Mady & Farha (No 5)
[2023] FedCFamC1F 736
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mady & Farha (No 5) [2023] FedCFamC1F 736
File number: SYC 5754 of 2018 2 Judgment of: CAMPTON J Date of judgment: 28 August 2023 Catchwords: FAMILY LAW – PARENTING – Final parenting orders after nearly five years of litigation – Where, after fleeing Country C, the parents relocated to Australia as humanitarian refugees in 2018 – Where English is neither of the parents’ first language – Where each parent has significant vulnerabilities that have added layers of complexity to this parenting matter – Where the parents separated after an incident of family violence one month after they arrived in Australia – Where the child has lived with the mother and spent limited time with the father since separation – Consideration of risk posed by both the father and the mother – Where the Court finds that should the child spend time with the father without intervention, there is a low risk that the child will be exposed indirectly to family violence and a risk that she will experience emotional or psychological harm if the father is unable to control his intense emotions Where the Court finds the child is at risk of emotional and psychological harm if she continues to live with the mother without intervention – Where the child has absorbed the mother’s fears and anxieties about the father and has taken on responsibility for those anxieties herself – Where these risks are not unacceptable and can be ameliorated – Finding that it is in the child’s best interests to spend time and enjoy a relationship with the father – Slow, structured orders made to progress that objective. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60CA, 60CC, 62G, 64D, 69ZN, 69ZR, 69ZQ, 102NA
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Browne v Dunn (1893) 6 R 67; [1893] 1 WLUK 44
Carter & Wilson (2023) FLC 94-129; [2023] FedCFamC1A 9
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
LC v TC (1998) FLC 92-803; [1998] FamCA 37
Line v Line (1997) FLC 92-729; [1996] FamCA 145
M v M (1988) 166 CLR 69; [1988] HCA 68
Mady & Farha [2022] FedCFamC1F 306
Mady & Farha (No 2) FedCFamC1F 1022
Mady & Farha (No 4) [2023] FedCFamC1F 385
Division: Division 1 First Instance Number of paragraphs: 334 Date of hearing: 9–11 May 2022; 15–19 May 2023; 2 June 2023; 28 August 2023 Place: Sydney Counsel for the Applicant: Mr Shaw Solicitor for the Applicant: Khalil Family Lawyers Pty Ltd Counsel for the First Respondent: Ms Giacomo Solicitor for the First Respondent: Legal Aid NSW Domestic Violence Unit The Second Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr Hill Solicitor for the Independent Children's Lawyer: Kathryn Renshall Lawyers ORDERS
SYC 5754 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MADY
Applicant
AND: MS FARHA
First Respondent
MS SAMAAN
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
28 AUGUST 2023
THE COURT ORDERS THAT:
1.Ms Samaan be joined as the second respondent to the proceedings.
BY CONSENT, THE COURT ORDERS THAT:
2.All prior parenting orders in relation to the child, X, born 2014, are discharged.
3.The mother have sole parental responsibility for X.
4.X live with the mother.
5.In the exercise of her sole parental responsibility for X, if the mother makes a long-term decision for X (including changing the school X attends) she is to notify the father of such decision as soon as practicable, in writing by email.
6.The mother shall provide to the father in writing by email to Ms Samaan until 30 May 2024 and the father himself after that date, copies of the following documents as soon as practicable after they are received:
(a)All school reports provided by X’s school; and
(b)All awards and/or accolades received by X.
THE COURT NOTES THAT:
A.For the purpose of these reasons, “the parties” means the mother, the father and Ms Samaan.
B.So that it is clear to the parties, although the mother and father are required to comply with all orders made today, Orders 15, 17, 19, 21, 23, 25 and 27 as to time spent with or communication with X are not conditional upon such compliance.
C.The parties are strongly encouraged to obtain a translation of these orders and reasons in Language B from a qualified translator.
AND ON A DEFENDED BASIS, THE COURT ORDERS THAT:
Contact details
7.Within 24 hours’ of these orders, the father and Ms Samaan are to do all such things to ensure that the following details are provided to the mother in writing by email to …@... AND …@...:
(a)Each of their current email addresses;
(b)Each of their current residential addresses; and
(c)Each of their current mobile phone numbers.
8.Within 72 hours’ of these orders, the mother is to provide to Ms Samaan using her email nominated pursuant to Order 7, an email address and mobile phone number for the purpose of facilitating X’s time and communication with the paternal family.
9.Ms Samaan is restrained from sharing the email address and mobile phone number provided by the mother pursuant to Order 8 with any other person, including the father, save and except with the mother’s express authority in writing.
10.Not earlier than 1 May 2024, and not later than 30 May 2024, each of the father and the mother are to provide to the other an email address for the purpose of facilitating X’s time with the father and providing documents pursuant to Order 6, and are restrained from using that email address for any other purpose unless otherwise agreed between them in writing.
Independent Children’s Lawyer to nominate supervision agency
11.Forthwith and by no later than 8 September 2023, the Independent Children’s Lawyer (“the ICL”) is to:
(a)Nominate a supervision agency to supervise the father’s time pursuant to these orders (“the supervision agency”) by:
(i)First, contacting K Family Services to confirm if they are available to supervise the father’s time with X pursuant to these orders;
(ii)If K Family Services is not available, making any and all such enquiries as are necessary to identify and select an appropriate community-based supervision agency that is available to supervise the father’s time with X pursuant to these orders;
(b)Notify the parties in writing of K Family Services’ availability, or of the nominated community-based supervision agency; and
(c)Provide the supervision agency with a copy of these orders.
12.As soon as possible upon the ICL notifying the parties of the supervision agency pursuant to Order 11, each of the parties are to complete any intake process required by the supervision agency for supervised time between the father and X to commence.
13.The father is to meet all costs of supervision provided by the supervision agency.
14.In the event any party seeks that the supervision agency produce a report as to each period of supervised time, that party is to meet the costs of that report.
X’s time with the paternal family
15.X shall spend time with Ms Samaan (and the paternal grandmother is requested to also attend if possible):
(a)On Saturday, 9 September 2023 from 10.00 am – 12.00 pm; and
(b)On Saturday, 23 September 2023 from 10.00 am – 12.00 pm; and
(c)On Saturday, 7 October 2023 from 10.00 am – 12.00 pm; and
(d)On Saturday, 21 October 2023 from 10.00 am – 12.00 pm.
16.For the purpose of Order 15:
(a)Changeover shall occur at Suburb Q train station, unless otherwise agreed between the mother and Ms Samaan in writing;
(b)Time is to occur at a public place;
(c)Ms Samaan is to do all such things as are necessary to ensure no other person attends the time between X and herself save and except for:
(i)The paternal grandmother;
(ii)From 7 October 2023 onwards, her children (X’s cousins); and
(iii)As is otherwise provided for by this order;
(d)The mother is permitted and encouraged to attend the periods of time on 9 September and 23 September 2023 (pursuant to Orders 15(a) and (b));
(e)The parties are to do all things necessary to ensure that the supervisor from the supervising agency engaged pursuant to Order 11 attends the time between X and Ms Samaan on 23 September 2023, 7 October 2023, and 21 October 2023; and
(f)The father is restrained from attending or being in the vicinity of the place where time is occurring on 9 September 2023, 23 September 2023 and 7 October 2023.
The father’s supervised time with X
17.X shall spend time with the father and Ms Samaan (together with the paternal grandmother and any of Ms Samaan’s children should Ms Samaan so determine they should attend), supervised by the supervision agency as follows:
(a)On Saturday, 21 October 2023 from 10.00 am – 12.00 pm;
(b)On Saturday, 4 November 2023 from 10.00 am – 12.00 pm;
(c)On Saturday, 18 November 2023 from 10.00 am – 12.00 pm.
18.For the purpose of Order 17:
(a)Time shall occur at a public place;
(b)Ms Samaan shall collect X from the mother at Suburb Q train station, unless otherwise agreed between the mother and Ms Samaan in writing;
(c)The father shall meet the supervisor at the public place, where he shall wait for X to arrive with Ms Samaan;
(d)At the conclusion of time, Ms Samaan shall return X to the mother at Suburb Q train station, unless otherwise agreed between the mother in writing.
19.After the completion of Order 17, X shall spend time with the father, supervised by Ms Samaan, as follows:
(a)On Saturday, 2 December 2023 from 10.00 am – 2.00 pm;
(b)On Saturday, 16 December 2023 from 10.00 am – 2.00 pm;
(c)On Saturday 30 December 2023 from 10.00 am – 2.00 pm.
20.For the purpose of Order 19:
(a)Time shall occur at a public place, OR at the home of Ms Samaan or the paternal grandmother;
(b)Changeover shall occur, facilitated by Ms Samaan at Suburb Q train station, unless otherwise agreed in writing between the mother and Ms Samaan; and
(c)The father is not to attend changeover.
21.After the completion of Order 19, X shall spend time with the father, supervised by Ms Samaan, on Saturday, 13 January 2024 and each alternate Saturday thereafter for a period of four months, from 10.00 am – 4.00 pm.
22.For the purpose of Order 21:
(a)The father is required to spend time with X supervised by Ms Samaan;
(b)Changeover shall occur, facilitated by Ms Samaan at Suburb Q train station, unless otherwise agreed in writing between the mother and Ms Samaan; and
(c)The father is not to attend changeover.
23.After the completion of Order 21, X shall spend time with the father in the presence or vicinity of Ms Samaan, on 18 May 2024 and each alternate Saturday thereafter for a period of three months, from 10.00 am – 4.00 pm.
24.For the purpose of Order 23:
(a)The father is required to spend time with X in the presence or vicinity of Ms Samaan, but Ms Samaan is not required to supervise this time;
(b)Changeover shall occur, facilitated by Ms Samaan at Suburb Q train station unless otherwise agreed in writing between the mother and Ms Samaan;
(c)The father is not to attend changeover.
25.After three months of X spending time with the father in accordance with Order 23, X shall spend time with the father:
(a)On 17 August 2024 and each alternate Saturday thereafter for a period of three months, from 10.00 am – 6.00 pm;
(b)From 16 November 2024 and each alternate weekend thereafter for a period of six months, from 10.00 am on Saturday until 4.00 pm on Sunday.
26.For the purpose of Order 25:
(a)Changeover shall occur, facilitated by Ms Samaan at Suburb Q train station unless otherwise agreed in writing between the mother and Ms Samaan;
(b)The father is not to attend changeover; and
(c)On all occasions that X spends overnight time with the father, Ms Samaan and/or paternal grandmother are to be present in the home overnight.
The father’s regular time with X
27.After six months of X spending time with the father in accordance with Order 25(b) (being from 16 May 2025), X shall spend time and communicate with the father:
(a)Each alternate weekend, from after school on Friday until before school on Monday; and
(b)During school holidays as follows:
(i)For the first half of the three mid-year school holidays periods commencing from the September/October school holidays in 2025 and each alternate year thereafter, and for the second half of the three mid‑year school holiday periods in 2026 and each alternate year thereafter; and
(ii)For the last two weeks of the 2025/2026 Christmas school holiday period; and
(iii)For the last three weeks of each Christmas school holiday period thereafter.
(c)At all other times as might be agreed between the father and mother in writing.
28.For the purpose of the above order:
(a)Changeover is to occur by the father collecting X from school on Friday and dropping her to school on Monday;
(b)If changeover falls on a non-school day, changeover shall occur, facilitated by Ms Samaan and/or such person as agreed by the mother in writing at 12.00 pm on the changeover day at Suburb Q train station, unless otherwise agreed between the parents in writing; and
Electronic communication
29.From the date of these orders until X commences spending overnight time with the father (being on 16 November 2024), the mother is to do all things as are necessary to facilitate X communicating with Ms Samaan (and/or the paternal grandmother or other members of the paternal family should they wish to so communicate with X), by FaceTime (or another suitable video-call application, as follows:
(a)On Saturday, 2 September 2023 between 10.00 am – 10.30 am (unless otherwise agreed between the mother and Ms Samaan in writing); and
(b)On Wednesday, 6 September 2023 between 5.30 pm – 6.00 pm (unless otherwise agreed between the mother and Ms Samaan in writing); and
(c)On Saturday 16 September 2023 and every alternate Saturday thereafter between 10.00 am – 10.30 am.
30.Until 2 December 2023, the father is restrained from being in the presence or earshot of Ms Samaan during the video communication with X pursuant to Order 29.
31.After 16 November 2024, the mother is to do all things as are necessary to facilitate X communicating electronically with the father, Ms Samaan, the paternal grandmother, or any other member of her paternal family as X may reasonably request, or as is agreed between the mother and any of the paternal family members.
ICL to refer the mother and the father to R Organisation
32.As soon as possible and by no later than 11 September 2023, the ICL is to do all such acts and things to:
(a)Complete a referral for each of the mother and father for intake to R Organisation (providing only the mandatory information required for a referral);
(b)Provide R Organisation, together with that referral, a copy of these orders and reasons for judgment, and to specifically draw R Organisation’s attention to Orders 31–38 herein; and
(c)Notify the mother and father by email that the referral has been completed.
Father to engage in therapy
33.As soon as possible upon receiving the confirmation of the referral from the ICL, and no later than 18 September 2023, the father is to do all things as are necessary to contact R Organisation, and is to:
(a)Request the availability of R Organisation to undertake counselling/therapy for the father, with a properly qualified psychologist or therapist who is fluent in Language B or is otherwise assisted by a properly qualified interpreter, for the purpose of addressing the difficulties experienced by the father, including but not limited to his emotional regulation and anger;
(b)In the event R Organisation is unable or unwilling to engage in counselling/therapy for the father, then to request that R Organisation:
(i)Assist him in locating another suitably qualified practitioner, who is able to undertake such counselling/therapy for the father; and
(ii)Assist him in contacting and engaging with that suitably qualified practitioner.
(c)The father is further to request that R Organisation refer him to any coaching service or appropriate parenting course that may assist him in developing his parenting skills.
34.In the event R Organisation is unable to assist the father in providing counselling/therapy or in locating another suitably qualified practitioner to do so, the father is to contact the therapist identified by the Court Child Expert, Mr S, for the purpose of undertaking the counselling/therapy identified in Order 33(a) above.
35.Upon the father engaging a suitably qualified practitioner pursuant to Orders 31 and 32 above (“the father’s therapist”), he shall notify the ICL in writing of the name and the contact details of that person.
36.The father shall attend upon his therapist for treatment at such times and frequency as the father’s therapist recommends, but for not less than 18 months from the date of these orders.
Mother to engage in therapy
37.As soon as possible upon receiving the confirmation of the referral from the ICL, and no later than 18 September 2023, the mother is to do all things as are necessary to contact R Organisation, and is to:
(a)Request the availability of R Organisation to undertake counselling/therapy for the mother, with a properly qualified psychologist or therapist who is fluent in Language B or is otherwise assisted by a properly qualified interpreter, for the purpose of addressing the difficulties experienced by the mother, including her anxiety, her dependent relationship with X, and her anxieties separating from X;
(b)In the event R Organisation is unable or unwilling to engage in counselling/therapy for the mother, then to request that R Organisation assist her in locating another suitably qualified practitioner, who is able to undertake such counselling/therapy for the mother.
38.In the event R Organisation is unable to assist the mother in providing counselling/therapy or in locating another suitably qualified practitioner to do so, the mother is to contact T Psychology, for the purpose of undertaking the counselling/therapy identified in Order 37(a) above.
39.Upon the mother engaging a suitably qualified practitioner pursuant to Orders 33 and 37 above (“the mother’s therapist”), she shall notify the ICL in writing of the name and the contact details of that person.
40.The mother shall attend upon her therapist for treatment at such times and frequency as the mother’s therapist recommends, but for not less than 18 months from the date of these orders.
AND IT IS NOTED that X is not to be present in the mother’s therapeutic sessions with mother’s therapist.
X to engage in therapy
41.As soon as possible and by no later than 4 September 2023, the ICL is to:
(a)Contact Ms U, being the clinical psychologist recommended by the Court Child Expert, at T Psychology (or whatever clinic in which she may now practise), to determine her availability to engage in therapy for X.
(b)In the event that Ms U is unable or unwilling to engage in therapy for X, then to enquire with T Psychology as to whether:
(i)any other practitioner (therapist, psychologist or otherwise) at that practice is able to engage in therapy for X; or
(ii)if no other practitioner at that practice is able to do so, as to whether a recommendation can be given as to the name of another suitably qualified therapist to engage in therapy for X.
42.In the event the ICL is not able to engage Ms U or any other practitioner at T Psychology or as recommended by them pursuant to the above order, then within seven days thereafter, the ICL is to make all such enquiries as they deem necessary to identify a suitably qualified practitioner who is able to engage in therapy with X.
43.Forthwith upon the ICL nominating a practitioner pursuant to Orders 39 and 40 (“X’s therapist”), they are to notify the mother, the father and Ms Samaan of the identity of that person in writing.
44.The ICL shall, within their sole discretion, be at liberty to communicate with X’s therapist as and when the ICL and/or X’s therapist see fit.
Attendances upon X’s therapist
45.The mother shall do all such things to ensure that X is made available and attends upon X’s therapist for treatment at such times and frequency as X’s therapist recommends, but for not less than 18 months from the date of these orders.
AND IT IS NOTED that the mother is not to be present in X’s therapeutic sessions with X’s therapist.
46.For the purpose of X’s therapy, the mother is to drop X off and collect X from X’s therapist’s office, and shall not remain in the vicinity of the office during X’s appointments with her therapist.
47.The father is to meet the costs of X’s therapy.
Independent Children’s Lawyer to provide documents to therapists
48.Within seven days determination of the identity of each of the mother’s therapist and the father’s therapist being provided to the ICL pursuant to Orders 33 and 37 above, and with nominating X’s therapist, the ICL is to provide each therapist copies of the following documents:
(a)These orders and reasons for judgment; and
(b)The report of Ms G dated 30 November 2020; and
(c)The updating report of Ms G dated 19 April 2022.
X’s passport
49.Pursuant to s 11 of the Australian Passports Act 2005 (Cth), the mother be permitted to obtain an Australian passport for X (in the name of X, born 2014), without the necessity of obtaining the father’s consent.
Mother’s international travel with X
50.Until Order 53 is complied with, the mother be by injunction from removing or attempting to remove, or causing or permitting the removal of X from the Commonwealth of Australia.
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by maintaining X’s name (X, female, born 2014) on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia (“the Airport Watchlist”) until notice of its removal is provided by the ICL pursuant to Order 53.
51.X’s name shall remain on the Airport Watchlist until X has exercised time with the paternal family pursuant to these orders for a period of twelve months (noting that if these orders are complied with, that period will be achieved on 9 September 2024).
52.Upon X exercising time with the paternal family pursuant to these orders for a period of twelve months:
(a)The mother is to email the ICL, copying in each of the father, Ms Samaan and the paternal grandmother, confirming her understanding that the period of time is completed;
(b)Within seven days of receiving that email from the mother, the father is to respond to the ICL, copying in each other party, confirming that the mother’s understanding is correct.
53.Upon the father responding to the mother’s email, or if no such response is received, then after seven days of receipt of the mother’s email, the ICL shall do all such things as are necessary to provide written notice to the AFP that X’s name (X, born 2014) must be removed from the Airport Watchlist, by:
(a)Emailing the AFP National Operations State Service Centre (NOSSC);
(b)Attaching to that email a copy of these orders, a copy of the email notification provided by the mother (and if a response has been received, by the father); and
(c)Thereafter forwarding the written notice to each of the parties by email.
AND IT IS REQUESTED that upon receiving such notice, the Australian Federal Police give effect to this order by removing X’s name (X, female, born 2014) from the Airport Watchlist.
54.Upon compliance with Order 53, Order 50 be discharged.
55.Pursuant to s 65Y of the Family Law Act 1975 (Cth) (“the Act”), the mother is authorised to remove X from the Commonwealth of Australia to take X to Country L, provided that:
(a)Order 51 has been complied with;
(b)Unless otherwise agreed by the mother and father in writing, the proposed travel with X shall occur within school-holiday time in which X would otherwise not be spending time with the father;
(c)In the event the proposed travel is to occur when X would otherwise be spending time with the father pursuant to these orders, the mother is to nominate, in writing by email to the father, proposed make-up time for the time missed;
(d)Not less than 60 days prior to the proposed departure date, the mother shall provide the father notice of:
(i)Proposed departure and return dates; and
(ii)An itinerary of the cities in which X will be staying.
(e)Not less than 28 days prior to the proposed departure date, the mother shall provide to the father copies of X’s return airline ticket and written confirmation of payment for the return airline ticket.
56.The mother is hereby restrained from taking X, or facilitating her travel to a country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, save and except as agreed between herself and the father in writing or pursuant to a further Order of the Court.
Discharge of the ICL
57.The ICL be discharged upon their compliance with Order 53 above.
Restraints
58.Pursuant to s 68B of the Act, the father is restrained by injunction from:
(a)Approaching or contacting the mother except to give effect to these orders, or with the express consent of the mother in writing, or through their respective legal representatives;
(b)Assaulting, threatening, harassing, or intimidating the mother;
(c)Attending the mother’s place of residence unless with the express consent of the mother in writing;
(d)Taking possession of X or causing her to be removed from school (or any other educational or vocational institution she attends from time to time), or her residence, or causing or encouraging any other person to do so on his behalf save and except to exercise time pursuant to these orders.
59.Both the mother and father are restrained from denigrating the other parent in the presence or earshot of X, and shall do all things to remove X from the vicinity should any other person to do so.
Finalising the proceedings
60.Save and except as to costs, all extant applications and responses thereto are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mady & Farha (No 5) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
INTRODUCTION
Mr Mady (“the father”) and Ms Farha (“the mother”) each seek orders as to the parenting of their child, X, born 2014. X is currently eight years old.
X lives with the mother. She last spent time with the father in November 2020, more than two and a half years ago.
The path to this point has not been easy for X and her parents. After leaving Country C not long after X’s first birthday in 2015, the family lived for short periods in Country D and then Country E. Each of the parents and X endured the challenges of leaving the country of their birth and living without sovereign support. The family arrived in Australia as refugees in 2018. Within little over a month after their arrival, the parents separated in the shadow of a serious incident of family violence, as recorded later in these reasons. X was nearly four years old at this time.
Each of the parents have vulnerabilities that have generated challenges in the conduct of this litigation. In addition to the significant trauma experienced from living through, then fleeing civil unrest in their home country and then being separated from their lives and families when they moved to Australia, the language of both parents is Language B.
The mother has limited English language skills. She was at times able to understand and respond to questions in English. For the most part she gave her evidence through interpreters. She has had the benefit of specialised representation by the Domestic and Family Violence team at Legal Aid since the proceedings began in 2018.
The father speaks no English. All of his oral evidence was given through an interpreter. His limited language skills have, at times, created an appearance that he lacks capacity for introspection. As will become clear throughout these reasons, it became apparent over the course of the trial that in reality, he understood little of what had happened throughout the litigation. At earlier stages of the proceedings, he had legally aided lawyers. His current lawyers were engaged after an order was made pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) on 22 November 2022. The fact that he was legally represented did not materially improve the father’s understanding of the litigation. As will be recorded in these reasons, the father has encountered significant challenges to present his case in these proceedings. At best, the legal assistance he has received has been less than adequate.
It would not be an overstatement to observe that each of the parents are at an incalculable disadvantage and wholly out of their depth in this legal system. That disadvantage is exacerbated by:
(a)The fact that the allegations of family violence made by the mother against the father are very serious;
(b)The complex current presentations of each of the parents and its impact on their respective parenting capacities; and
(c)The orders sought by the mother are extreme. If made their effect is that the father will be eliminated from X’s life.
What is both a symptom of this complexity, and a factor adding to it, is that X currently expresses a real and significant anxiety of her father. It is the mother’s case that X’s anxiety of the father arose from her own recollections of the father’s family violence occasioned upon the mother during their relationship. The father says X’s anxiety is a function of what the mother has told X and the mother’s attitudes towards him.
Tellingly, the Court Child Expert observed that:
69.This is a sad and complex matter which is not easy to analyse and deconstruct. Some of this difficulty may be due to a different culture, language, refugee experience and use of interpreter[s], but it is considered that there are also deeper underlying issues including significant mistrust between the parents, allegations of family violence and the issue of overseas travel for [the mother] and [X].
(Updating family report, paragraph 69)
It is against this difficult background that X’s future parenting is to be determined: while the parents agree that the mother should have sole parental responsibility for X, and that X should continue to live with her, they are fundamentally at odds about whether X should spend time with the father at all, and if she is to, on what terms. In many ways, this determination will be life changing for X.
For the reasons that follow, orders will be made providing X with the opportunity to develop and foster a meaningful relationship with the father. Ms Samaan will be joined as a party to the proceedings, in circumstances where the promotion of X’s best interests hinges on her initially spending time and communicating with the paternal family alone, then progressing to spending time with the father scaffolded by that family and overseen for a period by a professional supervisor. The father’s time will start with short periods, supervised by Ms Samaan and then will be unsupervised, slowly progressing to include weekend and the later holiday time. Orders will be made requiring each of the parents to engage in therapeutic processes to improve their own parenting capacities and therapy for X. Injunctive orders will be made broadly in the terms sought by the ICL. Orders will be made permitting the mother to travel outside Australia with X, on the condition that this can only occur after a period of X spending time with the father for twelve months.
BACKGROUND
The father was born in Country C in 1980 and is aged 42. He currently works as a tradesperson approximately 20 hours a week and receives a partial disability support pension. The father’s parents and his sister migrated to Australia in late 2022. The father now lives with them in their home in Suburb V in Sydney.
The mother was born in 1990, also in Country C, and is aged 32. She currently works as a receptionist, and lives with X at an undisclosed address. The father has not known where the mother and X have lived since separation. X attends W School in Suburb Q in Sydney, where she is now in Grade 3.
The parents were married in 2011 in City Y, Country C and commenced living together from that time.
In the first year of their marriage, the parents struggled to fall pregnant. The mother gave evidence that she and the father attended fertility specialists in City Y and that the father was prescribed medication to assist him with his fertility. This issue caused upset and unrest between the parents.
X was born in 2014. For each of the mother and father, she is a ‘miracle child’.
In 2015 upon the escalation of civil unrest in their home country, the family relocated from Country C to Country D with the intention of applying for refugee status. They lived in Country D for two years before travelling to Country E in 2017, where they remained for nearly one year. One month prior to the family leaving Country E, the father’s mother (“the paternal grandmother”) came to live with the family in their home. She gave evidence as to caring for X outside Australia, as to bathing her, playing with her and taking her to the park.
The parents and X left Country E for Australia in 2018. They found temporary accommodation before moving to Suburb Z the following month. The mother and X are now permanent residents of Australia. The father is an Australian citizen.
As will be discussed, while in their home in Sydney in 2018, the parents engaged in an argument and an incident of family violence occurred. The mother left the family home. It became the date of final separation. X stayed with the father that night. The following day, Police collected X from the family home and took her to the mother. X has remained living with the mother since.
On the following day, the father was arrested and charged with an offence against mother. A provisional Apprehended Violence Order (“AVO”) was taken out against the father, for the protection of the mother (but not X). Around two weeks later, an interim AVO was made against the father for the protection of the mother (but again, not X).
The father said that both prior to and after arriving in Australia, the mother expressed a desire to move to Country L, where her family live. His belief was that shortly after separation, the mother took steps to permanently relocate with X to live in Country L. The mother denies this was the case. The father has expressed a fear that the mother will remove X to Country L throughout the proceedings.
The father commenced proceedings in the Federal Circuit Court (as it was then) on 7 September 2018. By his Initiating Application, he sought orders on an urgent basis restraining the mother from removing X from Australia and seeking to spend time with X.
The interim AVO was amended later in 2018 to include X as a protected person.
The following month, a final AVO was made restricting the father’s conduct towards the mother and X, such that the father was not permitted to approach or contact the mother or X unless through a lawyer, for the purpose of counselling, mediation or conciliation, or as ordered by a court for a period of 12 months. On that same date, the father was convicted of one charge against the mother.
The mother filed a Response to an Initiating Application on 2 November 2018. She sought orders providing for her to have sole parental responsibility for X, including that she be able to obtain a passport for X without the father’s consent and that she be permitted to travel overseas with X. She sought that the father’s time (if any) with X be determined after a Family Report and sought a raft of restraints against the father, including against him approaching herself or X and that he be restrained from removing X from Australia.
Over the course of these proceedings the parents have, to their credit, reached consent positions on a number of issues and consent orders were made to the following effect:
(a)On 5 November 2018, placing X’s name on the Airport Watch list, and restraining each parent from removing X from Australia;
(b)On 17 December 2018, providing for a mechanism of supervised time between the father and X to occur at F Contact Service. The first supervised time to be spent was at F Contact Service was scheduled for a date in mid-2019, being some months after separation. For reasons that will be discussed, that time spent did not occur. F Contact Service withdrew their support for the family at that time.
(c)On 7 April 2020 obliging each parent to apply to a supervision agency, K Family Services. Should their application process have been successful, X was to spend time with the father each alternate Saturday for two hours in a public park and supervised by K Family Services. The parents agreed that the supervisor would collect and return X from the mother’s home. The supervision scheme was to be reviewed after two visits, and if progressing well, would increase to three hours. Time occurred pursuant to this regime on one occasion in April 2020. This was nearly two years after separation, and just under one year after the aborted effort at F Contact Service. For reasons that will be discussed, that time spent did not occur again.
The parents additionally agreed, as will be discussed later in these reasons, to re-engage with F Contact Service in October 2020 and for the father to spend time with X supervised by that service. Such time was spent on three occasions, being twice in October 2020 and once in November 2020, before it once again ceased. The orders for it to occur remained in place.
The proceedings were transferred to the Family Court of Australia (as it was known then) on 29 March 2021. The matter came before a senior judicial registrar of the Family Court for management on 19 May 2021, on which date the following notation was made:
B.The Mother seeks final orders to relocate internationally with the child on a final basis.
C.The parties advise the Court that there have been issues with respect to supervised time between the [child] and the Father which has caused the time to have ceased since December 2020.
On 20 August 2021 the matter came before a judge of the Family Court. The father did not attend Court, and in his absence, orders were made listing the proceedings for an undefended hearing and preventing the parties from personally cross-examining one another pursuant to s 102NA of the Act. The undefended hearing was vacated upon the father becoming legally represented.
The matter first came before me on 18 November 2021, and was listed for trial over five days on the next available date, commencing on 9 May 2022. Trial directions were made, including for the filing of material and providing the parents and the ICL a capacity to relist the proceedings in the event any issue arose in relation to the preparation for trial or that would prevent the trial commencing on the first listed day.
The trial commenced as scheduled on 9 May 2022. The father commenced giving oral evidence. It quickly became clear that he had “no idea” as to the content of the two family reports of the Court Child Expert. Those reports had not been read to him in Language B. Neither had the mother’s affidavit evidence, and by inference, a number of the other important documents filed in these proceedings or the large ICL tender bundle. A safe and fair trial could not have been conducted under those circumstances, and it was therefore adjourned part-heard (see reasons for judgment delivered on 10 May 2022, Mady & Farha [2022] FedCFamC1F 306).
On 12 May 2022, orders were made by consent regulating X’s parenting for the period of the adjournment. They included that X live with the mother and that the mother have sole parental responsibility for X, and:
(a)Order 8, for the father to attend upon a “properly qualified clinical psychologist” who is fluent in Language B or is otherwise assisted by a properly qualified interpreter, “for the purpose of addressing the difficulties experienced by the Father, including but not limited to anger management”. That person was to be provided with a copy of the family reports and the notes produced on subpoena by the father’s previous counsellor, P Family Services.
(b)Order 9, for the mother to attend upon a “properly qualified clinical psychologist” who is fluent in Language B or is otherwise assisted by a properly qualified interpreter, “for the purpose of addressing the issues identified” in the two family reports. That person was to be provided with a copy of the family reports, and was to provide the ICL with a report after six months of the mother’s attendance as to her progress in therapy and any recommendations; and
(c)That the parents and the Independent Children’s Lawyer (“the ICL”) facilitate X engaging in a process of therapy with a properly qualified child’s therapist.
The father’s compliance with the orders dated 12 May 2022 was imperfect. His solicitors arranged for him to attend once upon Dr O, a clinical psychologist, in September 2022 for what was in reality a medico-legal process. As recorded later in these reasons, by the time of the second tranche of trial the father still had not had the first family report dated 30 November 2020 (Exhibit C2) read to him in Language B. A fair inference from these circumstances is that he had little, if any, awareness of the content of the 12 May 2022 orders or their purpose.
The mother attended upon an accredited mental health social worker at the AA Medical Centre from June 2022. She had a total of seven sessions with that counsellor between June 2022 and November 2022. She said that during one of those sessions, in November 2022, the therapist “asked to speak to [X] by video call. When [X] was asked about [the father] and she became upset and refused to talk about [him].” It is not clear why this occurred. It was uncontroversial that the therapist passed away in early 2023. He accordingly was not available to give evidence at trial, and the clinical notes of the mother’s attendances were not available. The mother in her oral evidence said that the focus of her sessions with the therapist was working on her feelings of fear, and assisting her to know that X is safe when she spends time with the father.
For reasons that were not entirely clear, there was some false starts in securing the identity of the therapist for X. That therapist eventually became Ms BB of CC Psychology at Suburb DD. That first attendance by the mother on the therapist was in March 2023, 10 months after the making of the orders for therapy. By the time the trial had concluded the mother had attended CC Psychology on six occasions, X only once (as will be discussed later in these reasons) and the father only once, with his next appointment in June 2023. The ICL’s efforts to obtain a short report as contemplated by the orders from the therapist were unsuccessful.
The maternal grandmother travelled from Country L to Australia for a period of four months between mid and late 2022. During that time she lived with the mother and X. The mother gave evidence that X developed a close relationship with the maternal grandmother during this period.
In late 2022, the paternal grandmother, together with the paternal grandfather and the father’s sister, relocated to Australia. The father has lived in their home since that time.
In the period of the adjournment of the trial, a number of procedural and interlocutory determinations were made, including:
(a)Further orders made on the listing before me on 28 October 2022;
(b)Orders as to the requirements of s 102NA of the Act and further trial management orders of 22 November 2022;
(c)A defended hearing as to international travel heard on 19 December 2022 and dismissed on 20 December 2022 (see Mady & Farha (No 2) FedCFamC1F 1022). Notwithstanding the s 102NA order having been made, the father at that time was not legally represented; and
(d)Further trial management orders made on 17 April 2023.
When the part-heard trial recommenced on 15 May 2023, the father had obtained legal representation through the s 102NA scheme. However, it quickly became apparent that his solicitors:
(a)Did not inspect the Court file on receiving instructions;
(b)Did not obtain access to the large number of exhibits tendered in the May 2022 tranche of the proceedings;
(c)Did not assist the father in the translation from English into Language B of the first family report dated 30 November 2020, the mother’s updating affidavit and potentially the exhibits tendered to date originating from the ICL’s tender bundle marked MFI-A; and
(d)Did not assist the father in complying with Order 2 made 17 April 2023 requiring him to file an updating affidavit nor with the orders made 12 May 2022 requiring him to attend upon a therapist for the purpose articulated in those orders.
The proceedings were adjourned to permit the father time to prepare a proof of evidence in relation to the report prepared by Dr O, which the father sought but was refused leave to rely upon (see Mady & Farha (No 4) [2023] FedCFamC1F 385), and to have interpreted to him the balance of any documents which he had not yet read.
The second tranche of the trial recommenced on 16 May 2023. It did not conclude in the further allocated five days of hearing. The final day of hearing was 2 June 2023. The father gave further oral evidence in chief on that day. The paternal grandmother also gave oral evidence in chief and was cross-examined. The Court Child Expert was cross-examined. Each party and the ICL made submissions.
COMPETING PROPOSALS AND SCOPE OF THE DISPUTE
Orders sought by the father
The father sought orders as contained in his updated Minute of Order dated 16 May 2023 (Exhibit F5). He accepted that the mother should have sole parental responsibility for X, and that X should live with the mother.
The father sought that X spend time with him each week, initially supervised by a contact centre or X’s paternal aunt, Ms Samaan, before progressing to be unsupervised. His regime for increasing time was as follows:
(a)For a period of six weeks, for two hours each Sunday; and then
(b)For a period of four weeks, for three hours each Sunday, and then
(c)For a further period of four weeks, for five hours each Sunday; and then
(d)After the 14 weeks of supervised time, X would then commence spending regular, unsupervised time with the father on a fortnightly cycle, as follows:
(i)In week one, from 4.00 pm to 7.00 pm on Thursday; and
(ii)In week two, from 10.00 am on Saturday to 5.00 pm on Sunday.
He additionally sought orders for X to spend time with him on special days, including religious holidays, X’s birthday and father’s day. It was the father’s proposal that changeover between the parents would occur at EE Shopping Centre and would be facilitated by Ms Samaan (or another person if agreed by the parents in writing).
In addition to his time-spent orders, the father sought orders that:
(a)The mother attend a mental health professional to help her with any anxieties she might have about X spending time with the father;
(b)He attend a mental health professional to help him with his anger management; and
(c)X not travel outside of Australia without his written consent.
Orders sought by the mother
The orders sought by the mother were contained in the Minute of Final Order attached to her Case Outline filed on 2 May 2022 (Exhibit M1). She also sought that she have sole parental responsibility for X and that X live with her.
It is the mother’s position on a final basis that orders be made that X spend no time with her father, that she not communicate with him, that he be restrained from contacting her, and that the she be permitted to travel with X overseas without notice to or consent from the father.
Orders sought by ICL
During submissions, the ICL initially sought orders that X live with the mother, “conditional” upon the mother attending therapy and facilitating X obtaining therapeutic support. That iteration of the ICL’s orders did not identify the consequence of the proposed live with order if the mother did not comply with its conditions.
The ICL then sought orders as articulated in a Minute of Order that became Exhibit ICL13. It was the ICL’s position on a final basis that X should live with the mother and that there be no orders regulating the time spent between X and the father. In oral submissions, counsel for the ICL said that the father should be permitted to send X gifts and presents from time to time to the mother, but that the mother should not be required to provide them to X unless X requested them. The mother would be required to notify X of their receipt and would be required to keep them until X was 18.
The ICL identified that the absence of a prohibitive order as to “no time’ would “leave the door open for [X] to spend time with the father with the passage of time”. The ICL did not articulate how the restoration of any relationship between X and her father would occur in this vacuum.
The scope of the dispute
By the conclusion of the trial, the following issues remained for determination:
(a)Will X be at an unacceptable risk of harm in the father’s care by way of direct or indirect exposure to family violence or the father’s inability to regulate his conduct?
(i)If the father is found to pose an unacceptable risk of harm to X, can this risk be ameliorated by supervision or other means?
(ii)If so, what time should X spend with the father and on what basis should that time occur?
(b)Does the mother pose a risk of harm to X by way of her emotional dependence on X, including the possibility of their relationship being enmeshed, and by way of her incapacity to facilitate a relationship between X and the father?, or
(c)If the mother is found to pose a risk of harm to X, how can this risk be ameliorated?
(d)Should X be permitted to travel internationally with the mother, and if so, on what terms should that travel take place?
It was uncontroversial that no matter the determinations of these issues, processes of further therapy for the mother, the father and X was required to promote X’s best interests. Significantly, it was agreed by each parent and the ICL that such therapy should occur independent of whether orders were made for X to spend time with the father or.
An order was made on the last day of the trial requiring the ICL to obtain from the Court Child Expert the name and contact details of suitably qualified therapists to provide the requisite therapy and assistance for each of the mother, the father and X. An email was received from the ICL on 9 June 2023, forwarding the recommendations of the Court Child Expert as to suitable therapists. It was marked Exhibit ICL14.
THE EVIDENCE
The father
In the first family report, the Court Child Expert painted the following picture of the father’s presentation:
28. [The father] (aged 40 years) presented as softly spoken and polite in his manner and he was focussed on being able to spend time with [X]. During his interview, [the father] appeared emotional at times when discussing his time with [X], softly crying and rubbing his eyes. [The father] was interviewed with the use of [a Language B] interpreter and the process was quite long. He said that his English is progressing slowly but that he is not currently doing any classes.
This is an entirely accurate depiction of how the father presented in cross-examination: he was softly spoken, gentle-mannered, and polite. He was respectful of the Court and its processes, and rarely spoke over those asking questions of him. On the few occasions that he did, he quickly apologised and restrained himself appropriately.
The father struggled to understand the meaning of simple questions put to him. At other times he made statements rather than responding to questions. I garnered the sense that these evasive answers were at least in part driven by his perception that his ‘side of the story’ had not been presented on his behalf. That said, I formed the impression that the father was doing his best, commensurate with his capacities, to engage in the trial process. He was courteous and did not respond to questions in an aggressive or impatient manner. His cross-examination lasted two full days during the 2023 trial dates. He remained composed for that time, save for on occasions where he became emotional (but in no way aggressive or impatient) and wept.
Many of the questions put to the father in cross-examination by both the mother and the ICL were of complex construction for a witness with an interpreter. A significant quantity of these questions were grounded from documents in English that were not provided to the father at the time the question was asked. I had little confidence that he knew the contents of the documents grounding the questions asked. I found the father’s answers through a long cross-examination to be broadly consistent with his affidavit evidence and, for the most part, demonstrative of insight he has gained over the course of the litigation (although, as will be discussed, he still needs assistance in this area).
The mother
The mother gave most of her evidence through an interpreter, although she at times understood and responded to simple questions (or parts of questions) in English. She presented as thoughtful and did her best to respond to the questions asked.
The mother, not unlike the father, often did not respond directly to the question being asked of her, but instead made unresponsive statements. I garnered the impression that she too felt that her side of the story was not being adequately explained.
The complexities of her presentation and the internal conflicts that she encounters were reflected in juxtapositions in her evidence as identified later in these reasons. The Court Child Expert said the mother had some awareness of her conflicting and contrasting attitudes towards X spending time with the father and as to the challenges to her ability to deal with them.
The Court Child Expert
The Court Child Expert met with X and/or the parents on the following occasions:
·On 13 December 2018, in person with each of the mother and father separately;
·On 17 September 2020, via video conference with the mother and father separately;
·On 30 September 2020, in person with X alone, and then with X and the mother, and then with X and the father;
·On 23 March 2022, via video conference with the mother and father separately; and
·On 28 March 2022, in person with X alone, and then with X and the mother. On this occasion, the Court Child Expert attempted to conduct an observation session between X and the father. Despite “several attempts to encourage her”, X refused to take part in the session with the father, because she was “adamant that she would not see [him]”.
She produced three reports, the first in time being a three-page memorandum on 13 December 2018. The contents of latter two were the focus for the purpose of the trial, the first being a s 62G report dated 30 November 2020 (“the first family report”), and the second a s 62G dated 19 April 2022 (“the updating report”), just before the trial was set to commence in May 2022, marked Exhibit C1 and C2 respectively. Although the family reports are now somewhat outdated, there was no suggestion that their relevance has diminished or that the observations and recommendations contained therein are no longer applicable. The circumstance that existed at the time of both the first and the updating report, being that X lived with the mother and has spent very little (if any) time with the father), continues to exist.
The first family report
At the time of the interviews in preparation for the first family report, X was six years old. The mother and father had been separated for over two years. During that period X had spent supervised time with her father on only one occasion at a park (see [203] of these reasons). The Court Child Expert described X as initially clinging to the mother and expressing some reluctance to see the father, but observed that once she left the mother’s presence, X was happy and confident in engaging in the interview process (at paragraph 61). The Court Child Expert said that after some initial reluctance, X quickly became “relaxed, happy and comfortable” when she started to play with the father. She opined that despite the disruptions in X’s relationship with the father, “she appears to have a warm, but complicated relationship with him”, defined by her mixed feelings of both warmth and reticence. It was the Court Child Expert’s observation that this was to be expected, given she had hardly seen the father since separation.
As to each of the parents, the Court Child Expert assessed the co-parenting relationship between them as non-existing, observing that the mother holds “mistrust and fear” towards the father and that he in turn holds “great sadness and frustration” about the mother’s inability or unwillingness to facilitate him spending time with X (at paragraph 41). She observed that the father presented as desperate to see X, and to convey to the Court that he could be trusted, emphasising that “whatever the Court decides regarding whether [X’s] time with him should be supervised or not, he will comply” (at paragraph 31). The mother presented as somewhat helpless in the face of X’s resistance to see the father, telling the Court Child Expert that she “wants [X] to have a relationship with her father, but does not know how to do this and does not want [X] to be upset each time”.
Her observations of X and each of the parents led the Court Child Expert to the following conclusion:
58. …[The father] had difficulty restraining his enthusiasm and joy on seeing [X] and this is likely to have been somewhat overwhelming for [X]. It is a concerning situation that [X] is caught up with this level of internal confusion and internal tension about a parent whom, as reported by [the mother], [X] loved before the parental separation. If this situation continues, [X] may completely reject her father due to the discomfort and emotional confusion she experiences and this is likely to impact on her psychological development and her developing identity.
(Emphasis added)
At that point in time, it was the Court Child Expert’s recommendation that X live with her mother and spend increasing time with the father, and that each of the parents obtain professional assistance to develop their parenting capacities.
The updating family report
In the one and a half year period between the interviews with the parents and X for the first family report and when the Court Child Expert met with them for the updating family report, X had spent three additional periods of time with her father at F Contact Service in October and November 2020 (in the shadow of the release of the first report). Outside of the Court proceedings, the mother and the father had no further contact with one another during this period. Notwithstanding this lack of contact:
(a)X’s fear and anxieties toward the father had intensified, and her rejection of the father had become more pronounced;
(b)The mother’s own anxieties about the father also appeared to have intensified; and
(c)The mother expressed her ongoing desire for X to spend time with the father but said that he was not helping himself in that “he is not kind” and “his behaviour has not changed”.
The dynamics observed by the Court Child Expert in the first family report remained and had heightened in the updating family report. For example, the father’s acute frustration and sadness at not being permitted to spend time with X was evident, and manifested in comments to the Court Child Expert including to the effect of that if he does not see X, ‘whom would I be living for then’?. The mother similarly expressed her ongoing fear of the father, in particular of him finding out her and X’s residential address, on a number of occasions rejecting proposals put to her by the Court Child Expert to facilitate X communicating or spending with the father on the basis of her concern that it would lead to him discovering this information.
Of most concern, however, was the progression in X’s presentation between the two reports. In the first report the Court Child Expert was able to overcome X’s initial reluctance and get her to separate from her mother to spend time with her father for the purpose of the interviews. However, by the time of the updating report, X was so adamant in her refusal to seeing her father that no amount of encouragement from the Court Child Expert could overcome her refusal, and the interview did not proceed.
The updating family report records that by the time of the interviews in March 2022, X had stopped referring to the father as her “dad” and instead called him by his first name. She expressed her ‘knowledge’ of violent events which she believed occurred between her parents and of these Court proceedings, saying to the Court Child Expert “I know everything… I was three years old and my Dad was hitting my mother a lot and the police say [the father] is so dangerous to people” (at paragraph 44). She reiterated her fears that the father would “kill” or “bash” her mother, or hurt her maternal family members (notwithstanding they live in Country L), and rejected suggestions from the Court Child Expert that she had previously enjoyed her time with and loved her father. Again, this hardening in X’s views occurred despite her not having spent time with the father since November 2020, one year and four months prior to the interviews.
These developments caused the Court Child Expert to opine:
67. …[X] appears to have been caught up in the dynamics between her parents and to be in the long emotionally damaging process of rejecting [the father]. [X] presents as being both an active and playful child and, of great concern, a child burdened with fearful thoughts of what may happen to her mother and extended family.
The Court Child Expert opined that X was in an “emotionally confusing situation”, that she was suffering under the “enormous burden of secrecy” to hide personal details for fear that her father might discover them, and that she had plainly taken on many of the worries of the mother in a way that was not appropriate for a seven-year-old child (as X was at the age of her interviews).
The oral evidence
The Court Child Expert’s evidence at trial reinforced her significant concerns about X’s wellbeing. Her plain view was that each of the mother and the father need to do things differently to protect X’s psychological safety, but that there was no easy solution to the difficult circumstance this family is in. She made clear that the current circumstance is not good for X, nor would forcing further time with the father if nothing else changed.
It was the Court Child Expert’s firm view that the cause of X’s current presentation is complex and difficult to deconstruct. She rejected the invitation of the mother’s counsel to say that X’s fears and worries are necessarily the product of her exposure to family violence or from her own lived experiences, although she did not put into doubt that X feels those things. She said:
…It’s very possible that [X] was fearful about seeing her father in the court, and it’s very possible that she is frightened that her – she believes deeply that her father – that her father will hurt her mother. She believes it to the extent that it is of great concern psychologically for a child carrying those beliefs and needing to have, I believe – she is now [in need of] some therapy…
(Transcript 2 June 2023, p.315 lines 43–47)
She said unequivocally that X knows about things that she should not know about, although again she said the source of that knowledge was difficult to ascertain. She said it was possible that X had been exposed to family violence between the parents, but that it was also likely that she had been exposed to the mother’s highly anxious beliefs. In this regard she observed that:
The fact is that [X] was reflecting an anxiety about whether the place was safe for her mother in the same way that her mother reflects her own anxiety when [X] is separated from her at the contact centre, from those notes, or going to speak with the father. Very parallel types of anxiety, which are why I talked about [X] needing some psychological help and therapy. I’m not talking about family therapy, I’m talking about assistance in being able to deal with these very conflicting feelings, heavy, heavy feelings, fears and feelings in [X].
(Transcript 2 June 2023, p.323 lines 5–12)
The Court Child Expert said that X and the mother are closely entwined, and as a result X has “taken on a very big responsibility”. That is, responsibility (in X’s mind) to keep the mother and her family safe and to shoulder the mother’s anxieties. She said that this circumstance raises the question of:
…is it safe for [X] in relation to holding huge secrets, a burden most children can’t do. It’s very, very difficult for children to hold on to secrets. And that’s also about safety, psychological safety for a child.
(Transcript 2 June 2023, p.318 lines 6–9)
It was the Court Child Expert’s opinion that for X, having to hold on to these secrets and to navigate the conflicting narratives she receives about her father (being that he is someone to be feared, sitting in complete contrast to her past feelings that he was someone whom she loved) was “too complicated” to live with. She said children of X’s age cannot deal with those sorts of uncomfortable feelings. It was her evidence that X’s response to them has been to “identify with her mother and reject father”. In this sense, the Court Child Expert’s concerns recorded in the updating family report, as recorded at [65] above, were prophetic.
As to X’s developing feelings towards her father since the first report, the Court Child Expert said:
…rejection is a very, very difficult experience for a child. Very difficult, because they’re not just rejecting the other person, they are also rejecting some aspect of themselves, and that’s the other – the other parent of them and their history. So rejection was occurring when [X] was six when I first saw her and then again when she was seven […], where it was really consolidating into a solid wall and making it extremely difficult for her to consider anything else, and – very difficult.
(Transcript 2 June 2023, p.319 line 44 to p.320 line 3)
She reinforced this conclusion by saying that if X’s current presentation was left unchecked:
…it could be that she – her self-esteem is impacted, and her feelings about herself which is not a surface thing, necessarily, it’s something quite deep about her identity, and feeling okay about herself despite repeating these comments, “Dad will kill my mum” or “Dad will kill my grandma” or whatever it is. That means that inside of herself, she has a split inside of her own identity. I’m not talking about either the mother or the father, I’m talking about the child and the impact of her identity formation as she grows and not only is she rejecting her father, but she’s rejecting a piece of herself. And sometimes one has to make the decision of no time in order for the child to grow regardless, sometimes one has to look at that piece and say, well, should the child have a bit more information about the history – the other side.
(Transcript 2 June 2023, p. 337 lines 29–39) (Bold emphasis added)
The Court Child Expert elaborated that children who reject their mother or father often grow up to struggle with identity formation, experience relationship difficulties, mental health challenges like depression, and find it difficult to discern what is true and what is not true in the world. This is a very serious risk for X.
As to the path forward, the Court Child Expert made clear that both X and the mother need therapeutic support, regardless of whether the father spends time with X or not. It was central to her recommendation that X spend time with the father that he also undertake therapy and coaching of his own.
The Court Child Expert warned that X may not be able to form a relationship with the father alone in a contact centre “because of all her own issues [and] his issues”, and that forcing her to do spend time in such an environment would be very difficult for X. She suggested that time between X and the father is more likely to be successful if it is supervised, initially, by a person who both parents trust, and if other family members were present “to bring down the emotion”.
THE LAW AND FINDINGS
The current enquiry as to the future parenting of X is regulated by Pt VII of the Act. The Act requires that I make such orders for X as are proper, with X’s best interests being the paramount consideration in my decision as to what orders should be made. In order to determine how X’s best interests will be served, I must consider the factors set out at s 60CC of the Act. That section identified two “primary considerations”, being:
(a)The benefit to X of having a meaningful relationship with both of her parents; and
(b)The need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing those two primary considerations, I am required to give greater weight to the need to protect X from harm.
Section 60CC(3) then sets out all of the additional factors which must be considered in determining X’s best interests. They include, for example, X’s views, the nature of her relationship with each of the parents and other significant people in her life, the effect of separation from them and the capacity of each of the parents to care for her.
Meaningful relationships
The Act does not define a “meaningful relationship”. The focus of this consideration is on ensuring a child will have a meaningful relationship with both parents going forward into the future, to the extent that is consistent with their best interests.
On the mother’s proposal, X would not have any relationship, meaningful or otherwise, with the father. On the ICL’s proposal, X would have no relationship with her father but the “door would be ajar” for X to seek the father out when she is older should she seek to do so.
On the father’s proposal, X would be given the opportunity to establish and benefit from a meaningful relationship with him.
Risk of harm: the law and standard of proof
Whether or not there exists a future risk to X in spending time with either of her parents involves three steps:
(a)The identification of the nature of the risk – be it of physical, emotional or psychological harm;
(b)Secondly, the determination of the likelihood of the harm occurring; and
(c)Finally, the determination of the magnitude (that is, the seriousness) of the harm if it occurs.
The Full Court in Isles & Nelissen (2022) FLC 94-092 has recently made clear that the process of weighing both the likelihood and the seriousness of an identified harm informs whether the risk of such harm is acceptable or unacceptable. It further made clear that the determination of risk “is an evidence-based conclusion and is not discretionary” (at [85]), and that the predictive exercise is informed by findings made as to past events.
Findings of the fact of past events must be proven to the standard set out in s 140 of the Evidence Act 1995 (Cth), which is in the following terms:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.
The considerations set out in s 140 reflect that, ordinarily, where serious matters are alleged or where the consequences of a disputed finding are serious, the Court must be satisfied on a careful evaluation of the whole evidence that clear and cogent proof of the allegation is available.
The mother in this case makes a number of very serious allegations that the father had occasioned family violence upon her to ground her case as to risk. The mother bears the onus of proving the facts she asserts to the standard identified in s 140 of the Evidence Act (see also M v M (1988) 166 CLR 69).
Family violence is defined in s 4AB of the Act as being:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Significantly, for the purpose of these reasons, s 4AB(3) gives a definition for where a child will be considered to have been exposed to family violence, as follows:
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The consequences to the parenting determination, should the mother establish her contentions, are very significant. Hence, clear and cogent proof of the mother’s allegations are required.
Risk of harm: family violence perpetrated by the father
As recorded above, the mother’s contention as to risk is grounded from assertions that throughout their relationship, the father perpetrated severe family violence upon her, including by physically assaulting her, verbally abusing her, and isolating her from her family. It is also grounded from assertions that the father historically has been unable to regulate his behaviour.
Family violence prior to moving to Australia
The mother in her affidavit gave broad evidence to the effect that the father was violent towards her as soon as they married, and throughout their relationship. By way of example, she said:
13.Straight after [the father] and I married in […] 2011, we moved in together into a house in [City Y]. Our relationship was unstable from the beginning and [the father] was violent towards me from this time.
(Mother’s affidavit filed 8 April 2022)
Coffee table incident – Country C in or around 2012
The earliest specific incident of family violence alleged by the mother in her affidavit was prior to X’s birth, while the parents were living in Country C. It was her evidence that the discovery of the father’s fertility difficulties in 2012 increased the father’s anger and that he became physically aggressive towards her. Her affidavit recorded that:
18.…I remember on one occasion, I can't remember what I said to [the father] but he flew into such a rage he picked up our coffee table which had a glass top on it. He threw it down on the ground and the top smashed everywhere. I was so scared I froze, I didn’t know what to do. [The paternal grandmother] was present for this incident. She didn’t do anything to stop him but she did help me clean up afterwards.
(Mother’s affidavit filed 8 April 2022)
In broad terms, counsel for the mother put to the father that he “picked up a coffee table which had a glass top on it, threw it to the ground and smashed it everywhere”. Notwithstanding the vagaries of the proposition put to the father, he denied that such an event had ever happened.
The father led oral evidence from his mother, the paternal grandmother, in his case on the final day of the trial. Neither the mother nor the ICL put this incident to the paternal grandmother in cross-examination.
The counselling notes produced by P Family Services under subpoena, being the counselling service with whom the father engaged between May 2019 and July 2021, included the following entry in June 2019:
Client admitted that in [Country C], he used to scream and yell when he used to be angry with his wife, he also used to throw stuff but he said that this was rare and he never was physical. He knows now that he can't do this in Australia.
(Exhibit ICL8, page 19)
The father’s counsellor, being a person whom he trusted, in the course of a counselling session, made this entry. I find that this concession by the father, in those circumstances, carries weight.
On a consideration of all of the evidence, I cannot be satisfied to the requisite degree that the father while in Country C “picked up [the parents’] coffee table” and “threw it on the ground”, smashing it everywhere, as alleged by the mother in her affidavit. However, I accept consistent with the father’s concession recorded above and find that he “used to scream and yell” at the mother when in Country C, and that he threw items (it is not clear whether he did so in the mother’s direction). I find that this behaviour meets the definition of family violence within s 4AB of the Act, and that it caused the mother to be fearful of the father.
Physical assault of the mother when pregnant – Country C, 2014
A second significant and concerning incident of family violence was alleged to occur when the mother was seven or eight months into her pregnancy with X. She said that upon telling the father of her intention to purchase some things for the baby, the father:
20.… went completely crazy and became so angry. I remember he was saying things like “My mum will do it, you dont do it, my mum will!”. He was yelling and started to punch me in the stomach and body more times than I can remember. I recall putting my hands over my stomach to protect it and the baby from [the father's] punches. [The father's] mum was at our house at this time and I remember her pulling him off me while I was on the floor.
(Mother’s affidavit filed 8 April 2022)
Both the mother and the father need support to reinforce their roles as parents in their relationships with X. That is, their roles as people who are there to support X’s needs, to promote her best interests, and not the other way around.
There are many aspects of this matter that are out of reach of the Court’s processes and its orders. However, as is always the case, it is appropriate that the Court do all it can to create a scaffold of parenting orders that are most likely to promote X’s best interests. Given the serious concerns about X’s current wellbeing and the vulnerabilities of each parent, it is imperative that those orders are considered, precise, and make clear to each of the parents (including Ms Samaan) what they are required to do. This was strongly echoed by the Court Child Expert, who said any orders made must be prescriptive.
The father’s time with X
The permanent severance of X’s relationship with her father, which would be the outcome of both the mother and the ICL’s proposed orders, is disproportionate to the risk I have found the father presents to X. I find that it is in X’s best interests to spend time with the father. This finding is grounded both from a consideration of s 60CC(2)(a), being the benefit to X of spending time with both of her parents, and of s 60CC(2)(b), being the need to protect X from harm, and the s 60CC(3) considerations. That is because, consistent with the evidence of the Court Child Expert, I am not satisfied that therapy alone will be sufficient to deconstruct the “wall” of rejection she has built or the anxieties she has absorbed by the mother. Spending time with the father, and experiencing him through her own eyes, was identified by the Court Child Expert as fundamental to the process of relieving X of those burdens and building her resilience.
It is appropriate that X’s time with the father progresses very slowly and holistically, scaffolded by way of a number of measures so that:
(a)X will not be overwhelmed;
(b)The father and mother will be able to engage in appropriate therapy and coaching, so that they can each develop strategies to deal with X spending time with the father;
(c)X will be able to experience her own reality of the father, as she did at the park in April 2020 and at F Contact Service in October and November 2020, rather than as reconstructed and reinforced by exposure to her mother, so that X can recalibrate her view of and relationship with her father; and
(d)The impact of the intensity of the mother’s dependence on X can be deconstructed.
At present, there is a complete absence of trust and confidence between the parents. I find that any improvement of that circumstance could only occur slowly, by them each being exposed to the other complying with the rules and engaging with the process of therapy, and with X spending time with the father. In the circumstances of this case, face to face or proximate contact between the parents should be avoided.
Supervision of the father’s time
The mother in her evidence said that if X is to spend time with the father, it must be professionally supervised in a contact centre.
I accept the opinion of the Court Child Expert that compelling X to spend time with the father in a contact centre will be very difficult for her and is unlikely to prove successful. Consistent with her evidence, I find that it is not in X’s best interests for her time with the father to commence in a formal contact centre, given:
(a)Past attempts to do so with F Contact Service have proved disastrous for this family;
(b)I hold concerns about the capacity of both the mother and father to understand and comply with rules of contact centres, and in turn, the capacity of such centres to understand and appropriately deal with the special and complex needs of this family; and
(c)It is more likely than not that requiring time to occur in a contact centre will reinforce in both X’s mind and in the mother’s mind that the father is to be feared and X needs protection when she spends time with him.
Two options then remain, the first being that the father’s time be supervised by a community‑based supervision service, and the second being that it be supervised by a person known to the parents.
The father proposed that Ms Samaan, the paternal aunt, supervise his time with X initially.
Ms Samaan is the wife of the father’s brother, Mr LL. She is X’s paternal aunt, and was a witness in the father’s case. Ms Samaan and Mr LL have three children, who are X’s paternal cousins. The father lived with Ms Samaan, Mr LL and their children for four years, from shortly after he and the mother separated in 2018 to late 2022.
The mother resisted that proposal. Her evidence on this topic was in her affidavit, as follows:
160.… I do not want any of [the father’s] family involved in any supervision of his time with [X].
163. The incident at [F Contact Service] in [mid-2019] really [traumatised] me and brought back memories of [the father’s] violent behaviour towards me. [The father] breached the ADVO and refused to act appropriately at a professionally supervised contact service. This makes me worry that he would behave just as badly, or even worse, if it were a family member supervising his contact.
164. [X] and I had only known [the father’s brother and [Ms Samaan]] for about 1.5 months after we arrived in Australia. We have not had any communication with them since we left their house in […] 2018. On the date they attended the home after [the father] abused me [in] 2018, they were unable to convince him to return [X] in my care. As such I do not feel confident that they would prioritise [X’s] wellbeing over [the father’s] demands.
(Mother’s affidavit filed 8 April 2022)
The mother was not challenged on this evidence in cross-examination. That said, it does not sit comfortably with other aspects of her evidence, where she accepted that the father’s brother had financially supported the she and the father when they lived in Country C and then in Country D, and that after the family violence incident in 2018, she called the father’s brother to come and collect her and then stayed with his family (including Ms Samaan) for two weeks thereafter with X. The intake documents from F Contact Service, included in Exhibit ICL1, includes the mother’s account of events following separation, being that the police offered her refuge accommodation or to “go stay with someone that is safe”, and that “the [father’s brother] said he would keep her safe”. Similarly, the DCJ report made on the day after separation includes commentary that:
…The only person that [the mother] knows here is [the father’s brother who…] is supportive and has spoken to [the father] about the violence and how it is wrong and against the law. [The mother] feels safe at [the father’s brother’s home] and will remain there for the time being.
(ICL3, page 312)
I find that the mother at that time trusted the father’s brother, and implicitly, Ms Samaan.
The father relied on an affidavit Ms Samaan filed on 6 April 2023. Ms Samaan was cross‑examined, and gave her oral evidence in English without an interpreter. On 18 May 2023 during the course of the trial but before her oral evidence, the father filed an Undertaking of Ms Samaan which acknowledged that she understood her responsibilities and obligations as a supervisor of X’s time with the father, that she promised the Court she would comply with the terms of the undertaking and understood it had the same effect as an order of the Court, and that those obligations had been explained to her by a lawyer. Ms Samaan’s Undertaking became Exhibit F8.
In her oral evidence, Ms Samaan recounted her significant qualifications, including working for over 10 years with children, of which several were in a child protection capacity in Country C. She was asked a number of questions about her understanding of the proceedings and the role she would undertake as a supervisor, should the Court make orders to that effect. Her evidence on these topics was considered and impressive.
Importantly, I am satisfied that Ms Samaan has a thorough and nuanced understanding of what is required of her as a supervisor. She said:
…I understand I have a hard position, I need to do something like supervisor for [the father] for [X] to safe her, …to take care [for] [X], like my daughter similar, take her from her mum to her dad and keep my eye on her, [keep her safe], protect her. If she… [is] crying I need to know what – everything is what I can do, what – how to solve the problem with her.
(Transcript 18 May 2023, p.170 lines 25–30)
It was her evidence that she would cease time between X and the father if anything “harmful” occurred, be that physical or emotional. Ms Samaan described what steps she would take to address a situation where X becomes upset when spending time with the father, including taking X into a separate space, assuring X that she could trust her and explaining to X that her role as a supervisor was to protect her. Ms Samaan volunteered, not in response to any question, that if she felt it necessary to call the police because of concerns for X’s safety in the father’s care, she would do so. When pressed, she said even though the father was her brother in law:
That’s my – my like responsibility, but I know [the father has been] fighting four years to just hug his daughter. I trust him, but I need to do my job, he need to do his job. [The mother] do her job. I’m trying to help.
(Transcript 18 May 2023, p.198 lines 23–26).
Notwithstanding her allegiance with the father, I did not find her evidence to be in anyway unreliable. She expressed a degree of independence from the father, saying that she sees both sides of the story. I accept that evidence. By way of example, when asked what she would do if the father was showing physical affection to X to which she was not receptive, Ms Samaan responded:
…I’m going to tell [the father], “Come down”. Like, “Relax. Need time. You need to do many things to make her laugh – love you more, feeling with you more. Then you can like smooth the gap between you and her, and hug her or do something more. She will be more acceptable for her”.
What would you do if [the father] was not listening to you?
He will listening. I think so. [If he is] not listening, I’m going to – I raise my hand, and say, “I’m not doing again” because if he not listening, I can’t do my job.
(Transcript 18 May 2023, p.199 lines 13–20)
When asked how she would respond if X refused to go with her at changeover, or if she changed her mind at any point during the time, Ms Samaan said that first she would attempt to explain to X that they were going to have fun and tell her about the activities they might do, but that:
I’m going to tell her, “We’re going to turn back for your mum, but just I want to tell you something. We will get – you will get fun. You will see – meet your relatives, your friend, your – like playing”. If she accept, I’m going to complete my way. If not, I’m going to turn back for her mum because it’s not good for her mental – like, to go force her. I’m not complete my way.
Do you think she should be forced to see her father if she doesn’t want to? If she crying and refuse to come, to complete the way with me, to – crossing for her dad, I’m going to say. She’s – I’m not force her to do something not like it. Maybe next time she will accept. Maybe one after is better for her.
(Transcript 18 May 2023, p.193 lines 29–38)
Ms Samaan’s evidence was considered and child-focussed. Her answers, unlike the many of the questions put to her, were grounded from the context of any given situations. I accept her evidence.
I find that Ms Samaan has the skills and the desire to supervise the father’s time with X.
In submissions, the mother contended that even if Ms Samaan was a person equipped to supervise time with the father, she is an inappropriate supervisor because she “is not somebody that the mother trusts”, because she puts into doubt the mother’s account that the father physically assaulted her in 2018. This did not form part of the mother’s evidence. The concerns she raised in her affidavit as recorded at [290] above were directed to the ability of the father’s family to regulate his behaviour. For the reasons given above, I am confident that Ms Samaan will be equipped to modulate the father’s conduct or that she will remove X from any situation if the father become aggressive or behaves inappropriately.
In cross-examination, Ms Samaan said that although she and the mother currently have no relationship, she held no ill feelings towards the mother and considered her like a sister. She expressed the importance of the mother building trust in her, should she be nominated to supervise the father’s time with X. She also acknowledged plainly that X is likely to see her as a stranger. She agreed in her evidence that she would happily meet with the mother and that she would enjoy spending time with X to facilitate her relationship with the paternal family. I give weight to all of the matters identified above, and couple it with the mother acknowledging that X would benefit from a relationship with the paternal family, provided it was safe. I accept this is not the mother’s primary position, but it is an important concession she makes, to her credit.
Having regard to the Court Child Expert’s evidence that:
(a)A family member would be appropriate to supervise time between X and the father, but that they should be supplemented initially by an external supervisor;
(b)That it is important that the mother trusts the supervisor, whoever it is; and
(c)That having other people present would be more conducive to a “safe supporting environment” for time to occur between X and the father;
I find that the success of X’s reintroduction to the father pivots on her initially spending time with Ms Samaan and her paternal family, and the mother learning to trust that they will keep X safe. I find that the paternal grandmother, who gave evidence as to caring for X when she lived outside Australia, including bathing her and playing with her in the park, will also be an important person to facilitate this process. I accept the Court Child Expert’s evidence that the process of reintroduction should also include an aspect of engagement with a professional supervisor.
The joinder of Ms Samaan as a party to the proceedings
At the time of the trial, Ms Samaan was not a party to the proceedings. Prior to the delivery of these reasons, she agreed to be joined as a party. Submissions were sought from each parent and the ICL as to that joinder. The father consented to it. The mother opposed it. The ICL did not want to be heard on the issue.
I am satisfied an order joining Ms Samaan to the proceedings is appropriate and in X’s best interests, in the absence of a formal application having been made, because:
(a)Ms Samaan gave evidence that they would do all things as were necessary to promote X’s best interests, to herself having a relationship with X, and to assist with the establishment and the development of X’s relationship with the father;
(b)No material challenge was made to this evidence, and no submission was made putting into doubt Ms Samaan’s commitment to facilitating X’s relationships with her paternal family;
(c)I am satisfied that it is in X’s best interests to make orders to give effect and substance to Ms Samaan’s assurances as given in her oral evidence, grounded from her Undertaking to the Court as a supervisor of time to be spent. These orders, including by way of injunctions binding Ms Samaan, ought to give some assurance and confidence to the mother;
(d)The role that Ms Samaan might play in facilitating this time was raised by the Court Child Expert in her oral evidence and was an important subject of her expert opinion as a way forward promoting X’s best interests;
(e)Although it was not explicitly canvassed at trial, there was no evidence given or submission made that suggests a prejudice would be occasioned to either the mother or the father if Ms Samaan is joined as a party; and
(f)Such approach applies the relevant principles in the conduct of child-related proceedings (s 69ZN of the Act) and the general duties of the Court identified in s 69ZQ(a) and (g) of the Act.
In the circumstances of this case, an exercise of power to join a party by way of s 69ZR of the Act meets the objects of Pt VII, Div 12A of the Act. Orders will be made accordingly.
The progression of time
For all of the reasons above, I find that it is appropriate that X’s time with the father progresses as follows:
(a)First, X spend time with Ms Samaan (and the paternal grandmother, if possible), with the mother being encouraged to be present, in a public place (such as a café for coffee or lunch) so that X has the opportunity to see them interact and so that the mother can participate in the process of reintroduction, giving assurances to X without the father being present;
(b)Next, X spend time with Ms Samaan (and the paternal grandmother, if possible), and a professional community-based supervisor, with the mother also being encouraged to be present so that she can meet the supervisor. Ms Samaan will be permitted to bring any of her own children to attend this time as she sees appropriate, but the father will be again restrained from attending this time;
(c)Then, for another session with Ms Samaan (and the paternal grandmother if possible) and the supervisor, but without the mother. Again, Ms Samaan will be able to bring her children to this time, but the father will not be permitted to attend;
(d)Then, X will spend a total of three sessions with Ms Samaan and the father (and possibly the paternal grandmother and Ms Samaan’s children), supervised by the professional community-based supervisor. Each of these sessions will be requires to occur in a public place;
(e)After those three sessions, Ms Samaan will become the supervisor of X’s time with the father, and that time will slowly increase. After a period of four months, the need for Ms Samaan to supervise the father’s time will be discharged, but instead he will be required to spend that time in the vicinity of Ms Samaan;
(f)Finally, after a further period there will be no restriction on the father spending time with X supervised or in the vicinity of Ms Samaan during the day, and his time with X increase gradually, including to overnight time in November 2024 (more than 12 months away) with Ms Samaan and/or the paternal grandmother to be present in the home initially.
The gradual progression in X’s time with the father will eventually, by September 2025, lead to her spending regular time with the father each alternate weekend, from after school on Friday to before school on Monday, and during the school holidays.
I find that this gradual progression of time driven primarily by the father’s family will:
(a)Assist X to re-establish and then begin developing a relationship with the father in a familial and natural environment;
(b)Give the mother some solace that X is safe, adopting the program opined by the Court Child Expert; and
(c)Assist the father in the circumstances of him being with X in a way that will naturally reduce and control the intensity of his initial exchanges with X – so that spending time becomes part of each of their normal routines, rather than a rare and extraordinary event.
The father did not contend that he could not meet the cost of professional supervision as he had done in the past with assistance from his family. An order shall be made that the father meet the cost of supervision.
Electronic communication
So as to further develop for X some aspect of familiarity with initially the paternal family, and later to reinforce the presence of the father in her life, orders will be made for electronic communication by FaceTime. An important integer of this program will be that the father shall not initially engage in it, so as to avoid indirect contact with the mother in the early stages of her engaging in therapy, and to provide her with some assurance as to the graduation of the father’s reintroduction to X’s life.
The need for the mother and father to engage in therapy
Both the mother and the father, so as to promote X’s best interests, must engage in therapy to deal with their own complex presentations. They each agree to do so.
On the last day of trial, the following order was made:
3. The [ICL] is to do all such things as is necessary to obtain from the Court Child Expert the name and contact details of a suitably qualified therapists to provide the requisite therapy and assistance for each of the parents and the… as opined during the course of the [Court Child Expert’s] oral evidence today in promoting the interests and needs of the child and that upon receipt of such information the [ICL] is directed to provide that information be email to the solicitors for each of the parents and my chambers. Upon receipt of that information the document will be recorded as Exhibit ICL14 in the proceedings.
An email was received from the ICL in compliance with that order on 9 June 2023. It was marked as Exhibit ICL14, and records relevantly as follows:
The primary difficulty in finding separate therapists for the mother, child and father is the distance and practicality for the mother to take the child to a therapist. The other difficulty of course is the need for [a Language B] speaking therapist who is skilled in working with clients who may not want to attend. The father would benefit mostly from a professional who is able to also provide coaching, but the person needs to be [Language B] speaking.
However, the following are possibilities:
For [X]: [Ms U] who is a Clinical Psychologist and who is Medicare accredited (important because of the cost and financial issues) [T Psychology] ph: […]. I am not sure where she is based.
[T Psychology] has other psychologists also. They may be able to suggest an alternative if the distance is too great.
[The mother]: Possibly another therapist part of [T Psychology] may be also helpful.
[R Organisation] Refugee service - the one closest to her residence; provides free counselling and the mother has attended [R Organisation] in the past.
[The father]: [R Organisation] (the one closest to his residence has male [Language B] speaking therapists who may be able to deliver a service which is more geared to coaching the father as well as assisting change.
[Language B] Speaking Psychologists Sydney - based in city, ph: […]; Has a male therapist – [Mr S]. I do not personally know this therapist.
If it is found that [R Organisation] would be most helpful for both parents, they must attend two different branches. [R Organisation] may also be able to suggest other therapists based on the individual needs of each parent.
(As per the original)
Having regard to the difficulties the parents have encountered in engaging appropriate professionals to assist them in the course of these proceedings, an order will be made requiring the ICL to complete a referral for each of the mother and the father to R Organisation, so that the service has accurate information as to each of the parents as recorded in these reasons.
Orders will be made requiring the ICL to facilitate X’s intake and initial engagement with the practitioners recommended by the Court Child Expert and for the mother to do all things so as to ensure X engages with and receives such therapeutic support.
The father said he would meet the costs of X’s therapy with support from his family. An order will be so made.
Restraints
The ICL’s Minute of Order included a number of restraints. In submissions, the mother and father broadly agreed to them. Orders will be broadly in accordance with those restraints, however with some amendment so that:
(a)The orders made in terms that are enforceable and the obligations and restraints they create are not confusing; and
(b)X will not be included as an object of the restraints. The balance of the orders to be made as to the prescriptive terms of time spent and by way of injunction are sufficient to promote X’s needs and personal protection as sought the mother.
An order restraining the father from approaching or contacting X, or from attending her school, is not appropriate or necessary and is refused.
International travel
Orders permitting parents to travel with children outside Australia are parenting orders within the definition of s 64D(2)(i) of the Act and hence attract the mandate provided by s 60CA of the Act, being that the Court must regard the best interests of a child as the paramount consideration when deciding whether to make a particular parenting order.
Further to the relevant s 60CC considerations, the Full Court in Line & Line (1997) FLC 92‑729 held that I am required to assess the degree of risk, if any, of the children not being returned to Australia if they are permitted to travel internationally and set out the considerations to which I ought turn my mind in assessing that risk of non-return, as follows:
(a)The existence or otherwise of continuing ties between the travelling parent and Australia;
(b)The existence and strength of possible motives of the travelling parent not to return to Australia;
(c)The existence and strength of possible motives of the travelling parent to remain in the other nominated country; and
(d)Whether the country of travel is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).
I accept, as recorded earlier in these reasons, that it is in X’s best interests to have the opportunity to travel to Country L to continue her relationship with the maternal grandmother and to experience the maternal family. Country L is a signatory to the Hague Convention. The mother’s desire for X to travel and is in her interests. She has identified her intention to continue to live in Australia with X, and I accept that evidence. The mother and X have established a life in Australia, including by way of the mother’s employment. X is well settled in school and doing well. Having regard to all of the factors above, I find that the risk of the mother not returning X to Australia should she be permitted to spend time with her family in Country L is low.
It is in X’s best interests that an opportunity exists for her relationship with the father and the paternal family to bed down and consolidate over a period of at least twelve months, prior to X travelling from Australia. It is in her best interests to experience the reality of her father, who loves her, and her paternal family, and to substantially undertake her process of therapy before any international travel occurs.
The mother has no funds to pay any bond to secure X’s return to Australia. To make such an order as a condition of travel would be self-defeating. The mother has expressed no intention to take X to any other country save for Country L. In those circumstances, orders will be made restricting her travel to Country L and restraining her from taking X to a country that is not a signatory to the Hague Convention. I find this will give an aspect of security to mitigate the low risk that she would not return to Australia.
For all of these reasons, orders will be made incentivising both the mother and X to engage with and facilitate the parenting orders to be made, coupled with a requirement as to notice of travel, including the provision of return tickets to Australia.
The role of the ICL going forward
Given my findings about the parents’ level of sophistication in navigating the Court system, understanding the obligations of orders, and in the father’s case, his variable legal representation, the ICL will play a pivotal role in the success of the proposed regime going forward. It is appropriate that the ICL undertake many of the administrative tasks necessary to ensure the orders are able to be complied with, including:
(a)Referring both the mother and father to R Organisation;
(b)Engaging a therapist for X;
(c)Providing documents to X and the parents’ therapists; and
(d)Confirming that the preconditions of the mother’s international travel have been met.
An order will be made discharging the ICL from the proceedings after they have undertaken that pivotal role.
Explaining these reasons to X and the parents
As recorded, these are child-related proceedings to be conducted in accordance with the principles set out at s 69ZQ of the Act. Section 69ZQ(1) imposes a duty on the Court to:
(c) give directions or make orders about the timing of steps that are to be taken in the proceedings; and
(d) in deciding whether a particular step is to be taken—consider whether the likely benefits of taking the step justify the costs of taking it; …
The orders made are not substantially different to previous unsuccessful orders attempting to reintroduce the father into X’s life. In view of the Court Child Expert’s evidence that X is likely to experience some emotional difficulty in recommencing spending time with the father, cast against my findings as to the mother’s capacity to support X’s relationship with the father, I consider it necessary that the orders made be explained to X by someone other than the mother.
A Court Child Expert will explain to X the orders to be made promoting her interests in the future, in a child-focussed setting using appropriate language, so that there is a clear communication to X of those matters.
Each of the parents will have the benefit of a Language B interpreter for the delivery of this judgment, to assist their legal representatives explaining to them their obligations under the orders and these reasons. They are each encouraged to obtain a translation of these reasons.
CONCLUSION
In the event the regime proposed by this determination fails, both parents may be confronted with unpalatable, blunt and binary options. One possible outcome is for X to continue to live with her mother, to change her name, to live anonymously and have no contact with her father. One alternative is that only way in which she might have a relationship with her father is by virtue of court order to live with him and not spend time with her mother for a restricted period.
Each of the parents hold the key to avoid opening either of the doors to the extreme outcomes foreshadowed in the prior paragraph.
For all of the above reasons, I make the orders as set out herein.
I certify that the preceding three hundred and thirty-four (334) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 28 August 2023
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