to show her photos on his phone of X with him when she was younger and of her siblings. He explained he did this because she had responded positively to these photos when he saw her for the 11F Child-Inclusive Conference and the Family Report. It is the Father’s evidence that Dr J then intervened and took X from the room. It is his evidence that he and X spent seven minutes together at most.
It is the Father’s evidence that when Dr J returned to the room, she told him the session was over, that she became agitated with him and pointed her finger towards her head and said there was “something wrong with him.” At paragraph 20 of his trial affidavit, he states:
“20…suddenly, Dr J then stood up and said, ‘you know what, reunification is not suitable for this case and you need to leave.”
The Father denies he was rude or aggressive to Dr J and suggests that he was respectful and patient throughout both his interviews with her.
It is the Father’s evidence that he and X had a positive relationship up to 2015. He believes X has no reason to fear him. He argues that given there has been a watch list order in place since 2019, there is no risk he will kidnap X or remove her from Australia. The Father has never sought orders that X live with him and has only ever wanted to spend time with her. He therefore argues that all the anxieties and fears X has about him and spending time with him are a result of the negative things said to her by the Mother. He notes this is apparent from the matters raised by X when she spoke with Ms H.
The Father believes that with reunification therapy with a professional who has not been influenced by the Mother, and with the Mother’s support, X will be able to redevelop her relationship with him and arrangements could ultimately be in place that reflect the 2014 final orders.
The Mother
The Mother relies on her trial affidavit filed 1 March 2021. The Mother also gave vive voce evidence at the final hearing.
It is the Mother’s evidence she is truly fearful of the Father. She does not believe it is in X’s best interests to have a relationship with him given the Father’s conservative religious views, his violence, his lack of respect for women and his controlling behaviours.
It is the Mother’s evidence that she was subjected to violence and controlling behaviour throughout her relationship with the Father. It is her evidence that when the parties first married, she accepted the Father’s behaviour as, in Country B, the Husband has all the control in the marriage. After X was born, the Mother’s evidence is she decided the Father’s violence was not appropriate which is why, when he assaulted her in September 2011 in front of X, she went to the Police.
The Mother denies she has told X the Father will kidnap her and take her to live with him if she were to spend time with him. She could offer no explanation for why X told Ms H that that is what the Mother has told her.
The Mother denied her family in Country B have threatened the Father’s family or that they influenced his second wife not to return to Australia if he continued to spend time with X. It is the Mother’s evidence she and her family do not know the Father’s second wife and she “would not recognise her if she saw her in the street.”
The Mother told Ms H during the preparation of the report, “To be honest, I don’t want X to have any relationship with her dad.” When asked in cross-examination if this was how she genuinely feels, the Mother replied, “Yes, because of the fear I have and because of what he has done to me and my family.”
Dr J
As set out previously in this judgment, Dr J unsuccessfully conducted therapeutic reunification counselling with X and the Father in February 2019. Dr J’s affidavit, sworn 21 March 2021, is before the Court. Dr J also gave vive voce evidence at the final hearing.
In her vive voce evidence, Dr J explained that on 8 February 2019, she interviewed each of the parties and X separately. In those interviews, Dr J obtained background information from the parties and, it is her evidence, explained how the therapy would take place including that, on the next occasion, the Father and X would see each other.
It is Dr J’s evidence that on 26 February 2019, when the Mother and X arrived, the Mother was seated in a room upstairs and Dr J spent approximately 15 minutes with X preparing her to meet her Father. She explained that she and X undertook lots of child-focussed activities such as colouring and games to relax X and to create a child-focussed environment for when the Father joined them.
Dr J agreed she did not spend time with the Father or “prepare” him on 26 February 2019 before she brought him into the room. She observed that given the Father’s feedback in response perhaps she should have done so but that it was not her usual process, as she explains the process to the parents in the first session.
Dr J described that on entering the room, the Father told X he had missed her and her brother and sister missed her too. He took a seat about two metres away from X. X was quite closed off. The Father drew his chair closer to X and began showing her photos of herself and her siblings that were on his phone. Dr J explained that, as X was clearly unhappy with this, she asked the Father to pull back and suggested they talk about how X was feeling and where X was at that time. It’s her evidence the Father did not pull back and was not taking in the queues being given to him by X. Dr J then went and sat on the couch next to X to interpose herself between X and the Father and to give X some support and comfort as she was visibly distressed.
Dr J formed the view that because of X’s level of distress and the Father’s failure to pick up and respond to X’s queues, it was necessary to end the session.
Dr J returned X to her Mother and then returned to her office to provide the Father with feedback. It is her evidence that when she explained to the Father the cause of X’s anxiety and that she didn’t think therapy was appropriate at that time, the Father became heated, aggressive and was pointing his finger at her telling her she had been influenced by the Mother. It is Dr J’s evidence that she experienced the Father’s behaviour at this time to be aggressive, intimidating and threatening.
Dr J denied she became agitated or put her finger to her head and said that the Father had some mental health issues. She responded, “I am never unprofessional in that way.”
Dr J stated she asked the Father to leave. She walked him to the door whilst he kept talking to her and threatening he would report her to the minister.
During her vive voce evidence, Dr J noted the Mother’s anxieties and fears of the Father, including her concerns he would kidnap X or take X from her care.
Dr J described X as a sad, worried and anxious child whose fears of the Father, such as he might kidnap her, had been translated from the Mother.
Dr J was asked what insight the Mother had of how her anxieties and fears were influencing and impacting X. Dr J expressed the view that the Mother didn’t have the capacity to reflect on or develop those insights because of the extreme level of her distress at the time that she saw her. Dr J opined the Mother would need a lot of therapy, counselling and work and very clear and strict court orders if she was ever to accept it is in X’s best interests to have a relationship with her Father.
Dr J was asked whether she felt the Mother’s anxieties and fear of the Father were genuine. Dr J responded that she thinks the Mother’s fears of the Father are genuine and are based on the Mother’s concerns and beliefs about the Father.
Dr J was asked whether she was of the view further reunification therapy between X and her Father would assist or have a chance at success. Dr J was not optimistic that it would. Dr J was asked if further reunification therapy would have a negative impact on X. Dr J expressed the view that, because of X’s level of anxiety and fear, it could be quite traumatising for her.
Dr J was also concerned about the Father’s capacity to adjust his behaviours and response to X in a therapeutic setting and to be able to focus on X’s needs and emotions. Dr J described the Father as being very fixed in his views on why X is resistant to seeing him, that being that the Mother alienating X from him.
Dr J expressed the opinion that the better outcome for X is for her to have personal counselling to address her anxieties and fears so they could be reality tested and enable her to separate her fears from those of her Mother and to learn resilient ways to better manage her own fears.
Dr J expressed the opinion that it is possible that, with personal counselling that allowed her to understand and address her fears of the Father and to separate her feeling from those of the Mother, X will want to re-establish a relationship with her Father as she matures and becomes more curious about him and her paternal family.
Ms H
At the time that Ms H prepared her report, she was a Family Consultant with the Federal Circuit Court. As noted, Ms H prepared a Family Report dated 12 December 2018. Ms H also gave vive voce evidence at the final hearing.
In the family report, Ms H discusses her interactions with X in paragraphs 50 to 53. Those paragraphs read:-
“50X grinned and reported, “mum doesn’t like dad, she hates him, I can tell because she never calls him, she never talks to him, and when we are in public, mum always says that dad might be there and he will try to take you away, she says it whenever we are in the city.” The writer asked X, “What about today in the city?” and she replied, “Today in the restaurant across the road Mum said not to play on the stairs at lunch, she said don’t go down the stairs, your dad might be there and he might try to take you.” X was asked how this made her feel, and she stated, “I don’t know,” while bursting into tears. She wiped her face with a tissue and continued crying while maintaining eye contact with the writer. X stated, “If I see my dad, I have to move to another country. Mum said”
51X advised, “if I didn’t have to move [to another country] I would be happy, but I still want to live with my mum, I am scared of my dad.” When asked why she was scared, X replied, “I don’t know why, I don’t know; I’m just scared of him.” She advised that sometimes she worried “that I’m alone with mum, and I forget about dad. It’s good because mum gets me everything I want, she does everything for me, and if I saw dad, mum would be upset cause mum hates him and I hate him”
52During discussions about her worries, X became very, very tearful and upset and stated that she worries, “if mum is late to pick me up, if she got hurt, there is no one else to pick me up, no one.” This statement may be indicative of X being isolated or discouraged from developing important relationships with other adults in her life, and fear of being separated from Ms Ganem.
53During discussions about seeing her father in the playroom, X immediately became resistant and tearful, stating, “I don’t’ want to see my dad he is mean,” and “if mum was outside the door I would see him. I don’t know why.” A safety plan was made and X agreed to go to the toilet in the playroom if she wished for Mr Khoury to leave the room.”
Under the heading “Children and their Relationship”, Ms H states, at paragraphs 54 to 55 and part of 56 the following:-
“54X’s experience of her father appears to be based on her mother’s fear, real or imagined. X associates her father with potentially being abducted and taken to Country B when she is likely to cross paths with him. However, during observations, X did not appear to be experiencing fear; rather, she appeared to be resentful and angry when he was present.
55X’s experience of her mother appears to be one of safety and trust, however with some enmeshment and difficulties being separated from Ms Ganem. Ms Ganem may also adopt the need to be in close proximity to X.”
Ms H describes X’s interaction with her Father in paragraphs 57 to 59 as follows:-
“57Mr Khoury arrived in the playroom and X glanced at him, smiled, and looking back at the computer screen while continuing to play the computer game. Mr Khoury pretended that he could not find X, stating, “Where is X, where is X, I can’t find her.” Mr Khoury approached X and held up his hand gesturing to ‘high five’ however; X looked at the writer, smirked, then smiled at father and walked to the toilet. A few seconds later, X came out to the toilet. The writer did not ask Mr Khoury to leave the playroom as X was observed to smile at him with the absence of fear at any time; no tears, no red face, no signs of anxiety or trauma.
58X presented as angry and rejecting of Mr Khoury. Her face appeared to show minimal expressions and her tone of voice was terse, with one-word responses provided to her father. Mr Khoury attempted to engage X however; she ignored him and withdrew eye contact and attention. Mr Khoury stated, “X, X, look at these photos of us, X?” X continued playing the computer game while Mr Khoury become increasingly desperate to engage with X, placing photos in her face. X made groaning sounds and stated, “No”
59After ten minutes, X again went into the toilet and activated the safety plan, despite presenting as angry not fearful. The writer advised Mr Khoury about the safety plan and that he now needed to leave the playroom, based on X’s wishes. Mr Khoury agreed however, appeared to be very worried and stated, “I’m very concerned, she used to see me at E Contact Service, and now it’s worse; I’m really worried.””
Under the heading “Evaluation” Ms H identifies the issues in this matter at paragraph 65 as follows:-
“65The issues, which became evident during the assessment, are the highly contrasting accounts of events provided by Mr Khoury and Ms Ganem in relation to alleged aggression, controlling behaviour, cultural identity, beliefs systems and parenting. The parties reported information about each other, which was highly contrary to self-reported information, and both parties appeared to engage in high levels of presentation management. Due to these factors, neither party’s perspectives could be accurately tested. Based on the presentation of each party, and the information provided, an evaluation of both parties’ perspectives and presentation management is explored. Mr Khoury accounts for these discrepancies by claiming that Ms Ganem is “throwing everything at me, making false allegations to stop my time with X; she is angry, she is lying.” Ms Ganem accounts for these discrepancies by identifying that Judicial staff are responsible for decisions made regarding time between X and Mr Khoury and responsible for the consequences of these decisions. Ms Ganem also stated; “he’s not changing,” and “he never spent one dollar on her.””
Ms H considered each of the parties’ proposals in paragraphs 75 and 76:-
“75Ms Ganem’s proposals and behaviours may be perceived by her as acting protectively towards X, and that she is genuinely trying to achieve safety and freedom for herself and X by having no relationship with Mr Khoury. It is also possible that Ms Ganem harbours anger and resentment towards Mr Khoury for not meeting her expectations for financial support as a father and husband, or that he is attempting to discredit Mr Khoury by making claims related to stereotypes and fear about his alleged religion and cultural identity; for example, claiming that Mr Khoury is “extreme, a freedom fighter, anti-government,” (which he denies), that he refuses to “change a nappy” (which he denies) and that he wanted X to be an “Country B not Australian,” (which he denies).
76Mr Khoury’s proposals appear to be child focused and reasonable, based on an acknowledgment that despite Final Orders in 2015 by consent, providing for him to spend time with X, time should occur based on X’s needs. For example, Mr Khoury stated; “X needs to be close to both parents, I have an open heart to see what she needs, I need to understand what she is used to in her environment. Mr Khoury proposed for supervised changeovers at E Contact Service to support the reunification process. Ms Ganem proposed for Mr Khoury to attend Men’s behaviour Change and a Parenting Orders program, however she also stated, “To be honest, I don’t want her to have any relationship with her dad.” The impact of this attitude on X is a deterioration in her relationship with her father, as well as a disproportionate fear, and perception that he represents a threat to her safety, identity, freedom, and life in Australia. As indicated by X’s experience of her father, “If I see him, he will take me to another country, mum said.”
Ms H made the following observations in respect to X at paragraphs 77 to 79:-
“77X did not present with a fear response during the short time she was observed with her father. X’s rejection of her father appears to have increased, despite time with him decreasing. This indicates that another factor is contributing to X’s refusal to see her father. The interruptions in time with Mr Khoury are likely to increase anxiety and discomfort during reunification. It also possible that X’s rejection of Mr Khoury is influenced by an alignment with her mother, who may be reinforcing X’s behaviour. X’s need to be close and accepted by her mother further increases her fears of losing this relationship, she stated, “if mum is late to pick me up, if she got hurt, there is no one else to pick me up, no one.” X was very upset and tearful when making this statement.
78Based on her age (8 years) and stage of development, it is not appropriate for X to experience such high levels of anxiety, fear and distress triggered by physical separations from her mother, and not just from contact with her father. Ms Ganem could explore more adaptive ways to protect X without jeopardising her social relationships, confidence, freedom and feeling safe enough to explore her world.
79It would be beneficial for X to see a Child Psychologist to complete an assessment and provide intervention to explore her relationship with her father and to manage ore reduce her fears in response to seeing her father or being separated from her mother. In addition, X’s fear is likely to be reduced with structured exposure to her father, in a safe environment, whereby she can learn that she may be able to spend time with her father and feel safe, contrary to her fears. In the future, if Ms Ganem continues to reinforce her own fears and X’s fears, it is possible that X will develop an independent view in the future regarding her relationship with her father, and potentially reject her mother for not supporting this relationship, regardless of safety mechanisms in place.”
Ms H’s recommendations are contained in paragraph 83 of her report as follows:-
“83Based on the available information and in the absence of evidence to the contrary, the following recommendations are respectfully offered to the Court for consideration:
•For X to live with Ms Ganem.
•For Mr Khoury and X to engage in a Therapeutic reunification process through E Contact Service Suburb K to reintroduce X and Mr Khoury.
•For Mr Khoury to commence twice-weekly skype contact with X for up to 30 minutes between 6pm and 6:30pm on a Monday and Thursday.
•For X to commence supervised time with Mr Khoury to reintroduce her to her father, for six visits as soon as possible, on a regular or weekly basis at E Contact Service in Suburb K. In the absence of any concerns raised by E Contact Service, for Mr Khoury’s time to recommence as per Final Orders dated 12th June 2014.
•For X to be engaged with a Child Psychologist, as agreed by both parties, and for both parties to be consulted in this process and contribute to necessary costs. For a copy of this report to be provided to the Psychologist.
•For Mr Khoury to attend a Men’s Behaviour Change Program through L Families, Suburb M.
•Further, for the children’s benefit, the parties should be restrained from denigrating the other parent and/or their parenting skills”
In her vive voce evidence, Ms H confirmed she had read Dr J’s affidavit.
Whilst Ms H agreed that there are benefits in X having a relationship with her Father that include having an extended family and a relationship with her siblings, it should only occur if it can be done safely and is not emotionally distressing to X.
When questioned if further reunification therapy would be harmful for X, Ms H was concerned it had been two and a half years since she saw X and it was apparent there had been no shift in her relationship with her Father. It is Ms H’s evidence that it is possible such therapy could be too distressing for X. She noted that the risk to X becoming too distressed by the process would have to be mitigated as much as possible. Ms H observed that when she saw X she had put in place a safety plan to assuage X’s anxieties, which was X would say she needed to go to the toilet, and that X activated her safety plan within a few minutes. Ms H therefore stated:-
“It’s looking to me there may be not much more than can be done. You wouldn’t want to be pushing X beyond her wishes and having to end the observation.”
Ms H was asked whether she felt the fear, anxiety and distress she observed in X were genuine. She responded “yes”.
Ms H was also asked if she felt the Mother’s fears and anxieties in respect to the Father were genuinely held, whether there was a factual basis at the back of those fears or not. Ms H indicated that she believed the Mother’s fears and anxieties to be genuine.
Ms H agreed with Dr J’s opinion that it would be better for X’s emotional development and needs for her to have personal counselling to assist her to separate her fears and anxiety from those of her Mother, rather than another attempt at reunification therapy.
Ms H also agreed with Dr J that with personal therapy, X could choose to have a relationship with her Father in the future. Ms H noted there was a real risk that if forced to undergo further reunification therapy against her wishes, with her current fears and anxieties, X may well resist ever resuming a relationship with her Father in the future.
The Law
Best interests of the child
Part VII of the Family Law Act1975 (Cth) (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes section 60B(3) which deals with Aboriginals and Torres Strait Islanders):
“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.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Section 60CA of the Act provides that:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
To determine what is in the best interests of the child, the court must consider the matters set out in section 60CC(2) and section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the court, must be considered and assessed in the context of each of the parties’ proposals. The court should then make a decision as to which of the parties’ proposals, or such other arrangement as the court determines given the court is not bound by the parties’ proposals, is in the children’s best interests.
Section 60CC(2)
Section 60CC(2) of the Act sets out the primary considerations that the court must consider when determining what is in the best interests. They are as follows.
Section 60CC(2)(a) – The benefit of the child having a meaningful relationship with both of the child’s parents
X has a very close relationship with her Mother.
X has no relationship with her Father. She has spent only limited time with him between 2013 and 2015 and has spent no time with him since.
Ideally, it would be in X’s best interests to have a meaningful relationship with both her parents. This would enable her to have the support of her Father and a relationship with her two younger siblings.
However, the issue in this case is whether the benefit to X of having a meaningful relationship with her Father is outweighed by the emotional and psychological impact on X of being forced to have such a relationship given her high levels of distress and anxiety about spending time with her Father.
Section 60CC(2)(b) – The need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
This subsection goes to the very heart of this matter.
The Mother argues it is not in X’s best interests to have a relationship with the Father because of the risk to X of being exposed to the Father’s violence, controlling behaviour, disrespect for women, and his extreme religious beliefs to which it is the Mother’s evidence she was exposed during their relationship.
The Father denies all the Mother’s allegations of his alleged inappropriate behaviour and accuses her of lying about them to the Court and to X to deliberately undermine X’s relationship with him.
As has been set out in this judgment, therapeutic reunification counselling to assist in rebuilding the relationship between X and the Father was not successful and was a distressing and unhappy experience for X.
Dr J and Ms H both expressed the view that a further attempt at such therapy could be too distressing for X, especially given her current levels of anxiety and fear and her resistance to spending any time with the Father.
Therefore, the real question for this Court is whether the risk to X of a meaningful relationship with the Father is outweighed by the emotional and psychological risk to X in forcing her to undertake further counselling in the hope that a relationship with the Father might be achieved.
Section 60CC(3)
Section 60CC(3) of the Act sets out the additional considerations the Court must consider when determining what is in the child’s best interest.
Each of the matters set out under that section will be considered in turn where applicable in this matter.
Section 60CC(3)(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
X does not want to see the Father. She is fearful of him. She fears he will kidnap her if she sees him or that she will have to live with him and not see her Mother.
Those fears are her Mother’s. Whilst the Mother denies ever saying these things to X, she has clearly heard the Mother expressing these concerns whether that be directly to X, or X overhearing her Mother saying it to others.
There is no basis for these fears as there is no evidence the Father has at any time threatened to kidnap X or wants her to live with him. There has been a watch list order in place preventing the parties from removing X from the country since 2015. Neither party is seeking to have that watch list order removed. The Father has only ever sought time with X in all the Applications he has brought before the Court.
Whatever is the origins of X’s anxieties and fears, the evidence of Dr J and Ms H are that the fears are concerns genuinely held by X and they cannot be disregarded by this Court when determining this matter.
Section 60CC(3)(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)
As set out in this judgment, X has a close and loving relationship with her Mother and is solely dependent on her for her care and support.
X does not have a relationship with her Father or younger siblings. She spent limited time with her Father between 2013 and 2015 and no time with him since August 2015. She has never met her siblings.
X spends some limited time with those of the Mother’s family who are in Australia. X does not have any relationship with her extended paternal family.
Section 60CC(3)(c) – 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;
(iii) to communicate with the child
The Father has not participated in the decisions made for X and has only spent very limited time with her.
Whilst the Father places the blame for this entirely on the Mother, he chose not to pursue time with X between August 2015 and February 2018. He explains this was because his second wife, pressured by the Mother’s family, told him she would not return to Australia from Country B with their then baby daughter if he pursued his relationship with X.
The Mother denies her family in Country B pressured the Father’s second wife to take this position. Whilst it is unknown if the Father’s second wife told the Father he was not to see X if their relationship was to continue, the reality is the Father still chose not to pursue his relationship with X for nearly three years.
After the unsuccessful reunification therapy with Dr J in February 2019, the Father has not made any further application to the Court for alternate therapy and has allowed two years to pass without pursuing his time with X.
Section 60CC(3)(ca) – The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
The Mother solely maintains and supports X. The Father does not pay child support.
Section 60CC(3)(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
Given X has not spent time with her Father for five and a half years, if orders were made that X spend no time with her Father there would be no real change in her current circumstances.
Section 60CC (3)(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
This consideration is not relevant in this matter.
Section 60CC(3)(f) – The capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
The Mother has provided all of X’s care for all of X’s life. X is reported to be doing well at school, enjoys extracurricular activities and has a good friendship group.
The real question relating to the Mother’s parenting is her capacity to provide for X’s emotional needs.
It is the clear evidence of Dr J and Ms H that X’s relationship is perhaps too close or enmeshed with her Mother. At 10, X still co-sleeps with her Mother and is unable to happily separate from her.
X is an anxious and fearful child, not just in relation to whether she should spend time with her Father, but what would happen to her if anything happened to her Mother.
Dr J and Ms H agree that X’s anxieties and fears of her Father are those of the Mother which she has taken on as her own.
It is the strong recommendation of both Dr J and Ms H that X engage in personal counselling to assist her to reality test her fear and anxieties and to help her develop resilience and obtain independence from her Mother.
Whilst the Mother expressed a willingness to obtain counselling for X, it was concerning she put a caveat on that that it had to be affordable.
The Court must have a concern about the Mother’s own needs to have X continue to be solely dependent upon her and the Mother’s capacity to allow X to emotionally separate from her as she gets older.
The Father’s fixation on the Mother being the sole reason for X’s reluctance to have a relationship with him and his lack of empathy for X’s circumstances and emotional needs also raises questions about his capacity to put X’s needs ahead of his own fixed ideas and beliefs.
Section 60CC(3)(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 parties’ Country B culture has impacted on their relationship.
It is the Mother’s evidence that in Country B, the Husband is all powerful in a marriage and that this is how the Father behaved himself during their relationship. Whilst initially accepting of this, it is the Mother’s evidence that after X was born she decided the Father’s behaviour was unacceptable and she wanted X to grow up with the freedoms she did not have.
The Father’s evidence is that in the part of Country B which he and the Mother are from it is the culture that after separation parties to the marriage try and alienate the children from the other and their families and that this is what the Mother is doing.
The Father also spoke of the differences in culture between Country B and Australia, telling Dr J that in Country B the Husband is all-powerful, but in Australia the Husband has no power.
Section 60CC(3)(h): if the child is an Aboriginal child or 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
This subsection is not relevant.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The Mother is a responsible parent and has devoted her life to X’s care, perhaps too much so at times on an emotional level.
The Father loves X and wants to be a part of her life. However his extended absences from her life between 2015 and 2018 were by choice, and he did not pursue alternative avenues to establish his relationship after the reunification therapy with Dr J failed. He has not always demonstrated that his relationship with X is his priority.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family.
Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(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.
The Mother’s allegations of the Father’s violence during and after the relationship are well set out in this judgment, as are the Father’s denials of those allegations.
I am in no doubt the Mother experienced her relationship with the Father as violent and that her relationship with the Father has and continues to have a profound impact on her.
Whether the level of the Father’s violence was at the level described by the Mother cannot be determined some 10 years later. What is clear is that the Mother now believes it happened and that belief will be very difficult to shift.
It is most unfortunate the Mother appears to have not had any family violence counselling to assist her to better manage her anxieties and fears of the Father. She seems somewhat “stuck” in her past. It is impacting her own happiness and sense of security.
The Mother’s fears and anxieties are also having a significant impact on X. There is a real need for X to have professional assistance to enable her to separate her anxieties from those of her Mother and to build resilience and independence.
Section 60CC(3)(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
X and the Mother need all litigation to end. Both need to know with certainty what their path forward is.
The Court orders must take this into account.
Section 60CC(3)(m) – Any other factor or circumstance that the Court thinks is relevant
The Independent Children’s Lawyer proposes orders be made as follows:
“1. The Mother have sole parental responsibility for X;
2. X live with the Mother;
3.The child spend no time nor communicate with the Father save and except in accordance with the Child’s wishes;
4.The Father be restrained by injunction from attending at, or being in close proximity to, any school the child attends.
The Independent Children's Lawyer submitted that the overarching concern in this matter is that neither party was primarily focussed on X’s best interests, but rather the personality and character faults of the other.
The Independent Children's Lawyer submits that the Court should give considerable weight to X’s now longstanding and consistent reluctance to spend time with the Father.
The Independent Children's Lawyer was concerned that following the personality clash between the Father and Dr J, the Father did very little to pursue alternative interventions to try to repair his relationship with X.
It is the Independent Children’s Lawyer’s submission that neither party has the emotional resources to set aside their own adult issues and put X in the forefront of their thinking in a way that would allow her to have a relationship with her Father.
The Independent Children's Lawyer indicated a willingness to pass on a letter to X from the Father in which, it would be hoped, he would tell X he loves her that he hopes one day she will want to get to know him, and when that occurs, he will welcome her with open arms.
Presumption of Equal Shared Parental Responsibility
Section 61DA of the Act provides that the Court must apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility for them.
This presumption is rebutted if there are reasonable grounds to believe that either of the children’s parents have engaged in abuse of the children or family violence, or where there is evidence that it would not be in the child’s best interests for their parent to have equal shared parental responsibility for those children.
The Mother and Independent Children's Lawyer seek orders the Mother have sole parental responsibility for X.
The Father seeks an order for equal shared parental responsibility for X in line with the 2014 final consent orders.
It is submitted on behalf of the Mother, an order for equal shared parental responsibility is not appropriate given:-
•The presumption is rebutted because of the Father’s violence.
•The Mother’s genuine fears of the Father, and the resultant inability by her to be able to communicate with him.
•The Father has no relationship with X or knowledge of X’s needs.
•The reality that the Mother has been effectively exercising sole parental responsibility for all of X’s life.
The Father argues he wishes to be actively engaged in all aspects of X’s life going forward.
The parties have not communicated since their separation 10 years ago and it is clear from their evidence they will be unable to do so going forward.
The Father had very limited involvement in X’s early life and none whatsoever in the last five and a half years.
The Mother will remain X’s primary carer whatever order the court makes. She is genuinely fearful of the Father and her already extreme anxieties of the Father would be exacerbated if she is required to consult with the Father on any major long-term decisions relating to X.
There is a history of violence between the parties. Whilst the Father denies he was violent, there have been two intervention orders for the Mother and X’s protection and the Father has been convicted of assaulting the Mother.
For these reasons, I am of the view that the presumption for equal shared parental responsibility is rebutted and the order that best meets X’s best interests are for the Mother to have sole parental responsibility for her.
Consideration of equal time or substantial and significant time
Where parents have equal shared parental responsibility for a child, section 65DAA of the Act requires the court to consider the child spending equal time or substantial and significant time with each parent.
Even when an order is not made for equal shared parental responsibility the Full Court in the matter of Goode & Goode [2006] FamCA 1346 held the Court should still consider whether such orders are in the child’s best interests.
The Mother seeks orders X spend no time with the Father because of the risk he poses to her due to his history of violence and strong religious beliefs.
The Father seeks therapeutic intervention to repair X’s relationship with him and that whilst that repair is taking place, they spend supervised together. Long-term he seeks the orders made in 2014 be reinstated which would see X spending time with him Thursday to Sunday every week.
The Independent Children’s Lawyer proposes X spend no time with the Father.
Which of these proposals are in X’s best interests is what will determine X’s living arrangements.
Conclusion
As noted, this is a very sad case.
At its centre is a 10 year old girl who I am in no doubt is much loved by both her parents.
X has lived in her Mother’s primary care since birth. She only lived with both her parents for 4 months between the ages of 9 and 13 months.
After the parties separated in December 2011, X spent no time with her Father until 2013 when she spent supervised time with him for a period of eight months at E Contact Service.
For approximately eight months in 2014 the Father travelled to Country B where he remarried.
On 12 June 2014 final parenting orders were made which provided for X to live with the Mother and spend graduated increasing time with the Father which would culminate in her spending time with the Father each week from after school Thursday to 10:00am Sunday.
There was some compliance with the Court orders in 2014 and 2015. The Mother’s evidence is that the Father often failed to attend his time with X. The Father's evidence is that the Mother did not comply with the Orders. All time between the Father and X ceased on 23 August 2015 and other than for formal assessment on two occasions in 2018 and one attempt at reunification therapy in early 2019, X has spent no time with her Father since August 2015.
The Father commenced these proceedings in February 2018. His explanation for the delay in doing so is that his second wife did not support him having a relationship with X. It was only after he separated from her that he was able to bring this application.
The Mother is seeking orders that X spend no time with the Father except in accordance with her wishes.
It is the Mother’s evidence that she sees no benefit in X having a relationship with the Father because of her experience of him being physically violent, disrespectful of women, emotionally and financially controlling and because of his traditional and extremist Muslim beliefs.
The Father seeks orders that he and X commence further reunification therapy with a therapist other than Dr J and whilst that therapy is being undertaken, X spend supervised time with him. Ultimately, the Father seeks that living arrangements for X contained in the June 2014 orders be reinstated.
The Father adamantly denies the Mother’s allegations that he was in any way violent or controlling of her during the relationship or that he holds extreme or traditional religious beliefs.
It is the Father’s evidence the Mother is making up the allegations against him to alienate X from him and to deliberately undermine X’s relationship with him. The Father describes the Mother as brainwashing X to fear him and that X’s anxieties and fear of him are as a direct result of the Mother’s actions.
It is the Father’s evidence such behaviours by the Mother has a cultural basis as in the area of Country B from which he and the Mother are from it is common practice by parties when they divorce.
X was interviewed by Ms F for the Child Inclusive 11F Conference, by Ms H for the Family Report and by Dr J for the therapeutic reunification counselling. All three experts described X as anxious and fearful and as being highly resistant to seeing or spending time with the Father.
On each occasion with the experts, they had to intervene and stop the observation between X and the Father because of X’s distress and discomfort in the Father’s presence. On each occasion the experts observed the Father to continue to try and engage X in the face of her distress and to not be empathetic to or respect X’s feelings and boundaries.
The Father was very keen on each occasion to show X pictures of her as a younger child with him to remind her of their relationship and to show her photos of her younger siblings who she has not met and who he wants her to have a relationship with.
Despite the Father’s belief the Mother is not actually fearful of him and is lying about this in order to prevent X having a relationship with him, both Dr J and Ms H observed the Mother’s fears, distress and anxieties about the Father to be genuinely held. They both also agreed that the fear and anxieties X holds in relation to the Father are a reflection of the Mother’s feelings rather than being X’s own lived experience of the Father. The experts stated however, this does not mean that X’s fears and anxieties are not genuinely held by her.
The Mother lacks the insight and the capacity to develop the insight into how her fears and anxieties impact X. Dr J’s evidence is that this is because of the very high levels of the Mother’s distress. Without intensive personal counselling the Mother is unlikely to ever accept that it is in X’s best interests to have a relationship with the Father and support her in doing so.
The Father is fixated on his belief that the Mother has deliberately alienated X from him and has brainwashed her into believing he is someone to be feared. Because of this, he is not able to empathise with X’s situation and to be attuned to her needs, emotions and experiences.
The Father has an image of he and X’s former relationship as a close and positive one and he believes it can return to this with therapeutic assistance and the Mother’s support.
The Father’s view of his former positive relationship with X is overstated. X did not meet her Father until she was nine months old. The parties separated four months later. X did not see her Father for the next two years and then spent limited and disrupted time with him between the ages of three and five. She has spent no time with him since August 2015. It is not surprising she told Ms F in the 11F Child Inclusive Conference that she does not remember much about her visits with the Father. X couldn’t remember what the Father looked like, and wondered if she would recognise him.
The Father argues that X’s best interests are met if she is afforded the opportunity to have a meaningful relationship with him and her younger siblings. He argues she will otherwise remain isolated and the victim of her Mother’s questionable fears and anxieties. He argues a meaningful relationship with her paternal family will allow X much greater levels of support than are currently available to her and will enrich X’s life going forward. The Father argues with the correct therapy, and the Mother’s support, X can have that relationship.
Ideally, X should be able to have a relationship with both her Mother and Father and her younger siblings and ideally, such relationships would enrich her life going forward.
However, X’s lived experience has not been ideal. Her Father has been an absent figure for nearly all her life and she has no memory of a relationship with him or her own independent memories of him.
X’s views of her Father are those she has absorbed and learnt from her Mother. Her Mother’s views of her Father, based on the Mother’s remembered life experience of him, are extremely negative. Like her Mother, X is fearful and highly anxious about her Father and she cannot currently envisage a way to have a safe and secure relationship with him.
Given the evidence of Dr J and Ms H that the Mother’s fears and anxieties of the Father are genuinely held, I do not accept the Father’s contention that the Mother has lied about her experiences of the Father or deliberately sought to alienate X from him or brainwash her against him.
However, because X has only lived with her Mother and because X and her Mother are so very close, X has taken on her Mother’s views and feelings about her Father and does not, at this time, want a relationship with him.
I do not think the Father’s behaviours during the marriage were quite as awful as the Mother remembers. I also think the man the Mother knew 10 years ago is not necessarily the man the Father is today.
However, it is the evidence of Dr J and Ms H that there is a real risk to X’s emotional wellbeing if she were required to undergo further therapeutic reunification counselling with the Father.
Both experts opined it would be better for X to have personal therapeutic counselling to allow reality testing of her fears and anxieties, to learn to separate those from those of her Mother and to assist her to learn resilience and ways to manage her fears.
Dr J and Ms H expressed the view that personal counselling may be more successful in opening a path for X to seek a relationship with the Father as opposed to forced therapeutic reunification counselling with the Father. This is because personal counselling would open up a pathway based on X’s own curiosity about her Father and siblings and any time with the Father would be X’s choice rather than something forced upon her which could be traumatising and perhaps close the door to X ever wanting a relationship with her Father.
X not having a relationship with her Father is not an ideal outcome for her.
However, the reality is that X does not have a relationship with her Father. She has not spent time with him since she was five years old. Before then, theirs was a very disrupted relationship as X spent lengthy periods without seeing her Father.
X’s Mother is unable to support X having a relationship with the Father because of her own fears and anxieties about him. The Mother’s fears and anxieties about the Father are at a level whereby she cannot put them aside to allow X to form her own independent views of her Father.
X has consistently told the experts and the Independent Children’s Lawyer she does not want to see her Father.
The expert evidence is that to force X to attempt to have a relationship with her Father could be very emotionally damaging to her, especially given the failed first attempt to do so and the circumstances around that attempt described by Dr J.
The Act requires the court to make parenting orders that are in the best interests of the child. Section 60CC(2A) of the Act specifies that when considering the benefits of a child having a meaningful relationship with both the child’s parents and the need to protect a child from physical or psychological harm, greater weight is to be placed on protecting the child from harm.
When balancing these two factors and considering X’s very clear wishes, I am of the view that the emotional and psychological risk to X of requiring her to try to re-establish a relationship with her Father outweighs the benefit of her having a meaningful relationship with her Father at this time.
Accordingly, orders will be made in the terms proposed by the Mother and supported by the Independent Children’s Lawyer.
I intend to make some additional orders. Both Dr J and Ms H emphasised the need for X to be engaged in her own ongoing personal counselling to assist her in reality testing her fears and anxieties and to assist her to separate them from those of her Mother, to assist her to learn resilient ways to manage those fears and to develop her independence. This is especially so given her age and that she is on the cusp of entering adolescence.
Whilst the Mother indicated a willingness to engage counselling for X, it was concerning the Mother put a costs caveat on such counselling taking place.
Because of this, the Court was left with some concerns that the Mother may not understand or accept X’s need for assistance at this time.
For this reason, a further order will be made that the Mother is to do all things necessary to obtain counselling for X. That counselling may be available through X’s school, through a referral from her treating general practitioner via a mental health plan or through a community-based agency. I am going to request the Independent Children’s Lawyer to remain involved in this matter for a further three months to assist the Mother to arrange counselling for X and to ensure X is attending that Counselling.
I will also authorise the Independent Children’s Lawyer to provide X’s counsellor with a copy of this judgment and the orders made this day so the counsellor understands why they are being asked to assist X.
I know the Father will be bitterly distressed and disappointed by this decision. However, I hope the Father will avail himself of the offer made by the Independent Children’s Lawyer for her to read a letter from him to X in terms not unlike that which were set out in paragraph 147 of this judgment. If, and I hope when, X reaches out to the Father, it will be vitally important for her to know that her Father will be waiting for her.
I certify that the preceding two hundred and ten (210) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bender. Associate:
Dated: 24 May 2021
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Family Law
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Negligence & Tort
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Injunction
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