Malek & Kambar
[2024] FedCFamC2F 1519
•29 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Malek & Kambar [2024] FedCFamC2F 1519
File number(s): SYC 1977 of 2022 Judgment of: JUDGE LIVERIS Date of judgment: 29 October 2024 Catchwords: FAMILY LAW – PARENTING – where the biological father of the child is not known to the child – where the mother had an extramarital affair with the biological father for many years – history of abuse alleged by the mother during her relationship with the biological father – whether there is an unacceptable risk of harm to the child in being told about her biology and being introduced to the biological father at this stage of her life – biological father found to have engaged in family violence against the mother – finding that there is an unacceptable risk of harm to the child – orders that the biological father spend no time and have no communication with the child Legislation: Evidence Act 1995 (Cth) s 140(1)
Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 65D(1), 68LA, 69VA, 117
Cases cited: Cao & Cao [2018] FamCAFC 252
Denton & Denton (No 3) [2024] FedCFamC1F 476
Gillen & Lindo (No 2) [2021] FedCFamC1F 211
Grella & Jamieson [2017] FamCAFC 21
Isles & Nelisson [2022] FedCFamC1A 97
Keane & Keane [2021] FamCAFC 1
M v M (1988) 166 CLR 69
Re C and V (1983) FLC 91-333
W and G (No 1) (2005) FLC 93-247
Division: Division 2 Family Law Number of paragraphs: 141 Date of hearing: 2-4 September 2024 Place: Adelaide Counsel for the Applicant: Ms Grace Solicitor for the Applicant: Gar Lawyers Counsel for the Respondents: Ms Conte-Mills Solicitor for the Respondents: Farah Lawyers Counsel for the Independent Children's Lawyer: Ms Ingenito Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates ORDERS
SYC 1977 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MALEK
Applicant
AND: MS KAMBAR
First Respondent
MR HAMDA
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
29 OCTOBER 2024
THE COURT ORDERS THAT:
1.All previous parenting orders between the parties be discharged.
2.The Independent Children’s Lawer is excused from meeting with or interviewing the child, X (born in 2016).
3.The mother shall have sole parental responsibility, and sole decision-making authority for all long-term decisions in respect to the child to the exclusion of the father.
4.The child shall live with the mother.
5.The child spend time no time with or have any communication with the father.
6.The father and the mother shall each be restrained from the following:
(a)Denigrating the other parent or any other member of the other parent’s household within the presence or hearing of the child or permitting or authorising any third party from doing so.
(b)Discussing these proceedings or any issues arising out of these proceedings with the child or permitting or authorising any third-party from doing so except for the mother after obtaining advice from an appropriately trained medical practitioner of therapist.
(c)Physically disciplining the child or allow any party to discipline the child.
(d)Making critical or derogatory remarks on social media, in relation to the other parent or referring in any way to the proceedings.
(e)From releasing, publishing or disseminating any document or confidential information relating to these proceedings to any third party.
(f)Showing or providing a copy of any documents filed in or prepared in connection to these proceedings to any non-party except for the mother after obtaining advice from an appropriately trained medical practitioner or therapist.
(g)Instructing third parties to disseminate personal communication that has been exchanged between the parties, save as to legal representatives for the purposes of obtaining legal advice, or as permitted by law to do so.
(h)Being under the influence of illegal drugs or substances in the presence of the child whilst the child is in their care; and
(i)Knowingly bringing the child into contact with any person under the influence of illicit drugs.
7.Pursuant to s68B of the Family Law Act 1975 (Cth) the father is restrained, in his personal capacity, or by any other person, third party, agent or other method from:
(a)Communicating with the mother or any member of the mother’s household including Mr Hamda, B, or the child in any way whatsoever;
(b)Approaching the mother or any member of the mother’s household including Mr Hamda, B, the child or child’s home, school, place of work, church or other place of worship, or any places of extra-curricular activity they may attend from time to time; and
(c)Either directly or indirectly or through any third party by any means whatsoever disclosing to the child, or any other person with the intent of the child becoming aware of it, that he is the biological father of the child or that the mother’s husband is not the biological father of the child.
8.IT IS NOTED in accordance with section 68C of the Family Law Act 1975 (Cth) that:
(a)Order 7 is an injunction for the personal protection of the mother and the child and any member of the mother’s household; and
(b)If the police officer believes, on reasonable grounds, that the father has breached the injunction, the police officer may arrest him without warrant.
9.The father by himself, his servants or agents are restrained from removing or attempting to remove the child from the Commonwealth of Australia.
10.The Australian Federal Police maintain the child’s name on the Family Law Watchlist, in force at all points of arrival and departure in the Commonwealth of Australia, with the interim consent order made on 4 October 2023 remaining in place until further Order of the Court or upon the child turning 18 years of age in 2034.
11.The Marshal of the Federal Circuit and Family Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders.
12.The mother is permitted to apply to the Australian Passports Office for passports to issue and be renewed for the child in the absence of the consent of the father or otherwise and insofar as it is necessary this order operates as an authority for the mother to do so.
13.The mother or her nominee is entitled to remove the child from the Commonwealth of Australia on any occasion that the mother deems appropriate and for that purpose the child’s name is to be removed from the Family Law Watchlist on any occasion the mother requests in writing and the child’s name is to be replaced in the Family Law Watchlist upon the mother’s written request.
14.The mother is permitted to provide a copy of these orders to any preschool, school or places of extra-curricular activity the child may attend from time to time.
15.The order appointing the Independent Children’s Lawyer be discharged.
16.Pursuant to section 62B and 65DA of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE LIVERIS
Ms Kambar was born in Country C in 1992. She immigrated to Australia when she was 3 years old. In 2011, at the age of 19, she married Mr Hamda.
Mr Malek was born in Country D in 1981. He is known by several aliases. In 2001, Mr Malek started a relationship with Ms E.
In early 2013, Ms Kambar was unhappy in her marriage. She was young, Mr Hamda was working long hours, and she was alone for much of the time. She was also working in the beauty industry.
While she was working, she met Mr Malek. At that time, Ms E had either recently left Mr Malek, or was in the process of leaving him, alleging family violence during the relationship. Ms E also found out that she was pregnant with Mr Malek’s child.
Mr Malek and Ms Kambar started a relationship shortly after they first met. In the initial stages, both parties claim to be unaware that the other was in a relationship with someone else. However, the relationship was kept private, and very few people knew of it.
After starting out well, the relationship began to deteriorate, with Ms Kambar alleging ongoing emotional, sexual, physical and psychological abuse. Although Ms Kambar tried to leave the relationship at times, finding it stressful, and tried not to see Mr Malek, the relationship continued on an on and off basis for a further 6 years or so.
In 2013, Mr Malek became a father for the first time when Ms E gave birth to a daughter, F. There are orders that F spends no time with and has no communication with Mr Malek.
In 2014, Ms Kambar gave birth to her first child, B. B’s biological father is Mr Hamda.
In 2016, Ms Kambar gave birth to her second child, X. When she was born, Ms Kambar believed X’s biological father was Mr Hamda.
However, in mid-2016, Ms Kambar sent Mr Malek a photograph of X. He formed the view that X resembled him, and questioned whether she might be his biological daughter. Ms Kambar maintained that X was not Mr Malek’s child.
Although the parties dispute the circumstances in which it took place, the relationship ended in mid-2019. Around this time, Mr Malek had growing thoughts that X was his child.
He considered that Ms Kambar was acting deceitfully to him and to Mr Hamda by continuing to say that X was not his child, and he felt a moral duty to tell Mr Hamda. Mr Malek contacted Mr Hamda and told him about his affair with Ms Kambar. He also started asking Ms Kambar for a paternity test to be conducted.
Mr Malek’s requests for a paternity test continued into 2020. These proceedings were commenced on 25 March 2022. Mr Malek sought relief including a declaration as to parentage under section 69VA of the Family Law Act, an amendment to X’s birth certificate and orders allowing for X to spend time with him.
An order for parentage testing was made in mid-2022. DNA testing occurred in late 2022. That testing confirmed that Mr Malek is X’s biological father.
Although the parties are in dispute about the contact that X had with Mr Malek between 2016 and 2019, X does not know that Mr Malek is her biological father. She knows Mr Hamda as her father. Mr Malek was introduced to X and B as an uncle.
Mr Malek has not seen X since 2019, and X is unaware of these proceedings. Ms Kambar has not spoken to Mr Malek since June 2020.
For all of these reasons, the ICL seeks an order under s 68LA(5B) of the Act that he is not required to perform the duty to meet with X and provide her with an opportunity to express any views about the matters in the proceedings, on the basis that there are exceptional circumstances that justify him not doing so.
The parties agree that Ms Kambar should have sole responsibility for making long-term decisions for X. They also agree that X should live with Ms Kambar.
Mr Malek seeks orders that X spends time with him. He initially sought orders for unparticularised supervised time to commence on the second Sunday after final orders were made, and after 3 months, on each alternate Sunday on an unsupervised basis. He also sought the facilitation of telephone communication.
At the conclusion of the evidence at the hearing, Mr Malek submitted an amended minute of final orders sought. He now seeks final relief that the parties separately engage in family therapy about telling X about her parentage, following which, 6 months after the date of the final orders, X spends time with him at a supervised contact centre. He seeks unsupervised time to commence 12 months after the date of the orders, for 3 hours each alternate Sunday and at other times as may be agreed. He now seeks telephone communication with X following the commencement of supervised time.
Ms Kambar seeks orders that X spends no time and does not have any communication with Mr Malek. She also seeks restraints be ordered against Mr Malek in relation to X. On a multifaceted basis, Ms Kambar contends that there are risks to X if she commences any form of relationship with Mr Malek, and that it is not in her best interests for her to do so.
Against this background, the questions in this proceeding are:
(a)Are there any exceptional circumstances that justify the ICL not being required to meet with X?
(b)Does Mr Malek pose an unacceptable risk of harm to X and if so, can the risk be ameliorated?
(c)Is it in X’s best interests to be told that Mr Malek is her biological father at this stage of her life?
(d)Is it in X’s best interests to spend time with Mr Malek?
(e)Should Mr Malek’s name be recorded on X’s birth certificate?
(f)Should injunctions be ordered, and if so in what terms?
In determining these questions, I must regard X’s best interests as the paramount consideration: s 60CA of the Act.
In determining what is in X’s best interests, I must consider the six matters specified in s 60CC(2). I must also make such orders as I think are proper: s 65D(1). Because of the focus on the future, this requires me to make a discretionary judgement involving significant elements of value judgements, assumptions, necessarily uncertain predictions and intuition.[1]
[1] Grella & Jamieson [2017] FamCAFC 21
In making findings, s 140(1) of the Evidence Act 1995 provides that the court must find a case of a party proved if it is satisfied that it has been proved on the balance of probabilities. In deciding whether it is so satisfied, subsection (2) provides that without limitation, the court is to take into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged.
In her child impact report dated 6 September 2023, the court child expert Ms H observed that in considering Mr Malek’s application, were X to spend time with him it would likely require her to firstly be informed about her parentage. As such, the question of whether it is in X’s best interests to spend time with Mr Malek is intertwined with the issue of whether he poses an unacceptable risk of harm to her, and questions of her right to know of her parentage, the impact on her this will have, and timing.
The right of a child to know their parentage and the paternal obligation to tell are coextensive. The appropriate time for honouring a child’s right and discharging a parental duty depend on the circumstances of each case. There is no fixed rule or age limit. It should ordinarily be “as soon as practicable”, having regard to the probability of the truth emerging in the foreseeable future, the child’s age and maturity and the practical consequences.[2]
[2] W and G (No 1) (2005) FLC 93-247 at [21].
There must be more than a belief in truth or in the need or right of children to know their origins. The court needs to be firmly satisfied on clear and convincing evidence that a disclosure order is in a child’s best interests and is otherwise appropriate. The advantages and disadvantages of making the order at the particular stage of the child’s development have to be assessed and weighed against each other.[3]
[3] Ibid at [132] – [134]; Re C and V (1983) FLC 91-333.
Are there any exceptional circumstances that justify the ICL not being required to meet with X?
Section 68LA(5D) of the Act provides that if the ICL proposes not to perform a duty because there are exceptional circumstances that justify not doing so, the court must determine whether it is satisfied that exceptional circumstances exist that justify not performing the duty before making final orders. If the court determines that those circumstances do not exist, the court must make an order requiring the ICL to meet with a child or to provide the child with an opportunity to express their views.
Section 68LA(5C) provides that without limiting s 68LA(5B)(c), exceptional circumstances include that performing the duty would expose the child to a risk of physical or psychological harm that cannot be safely managed, or have a significant adverse effect on the wellbeing of the child.
Ms H noted that it is possible X might experience emotional distress and confusion about being provided with information about her parentage. It would likely have a significant impact on her, given that she presented with a clear and confident sense of her family. This could well impact her relationship with each of her immediate family members. Ms H considered the impact on X’s emotional health and safety should be a key consideration.
X has only ever known Mr Hamda as her father. She is 8 years of age. Ms H observed that the step of informing X about her parentage is significant, and that it is likely that she, together with Ms Kambar and Mr Hamda, would need professional support as to how to do so in a child focused manner. X will need time in order to allow her to adjust to the change in her familial perception, and Ms H considered it is possible that X might experience emotional distress and confusion about this information.
The ICL’s obligation in s 68LA(5A) of the Act is to meet with the child, and provide them with an opportunity to express any views in relation to the matters to which the proceedings relate. In light of the disclosures to X that are inherent and necessary in discharging this obligation, and the serious risks to X’s wellbeing of doing so, I am satisfied that exceptional circumstances exist that justify the ICL not performing the duty to meet with X.
Is it in X’s best interests to be told that Mr Malek is her biological father? Does he pose an unacceptable risk of harm to her and if so, can the risk be ameliorated? And is it in X’s best interests to spend time with Mr Malek?
Ms H considered that whilst there could be benefits for X to be told about her parentage and share a relationship with Mr Malek, the impact on her emotional health and her safety should be a key consideration.
In devising the tests for the magnitude of risk which will justify denying a parent access to a child, courts have endeavoured, in efforts to protect a child’s paramount interests, to achieve a balance between the risk of detriment to the child and the possibility of benefit to them from parental access.[4]
[4] M v M (1988) 166 CLR 69 at [25].
The assessment of risk, or the existence of indicators of potential harm, is an evidence-based conclusion referable to the statutory framework and is not discretionary. The finding about whether an unacceptable risk to safety exists, based on known facts and circumstances, is either open on the evidence or it is not.[5]
[5] Isles & Nelisson [2022] FedCFamC1A 97 at [85].
Where the Court finds that a child may be at an unacceptable risk, the Court must, having regard to the totality of matters set out in s 60CC, consider whether steps can be taken to ameliorate or mitigate against that risk, such that the child can maintain a meaningful relationship with the other parent.[6]
[6] Keane & Keane [2021] FamCAFC 1 at [84].
Intrinsic to that process is the need to assess the strength of the evidence from which it is said the risk should be inferred.[7] Where the risk of harm becomes so potent and cannot be tolerated, it is unacceptable.[8]
[7] Cao & Cao [2018] FamCAFC 252 at [46].
[8] Fitzwater v Fitzwater [2019] FamCAFC 251 at [138] – [139].
Each party alleges the other lacks insight into what is in X’s best interests about being told that Mr Malek is her biological father, whether he poses an unacceptable risk of harm to her and whether she should spend time with him.
Mr Malek says that Ms Kambar does not want X to find out about her true parentage. Whilst he considers that Ms Kambar and Mr Hamda provide X with a safe, loving and nurturing environment, he firmly believes that X has the right to know her true parentage, and to be cared for by both of her biological parents. He raises the concern that withholding the truth from X is not in her best interests. He says that putting it off risks intensifying feelings of betrayal and mistrust in the future and the risk of accidental discovery.
Ms Kambar says that Mr Malek lacks insight into the likely impacts on X’s life, and that he has not taken any steps to prepare for the mitigation of the impacts on X. It is said that Mr Malek’s approach to the complexity of the issues is self-centred, and that he has shown he has not considered or prepared himself for the potential impacts on X’s emotional and psychological wellbeing. Mr Malek formally sought DNA testing in 2019, after the relationship between the parties had become very toxic, after he had contacted Mr Hamda and told him about the parties’ affair, and well after he had formed a view that X may be his biological child.
Ms Kambar says that Mr Malek has weaponised his parentage of X against her. In these respects, Ms Kambar questions the genuineness of Mr Malek’s desire to establish a relationship with X, and considers it an extension of family violence and control that was perpetrated against her throughout their relationship.
Ms H accepted that people who have a different aspect to their identity benefit from having some understanding of it earlier than later in their life. She considered that as a general proposition, it may be in a child’s best interests to find information about their true paternity out before they reach adolescence. Adolescence is a challenging time for children and parents, and there may be advantages to a person in being told sooner rather than later.
However, Ms H also considered that there is no magical age in which to introduce children to issues of this sort. The information can be destabilising and devastating to a child. In cross‑examination, Ms H accepted the point of distinction of a child being told of a matter such as adoption by both parents, and a child being told of an extramarital affair. An extramarital affair is a unique situation. It is different from an adoption scenario, where two parents prepare for and explain to a child together that they are loved as their own, but have different genetics. This is opposed to a circumstance where a child is told that the person they understand to be their parent is not their biological parent, is a different person the child does not know, and is a person that one of their parents maintained an extramarital relationship with, the fact of which has caused much hurt within the family unit.
Accordingly, the consideration of what is in X’s best interests must have regard to the unique facts and circumstances of the parties’ relationship, kept secret from Ms Kambar’s marriage, until Mr Malek told Mr Hamda of the affair in mid-2019.
X presented to Ms H as a friendly and talkative child. She appeared comfortable and chatted easily with her, being observed to smile when talking about her friends, interests and family. X also spoke positively about Mr Hamda, Ms Kambar and G. She identified Mr Hamda and Ms Kambar amongst the people whom she trusts most.
X told Ms H that she enjoys school, finds it easy and enjoys reading books. X’s primary school reports show that she is polite, building her confidence and working toward building resilience when faced with classroom challenges. She has demonstrated sound and thorough understanding of course content across learning disciplines. She is a settled and happy child in her life circumstances.
Being told of her parentage will clearly impact X, and Mr Malek acknowledged to Ms H that it would be initially difficult for her to spend time with him. He said that he is open to engaging a professional supervisor to support X’s feelings of safety and the development of their relationship.
However, only after the trial evidence had been completed, did Mr Malek seek orders requiring the parties to engage in family therapy about telling X about her parentage, before she starts spending time with him, including telephone time.
In cross-examination, Mr Malek gave evidence about his perceptions of the impact on X. It was apparent that Mr Malek had not given any detailed thought as to how X’s introduction to him as her biological father might proceed, or what he might say to her. He very generally said that he expected professional people to guide him and that he will do what it takes to make X feel comfortable. However, he had not progressed any enquiries with professionals, experts or specialists, instead saying that he will seek help once he knows what the orders of the court are. Mr Malek’s evidence in chief went to some lengths about his commitment to ensuring X’s wellbeing as a priority, but no detail beyond general statements was provided about the potential and likely impacts on her, and how he intended to manage those impacts.
In oral evidence, Mr Malek did not agree with the proposition that X does not know him as a person in her life. However, he said that he thought his initial meeting with X would not be easy for him either. He has not seen X for 3 years. Mr Malek said that he didn’t think Ms Kambar was suffering, and that if anybody was suffering it was himself.
Mr Malek maintained his view that it would be better for X to know he is her father now rather than later. In my view, Mr Malek’s evidence that maybe when X sees him, she will know that he is her father without him telling her, and that the minute that she looks up at him she will know, shows a lack of understanding of the significance of the impact on X of what disclosure to her of her true parentage will involve at this stage of her life.
Further, when asked what X might think if she was told that she has two fathers, Mr Malek said that things were being made difficult for him. He went on to seek to correct counsel’s reference to Mr Hamda as X’s father by responding that he has always been the father. When he was asked about there being a father figure in X’s life who is not him, Mr Malek responded by saying that is what he was fixing.
I am concerned by Mr Malek’s prioritisation of the fact of biology, to the exclusion of the family environment that X knows, and the impact on her in disrupting this environment in such a significant way. In my view, Mr Malek’s position that Mr Hamda would simply revert to a stepfather, and that he has no issue with him still attending school and sporting events like a stepfather would, fails to adequately come to terms with the likely reality for X of the changes in her life.
I also consider Mr Malek’s evidence that X will probably be happy because he is her father shows a failure to consider and appreciate the impact on X’s emotional health and safety, in being told of her true parentage at this time. Further to his remarks to Ms H about these matters, I am concerned by Mr Malek’s evidence in cross-examination that because X is a child, she will get over it and move on with her life.
These factors lead me to conclude that the orders Mr Malek is seeking for X to spend time and communicate with him are not well considered and not child-focussed. I am also of the view that Mr Malek’s application in this regard lacks insight, and prioritises his own interests over X’s.
I have considered the risks that Ms Kambar may continue to put off confronting the topic of X’s parentage, because it is so emotionally difficult. However, Ms Kambar told Ms H that her psychologist has provided advice about when and how to let X know about her biology. She told Ms H that she considers X is currently too young to understand the concept, and that it would be best for X to know about her true parentage when she is an adolescent.
Ms Kambar reiterated these views in cross-examination. When asked whether she thought it was in X’s best interest to find out who her biological father was, Ms Kambar said she did not think it was now, but in the future. She said that she was not going to lie to X.
I do not accept that Ms Kambar does not want X to find out about her parentage. I consider the dispute between the parties to be predominantly one of timing. I accept that Ms Kambar considers that X has a right to know of her parentage, and that she believes the right time for X will be when she is a teenager.
Having regard to the matters in s 60CC(2) of the Act, in my opinion the evidence does not establish that it is in X’s best interests to be informed of her parentage and introduced to spending time with Mr Malek at this time. I also consider that Mr Malek poses an unacceptable risk toward X that is unable to be ameliorated or mitigated. In my opinion X should not spend time or communicate with Mr Malek.
In reaching this view, I have concerns about the veracity of the evidence given by Mr Malek at the trial. In my view, Mr Malek’s evidence was deficient on key matters that are central to the resolution of the issues, for example his current living arrangements. His evidence in relation to F was also incomplete and unsatisfactory. Some of these details only emerged in cross‑examination, were inadequate and incomplete, and raise concerns for me about Mr Malek’s level of insight into the application for X to be informed about her parentage and to start spending time with him.
What arrangements would promote X’s safety, and the safety of each person who has care for her?
In Denton & Denton (No 3),[9] Altobelli J said that the term “safety” is not defined in the Act … “safety” is a state in which hazards or conditions leading to physical, psychological, or material harm are controlled in order to preserve the health and wellbeing of an individual. It is not the complete elimination of risk of harm, but rather making such order as affords the child of the most optimal protection from harm.”
[9] [2024] FedCFamC1F 476 at [30].
In considering what arrangements would promote safety under s 60CC(2A) I must include consideration of any history of family violence, abuse or neglect involving X or a person caring for her, and any family violence order that applies or has applied to X or a member of her family.
There are no Apprehended Domestic Violence Orders in place that apply to X or a member of her family. In mid-2019, Ms Kambar made a report to Police about Mr Malek, and a provisional ADVO was issued, preventing him from assaulting or threatening her, stalking, harassing or intimidating her, destroying, damaging any of her property, or approaching or contacting her in any way other than through a lawyer. The ADVO was removed in early 2022, after Mr Malek was found not guilty of some charges laid against him by Police, following reports made by Ms Kambar.
As observed by Ms H, Ms Kambar alleges considerable incidents of family violence throughout the relationship. The matters raised by Ms Kambar are disputed. Further, in response to evidence that shows aggressive and threatening behaviour by Mr Malek, such as audio recordings of voice messages left for Ms Kambar, Mr Malek has said that the tone and content is reflective of the kind of interaction that is usual in Country C dialect. He also places some emphasis on Ms Kambar’s evidence that as a couple, they would argue.
On 24 June 2019, Ms Kambar had her first session with her psychologist Mr J. She reported that she tried to end the relationship with Mr Malek on numerous occasions since 2014, but that he would threaten to tell her family and husband about their affair. Ms Kambar also reported that Mr Malek was blackmailing her to stay with him, using a secret video of them having sex which he had taken in 2018 without her knowledge or permission.
Initially after Mr Malek told Mr Hamda about his affair with Ms Kambar, Ms Kambar denied everything to him. Her anxiety was increasing, she was having panic attacks and finding it difficult to breathe. After she started attending psychology sessions with Mr J, Ms Kambar went home and told Mr Hamda everything about her relationship with Mr Malek, and X’s paternity. She also made a complaint to the Police in mid-2019, which resulted in the ADVO.
Ms H agreed in cross-examination that it is not unusual for people to not report being the victim of family violence at the time of incidents, and that there are a variety of reasons, including safety, embarrassment and fear, that might cause a person to not report these types of matters to Police or authorities.
Ms Kambar was diagnosed by Mr J with major depressive disorder with anxious distress, most likely arising from the ongoing fear and worry she experienced due to threats, blackmail and intimidation from Mr Malek.
In 2019, as a consequence of the reports to Police that Ms Kambar made, Mr Malek was charged and found guilty of a number of offences against and involving Ms Kambar, relating to incidents in and around early to mid-2019.
Mr Malek was placed on an intensive correction order commencing in late 2019 and ending in late 2020. Amongst other conditions, under the intensive correction order, Mr Malek was required to engage with community corrections with a view to overseeing psychological afflictions and treatment to address diagnosis of any subsisting drug-related afflictions. Mr Malek appealed some of these matters, which were heard in the District Court in early 2020. The intensive correction order was varied commencing early 2020 and concluding in late 2020, and requiring Mr Malek to also attend programs to address attitude and behavioural issues toward women.
In late 2023, Ms Kambar presented to Ms H as highly stressed and vulnerable. She cried throughout most of the interview. She became further distressed when discussing her concerns about how the proceedings would emotionally impact her family and X’s wellbeing. She spoke of being so fearful of Mr Malek after they separated, that she experienced regular panic attacks.
At the time of referral to her psychologist, it was noted that Ms Kambar was experiencing significant psychological distress, expressed as depression and anxiety. Mr Malek continued to contact, harass and threaten Ms Kambar, even after the ADVO was issued.
Over the course of one month in 2019, Mr Malek sent Ms Kambar 90 voice messages. When the audio of some of the messages was played to Mr Malek. He accepted his tone of voice was angry, but he denied the messages were threatening.
I do not accept Mr Malek’s evidence in this regard, including that the examples of some of his interactions with Ms Kambar are typical of interactions in Country C dialect. Apart from the very high volume and frequency of the interactions in the circumstances of the poor state of the parties’ relationship, in my opinion the nature, tone and content of the messages is aggressive, threatening and demeaning.
The audio messages threaten Ms Kambar, including to tell people about their relationship. Mr Malek also says things to Ms Kambar including, “Okay, I told you, don’t make me angry, but you did. I want to destroy your life. I want to come and destroy the way you destroyed my life. I want to destroy your life” and “[Ms Kambar] I’m calling you about the photo, call me I want to talk to you okay! Don’t worry it’s not going to hurt you; just call me, or do you want to come now? It’s up to you… Just call me. Bye.”
In evidence, Ms H described the audio recordings as distressing, intimidating and frightening. She expressed concerns if Mr Malek were to deny allegations that were determined to be accurate.
After she received the messages, Ms Kambar changed her mobile telephone number in an attempt to avoid Mr Malek, and cease his receiving his communications. He then began contacting Ms Kambar’s mother.
Further, the audio messages were sent shortly after an incident in mid-2019 when Mr Malek started following Ms Kambar in her car, and which caused her to be fearful. In cross‑examination, Mr Malek denied that he ever followed Ms Kambar, stating that if anything, she followed him. In my view, this is further evidence of Mr Malek’s attempts to minimise, deflect and downplay his involvement in intimidating and abusive behaviour toward Ms Kambar over the course of their relationship.
I consider that over the course of the relationship, Ms Kambar’s attempts to break up with Mr Malek were met with anger, abuse, threats and violent conduct. I consider Mr Malek’s evidence about his interactions with Ms Kambar over the course of their relationship to be incomplete and self-serving. I accept Ms Kambar’s evidence that Mr Malek’s conduct toward Ms Kambar made her fearful and affected her health and wellbeing.
In cross-examination, Ms Kambar accepted that it was unusual that she continued to go back to Mr Malek in the circumstances, where she claimed to be fearful of him and the victim of significant violence, including stalking, and verbal, physical and sexual abuse. However, I accept Ms Kambar’s evidence that she felt controlled by Mr Malek, and under constant threat that he would expose their relationship, and distribute the intimate images of her that he obtained in 2018.
Even though she did things that are inconsistent with wanting to cease contact with Mr Malek and that are unusual, such as accepting his social media request, and going back to Mr Malek, the weight of evidence is that Ms Kambar made considered attempts to disassociate herself with Mr Malek and the relationship over many years, however she was unable to do so.
Mr Malek continued to find her and her contact details. In 2017, Ms Kambar moved house and did not tell Mr Malek where she was living because she did not want him to be able to come to her house. After she had moved, Ms Kambar saw Mr Malek’s car in the rearview mirror, and that he was following her. She stopped the car. Mr Malek approached her and told her that he was going to wait all night if he needed to so it was better for her to go home now. Ms Kambar drove home, and Mr Malek found out where she lived.
I consider that Mr Malek’s conduct towards Ms Kambar, including in response to her attempts to end her relationship with him, disassociate herself from him, and avoid contact with him, is abusive, aggressive, intimidating and harassing. In my opinion, Mr Malek’s conduct in this regard meets the definition of family violence in s 4AB of the Act.
I am also concerned about the incomplete nature of Mr Malek’s evidence about his history and relationship with F and Ms E.
Mr Malek’s evidence about informal parenting arrangements with F, the time he spends with her and his detailed involvement in her life is inconsistent with the order that he spend no time with her. Mr Malek’s evidence in chief omitted these matters entirely. It instead presents an impression of Mr Malek being closely involved in F’s life.
Police records show reports made by Ms E in early 2017 that since the relationship ended, Mr Malek has been verbally aggressive and threatening towards her, including threatening to kill her. He has also threatened to take F off her. It was reported by Police that Ms E was concerned that Mr Malek might assault F. It is reported that in response Mr Malek told her, “I’ll put bullets in her head actually … I’m being serious … I’ll fucking stab her… I’ll fucking stab her in the chest.”
I recognise that the Police record has not been tested and is subject to the risks of human error and inaccuracy. However, I am concerned that Mr Malek made similar remarks to Ms Kambar, in particular saying things to her like, “I will put these bullets in your head if you are not a good girl” whilst showing her bullets, saying to her “Remember the bullets you saw at my house, I will put them in your head” and “I will put a bullet in my own daughter’s head if I need to.”
In cross-examination, Mr Malek denied making these remarks. It is however clear that Mr Malek was found guilty and fined for an offence in mid-2019. It is also the case that in early 2017, as a result of a domestic incident, an ADVO was issued by the Local Court protecting F and Ms E for 2 years.
Within the period of that ADVO, Police record shows that it is alleged that Mr Malek grabbed F’s ear with his hand after she wanted some chocolate, making her cry. It is further alleged that when Ms E intervened, he punched her to the face, causing her to feel pain right away and make her cry.
Mr Malek also disputes these facts. However, I am concerned about the common theme through the way in which Mr Malek has spoken to Ms E and Ms Kambar, in particular the reference to his possession of and use of bullets, and the serious threats of harm and aggression.
In disputing Ms Kambar’s claims, Mr Malek places significance in the timing of her complaints, labelling them as opportunistic following him telling Mr Hamda of his extramarital relationship with her. He also points to Ms Kambar’s report to her general practitioner that physical violence was perpetrated against her by Mr Hamda during their relationship.
In particular, and noting the timing of Ms Kambar’s reports to Police about Mr Malek in mid‑2019, the notes from Dr K record that in mid-2019, Ms Kambar reported that she was involved in a fight with her husband, where she says he punched her in the face, and kicked her on her thigh. It is recorded that Ms Kambar was advised to report the matter to Police if she wanted to and take photos.
A further note in late 2019 records the delivery of communication skills training to help her manage and navigate communication and conflict with her husband. It was said that she is struggling in this area, and there was an argument that became a physical confrontation in the previous week. It is also noted that since that time, communication has improved and they talk more and have respected boundaries when arguing.
In cross-examination, Ms Kambar agreed that Dr K had been her general practitioner for over 10 years. He has been her doctor as long as she can recall. She never reported any abuse by Mr Malek to him. When questioned about it, she also said she does not recall physical abuse by Mr Hamda in the nature of what is recorded in the general practitioner entry. When asked if she made a report to the Police as advised, she said that she could not recall the incident, and did not take any photos of her injuries.
Ms Kambar did not give evidence in chief about these matters, and Mr Hamda did not give evidence at the hearing. Ms Kambar’s evidence is that she cannot recall the incident as recorded to her general practitioner. I have some concern about this evidence, when measured against the significance of the report made by Ms Kambar at the time, including a notation that she said the incident was her fault.
The incident is recorded to have taken place within months of both Mr Malek contacting Mr Hamda, and Ms Kambar telling him everything about her lengthy affair with Mr Malek, and that X was not his biological child. It is also during the period within some months after Ms Kambar obtained an ADVO against Mr Malek, and Mr Malek was continuing to contact her despite the ADVO being in place, including threatening her, harassing her, and continuing to come to her home.
Ms Kambar was prescribed medication and described that stage of her life as a bad one. She said that Mr Malek was continuing to contact her, things were escalating, and Mr Hamda was continuing to receive messages from Mr Malek as well. Ms Kambar has described this time with her husband as an extremely difficult one, but that he has also been supportive of her though what she says is an ordeal.
In my view, the evidence does not permit me to make any findings about the conduct reported by Ms Kambar in 2019, against Mr Hamda. However, even if it did, and without seeking to minimise the serious nature of what is reported if it were established, it is also not in contention that Ms Kambar and Mr Hamda provide a safe, loving and nurturing home for X. In these respects, the issues between Ms Kambar and Mr Hamda in 2019 have limited, if any, bearing upon the central questions in these proceedings.
Mr Malek claims that he has no interest in reconnecting with Ms Kambar and that his interest is with X. However, the reality is that should any time commence, Mr Malek and Ms Kambar will be required to communicate and be brought into contact with each other on a regular basis. I cannot find that this arrangement is one that promotes the safety of Ms Kambar. Further, the negative impact that it would have on her own parenting capacity is also a concern to me.
I also bear in mind that despite the ADVO being issued in mid-2019, Mr Malek continued to call and threaten Ms Kambar after that time. These matters were reported to the Police. I do not accept Mr Malek’s claims that during the same time, Ms Kambar was continuously attending his home, up until late 2019, which he says he also reported to the Police.
Additionally, Mr Malek only started raising paternity testing for X with Ms Kambar in 2019. In late 2020, Ms Kambar was sent legal correspondence about the matter.
Weighing up the advantages and disadvantages of making orders at this stage of X’s development, I do not consider that orders sought by Mr Malek are parenting arrangements that promote X’s safety. I consider that the orders Mr Malek is seeking pose serious risks of psychological and emotional harm to X, and I am also concerned about the risk of physical harm to her.
Whilst the latter risk, to the extent that it exists, could be adequately ameliorated by an order for supervision, I do not consider that there are any orders I can make that will mitigate the risks of emotional and psychological harm to X in being informed of her parentage and introduced to Mr Malek at this stage of her life. I do not consider that any orders requiring her to be introduced to and spend time with Mr Malek afford her adequate protection from harm. I also find that orders sought by Mr Malek do not promote Ms Kambar’s safety.
Any views expressed by X
As stated, X has expressed no views. She is not aware of these issues, or these proceedings.
The developmental, psychological, emotional and cultural needs of X
X is a young child. She has a strong sense of family. She is doing well at school. I consider that her developmental, psychological, emotional and cultural needs are high. X identifies as Catholic and is of Country C descent. Mr Malek, Ms Kambar and Mr Hamda also all identify as Country C. In my opinion, X’s needs across these areas are being met by her current family and living environment.
I take into account Ms H’s opinion that in general terms, a child’s needs can be promoted by being told of their true parentage before they reach adolescence. In this sense, in some cases speaking to a child about the truth of their parentage earlier than later may promote their developmental, psychological, emotional and cultural needs.
However, in my view, in balancing these considerations, there are considerable risks of destabilisation for X that outweigh any potential benefit in these areas to her of being required to commence a relationship with Mr Malek at this stage of her life.
The capacity of each person who has or is proposed to have parental responsibility for X to provide for her developmental, psychological, emotional and cultural needs?
An order requiring X to spend time with Mr Malek would compromise the capacity of Ms Kambar to provide for X’s developmental, psychological, emotional and cultural needs.
Ms Kambar is suffering from significant anxiety. Any introduction of Mr Malek into X’s life will affect Ms Kambar’s life directly. It will affect her parenting capacity, and it will impact the family dynamic in a significant way.
Whilst Ms Kambar appears to be meeting all of X’s day to day developmental, psychological, emotional and cultural needs, Ms H concluded that further stress is likely to negatively impact Ms Kambar’s parenting capacity and the functioning of the family.
The benefit to X of being able to have a relationship with her parents, and other people who are significant to her, where it is safe to do so
X’s confident sense of family, including her relationship with Ms Kambar, Mr Hamda and B is set out in detail by Ms H. The ease and confidence in which she spoke about her family, her friends, her school and her interests present a clear picture of a happy child in her family and wider dynamic.
Mr Malek places some weight in the belief that X has a right to have a relationship with both of her biological parents. However, I must consider that benefit in the context of whether it is safe for her to do so.
In my assessment, Mr Malek’s position has failed to take into account any potential impact on X’s relationship with her sister B, and the importance of that relationship to her. His evidence that, even as young children, they are still sisters and that there will be no impact on X, also causes me some concern that Mr Malek has failed to properly consider the full impact of the meaning of the orders he is seeking up on X at this stage of her life.
In my view, it is not safe for X to have a relationship with Mr Malek at this time.
Anything else that is relevant to the particular circumstances of X
I have considered the risks that Ms Kambar will continue to push back the undoubtedly traumatic and difficult decision of when to tell X about her true parentage. At this stage, it is clear that Ms Kambar does not have the capacity to encourage any form of relationship between X and Mr Malek.
In my assessment, a significant contributing factor to this attitude is the nature of the relationship she had with Mr Malek, and the practical realities of what him being involved in X’s life as a child would mean for her.
Ms Kambar reported to Ms H that she had thought further about X having a relationship with Mr Malek and she has formed the view that she cannot support them to have a relationship. She drew upon concerns for X safety and the emotional turmoil X may experience upon understanding that Mr Hamda is not her biological father. She also reiterated concerns about her own safety.
I must balance this evidence against Ms Kambar’s evidence in cross-examination that she is not going to lie to X, that she believes it is in her interests to tell her who her biological father is, but just not now.
Given that Ms Kambar is progressing this important matter with her psychologist, in my view it is an appropriate incident of the agreed order for Ms Kambar to have sole decision making for X, that she be able to determine when it is in X’s best interests for her to be told about her biology and introduced to Mr Malek, guided by the appropriate advice and supports that she is seeking.
Also, given the history of the relationship, Ms Kambar’s diagnosis as to her mental health, and the number of years that she has been suffering from mental health conditions, I accept the evidence that her focus is on her own mental health. I also accept that once Ms Kambar improves her own mental health, she will start giving consideration to the proper process to introduce X to the truth about her biology in a way that is safe, sensitive and child focused.
The restraints sought by Ms Kambar are in terms that prohibit both parties from discussing these proceedings or any issues arising from them with X, or permitting any third party to do so, except for Ms Kambar after obtaining advice from an appropriately trained medical practitioner or therapist. A similar carve out applies to providing any documents to any third party. These exemptions are designed to give effect to Ms Kambar discussing X’s biology with her, acting upon specialist advice. They speak to Ms Kambar’s commitment to not lose sight of her commitment to the truth for X when the time is right.
Further, I am concerned about general deficiencies in Mr Malek’s evidence, including a number of unexplained matters. Despite giving evidence in chief that he legally changed his name in late 2020, he commenced these proceedings in the name of Mr Malek. His evidence in chief was that he changed his name because he was notified during the COVID-19 pandemic that his identity was the subject of a cyber security identity breach. He gave evidence in cross‑examination that he had used many names, because of safety concerns and identity theft. He also gave evidence in cross-examination that he held driver’s licenses in New South Wales and Queensland, including holding a Queensland driver’s license when he was living in New South Wales.
Further, Mr Malek’s trial evidence was incomplete as to his current living and working arrangements. Mr Malek said in cross-examination that he had been living at his current address since October, that he was leasing and living there with a friend. He questioned why these questions were being asked of him. When asked, he would not give the name of the person he was living with, because he does not want them involved in the court proceedings.
It is of some concern that Mr Malek failed to appreciate the relevance of evidence as to his living arrangements, in circumstances where the orders he was seeking at that time were that from 3 months from the date of the orders, X spend unsupervised time with him. When pressed further by counsel, Mr Malek said that he was living with Ms L, aged 48 years, and a child, G, aged 10 years. He reiterated that he did not want to involve other people in these proceedings.
He also gave evidence in cross-examination that he held a foreign driver’s license. He was questioned about an incident in late 2019 when he was stopped by police on the road and gave Police a foreign driver’s licence. He accepted this as correct, but did not remember saying yes or no to telling Police that he was only in New South Wales on holidays.
Conclusions as to parenting orders
This matter raises significant questions of timing, and a balancing of a child’s right to know of their parentage and the parental obligation to tell. Unlike other cases, I consider the risk of accidental discovery by X to be low. Mr Malek is not named on her birth certificate, she is 8 years old, and the truth about her biology does not appear to be a widely known fact. It is appropriate for these reasons for orders to be made restraining disclosure to X.
A commitment to the truth is not determinative of the matter. I must examine all of the evidence carefully to determine what is in X’s best interests in the broadest sense. I must make value judgements and uncertain predictions about future events as to what is in X’s best interests.
I will make orders to the effect sought by Ms Kambar and the ICL. I consider that it is in X’s best interests that Ms Kambar have sole parental responsibility and decision-making authority for long-term decisions for X to the exclusion of Mr Malek, that X live with Ms Kambar and spend no time with or have any communication with Mr Malek.
I will also make orders restraining the parties’ conduct under s 68B of the Act. The parties and the ICL seek restraints that apply to both of the parties, however those sought by Mr Malek are narrower than those sought by Ms Kambar and the ICL. Ms Kambar and the ICL also seek restraints that apply to Mr Malek only.
The restraints that are sought to apply to both parties by Ms Kambar and the ICL are, further to my findings and analysis, appropriate for X’s welfare. In light of my findings made, I also consider it is just and convenient, and appropriate for X’s welfare, to order additional injunctions that apply to Mr Malek, for the personal protection of Ms Kambar, X and B and Mr Hamda, as members of X’s household. These restraints are in terms that prohibit Mr Malek from communicating with or approaching Ms Kambar, X and B and Mr Hamda in any way, including through any third party.
Further, whilst I appreciate the importance to a biological parent of having their name recorded on a child’s birth certificate, I do not consider that doing so is in X’s best interests. In my view the order is not child focused. It exacerbates the risk of accidental discovery by X of her parentage at a time in her life when receiving information of that kind is not in her best interests and has the potential to cause her harm.
Further, on 4 October 2023, interim orders were made by consent giving effect to restraining Mr Malek from removing X from the Commonwealth, and X’s name being placed on the Family Law Watchlist. Ms Kambar seeks these orders to continue until further order, or upon X turning 18 years of age. She also seeks orders giving effect to her ability to apply for a passport for X, and that she be entitled to remove X from the Commonwealth or on any occasion that she deems appropriate.
Ms Kambar did not give any evidence in support of these orders, and Mr Malek was not cross-examined about these matters. I was directed to the interim orders, and the record made by Police in early 2017 that Mr Malek said on numerous occasions to Ms E that he would take F off her and return her to his extended family in Country C. It was put to me that these orders are sought as part of an overall concern about Mr Malek’s involvement in X’s life.
The interim orders were made by consent and pending further order. Given my findings as to Mr Malek’s lack of insight, and the nature of the orders he sought in the application, I consider that the evidence is sufficient for me to make the orders sought by Ms Kambar in relation to the Family Law Watchlist as being in X’s best interests.
Should an order be made for the payment of the ICL’s costs?
The ICL has sought an order that Mr Malek pay half of the ICL’s costs. The ICL seeks an order that Ms Kambar pay her own costs.
Section 117(3) of the Act empowers the court, in proceedings in which an ICL has been appointed, to make an order for costs, to the effect that each party to the proceeding bears, in such proportion as the court considers just, the costs of the ICL in respect of the proceedings.
Section 117(4) of the Act provides that if a party to the proceedings has received legal aid in respect of the proceedings or the court considers that a party to the proceedings would suffer financial hardship if they had to bear a proportion of the costs of the ICL, the Court must not make an order against the party in relation to the costs of the ICL.
Mr Malek opposed to the order on the basis that he had, at a point in time, been in receipt of a grant of legal aid in respect of these proceedings, not being the provision of a lawyer pursuant to s 102NA of the Act.
In Gillen & Lindo (No 2),[10] Gill J said of s 117(4):
“In construing the subsection it should be observed that the operative circumstance is unqualified. It does not suggest that the party must currently be in receipt of legal aid, or in receipt of legal aid for a particular portion of the proceedings. It is expressed simply in the past tense.
Here the mother has adduced evidence sufficient to demonstrate that she has received legal aid in respect of the proceedings, even if she no longer does. That is sufficient to oust the power of the Court to make an order against her in respect of the ICL.”[11]
[10] [2021] FedCFamC1F 211.
[11] At [16] and [17].
As Mr Malek has received legal aid in respect of these proceedings, I must not make an order against him in relation to the costs of the ICL.
I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Liveris. Associate:
Dated: 29 October 2024
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