MAROU & AZIZ
[2020] FCCA 489
•6 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAROU & AZIZ | [2020] FCCA 489 |
| Catchwords: FAMILY LAW – Parenting – where there is one subject child – breakdown of relationship between parents – where best interest of the child considered – where mother seeks sole responsibility – where father sought sole parental responsibility – where factors under s.60CC of the Family Law Act 1975 (Cth) are considered – where there is evidence of family violence including a threat of female genital mutilation on the child – presumption in favour of shared parental responsibility rebutted –– held that it is in the child’s best interests that they live with the mother and that the mother have sole parental responsibility – where there should be no contact between the father and the child. |
| Legislation: Family Law Act 1975 (Cth), ss.43, 60B, 60CA, 60CC, 61DA, 61DB, 65DAA, 68L |
| Cases cited: Dundas & Blake (2013) FLC 93-552 Marvel v Marvel (2010) 43 FamLR 348 M v M [1988] HCA 68 Zavala & Zavala [2019] FCCA 338 |
| Applicant: | MR MAROU |
| Respondent: | MS AZIZ |
| File Number: | PAC 913 of 2017 |
| Judgment of: | Judge Humphreys |
| Hearing dates: | 3 February 2020 – 14 February 2020 |
| Date of Last Submission: | 14 February 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 6 February 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Haywood (Solicitor Advocate), Legal Aid Parramatta |
| Counsel for the Respondent: | Mr Schroder |
| Solicitors for the Respondent: | Kathryn Renshall Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms Stolier |
| Solicitors for the Independent Children's Lawyer: | Mark Whelan |
ORDERS
All previous Orders for the child X (“X”), born in 2016, are discharged.
The Orders of 3 March 2017, placing X on the airport watch list are discharged and the Court requests the assistance of the Australian Federal Police (“AFP”) in removing her name from the airport watch list.
The mother shall have sole parental responsibility for X.
It is further noted that Order 3 vests in the mother sole parental responsibility for the purposes of the Australian Passports Act 2005 (Cth), such that the mother is, according to Order 1, authorised to obtain a passport or travel document for X to facilitate her travelling overseas without first notifying or obtaining the consent of the father.
X shall live with the mother.
X shall spend no time or communicate with the father.
IT IS NOTED that publication of this judgment under the pseudonym Marou & Aziz is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 913 of 2017
| MR MAROU |
Applicant
And
| MS AZIZ |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern parenting matters between the applicant, Mr Marou (“the father”) and the respondent Ms Aziz (“the mother”). The parenting proceedings are in relation to the sole child of the marriage, X (“X”), born in 2016 and currently aged three years.
The matter was heard at the Parramatta Registry of the Federal Circuit Court over 8 days, commencing on Monday 3 February 2020 and concluding on Friday 14 February 2020.
Background
The relevant uncontested background facts to the matter are as follows:
·The mother was born in 1978 and is now aged 42 years.
·The father was born in 1989 and is now aged 30 years.
·In 1998/1999, the mother immigrated to Australia from the Country B.
·In 2014, the mother and father met while the mother was visiting Country C. They continued a long-distance relationship prior to the mother’s return to Country C.
·In 2015, the mother and father married in Country C. The mother remained in Country C with the father for two months before returning to Australia and lodging a spousal visa in respect of the father in Australia. The mother returned to Country C in 2015.
·In 2015, the mother discovered she was pregnant.
·In 2016, the father arrived in Australia following the grant of a spousal visa.
·In 2016, the sole child of the marriage X was born. X is now 3 and a half years old.
·On 20 August 2016, the mother and father initially separated, followed by a short period of reconciliation. X has always been and currently remains living with the mother.
·On 11 October 2016, an interim Apprehended Domestic Violence Order (“ADVO”) was made for the protection of the mother at Suburb D Local Court.
·On 31 January 2017, the ADVO proceedings against the father were dismissed.
·In late February or early March 2017, the father was served with a Court attendance notice in relation to two charges of common assault and a further provisional ADVO listed on 27 March 2017, returnable at Suburb D Local Court.
·On 3 March 2017, the father filed an Initiating Application in the Parramatta Registry of the Federal Circuit Court seeking final orders for alternate weekends, equal parental responsibility and for X to live with the mother. Interim orders were sought for X to spend time with the father at a contact centre and X to be placed on the Australian Federal Police (“AFP”) watch list. On 12 April 2017, interim orders made in the Parramatta Registry of the Federal Circuit Court inter-alia, the child to live with the mother, the child to spend time with the father at Region E Children’s Contact Centre each alternate week and that the father is responsible for the costs of this service. Following these orders, the father spent time with the child at Region E Children’s Contact Centre.
·On 7 August 2017, a final ADVO, for a period of 12 months, was made against the father for the mother and X as protected persons in standard terms. Criminal charges were dismissed.
·On 18 September 2017, the father filed a Contravention Application in respect of allegations that he had been prevented from spending time with X. Contact time recommenced on 27 November 2017.
·In 2018, the High Family Court in Country C granted a divorce between the mother and father on the application of the mother. This was appealed by the father. The appeal was subsequently dismissed.
Proposals of the Parties
In a Further Amended Initiating Application filed on 9 November 2018, the father seeks orders summarised as follows:
·That the father have sole parental responsibility for the child X.
·That the child live with the father.
·That for the first three months of any orders, the mother spend supervised time with the X at the Region E Children’s Contact Centre with no less than two hours on a fortnightly basis, followed by a further three months on a weekly basis.
·Not less than six months from the date of any orders, for a period of three months, the mother spend time with X each alternate Saturday from 12:00 PM to 4:00 PM for a period of three months, followed by a further three months, each alternate Saturday from 9:00 AM to 4:00 PM.
·Following conclusion of the above and until X commences the second year of her school education, each alternate weekend from 9:00 AM to 4:00 PM Saturday and 9:00 AM to 4:00 PM Sunday
·Following the conclusion of time provided for above, each alternate weekend from the conclusion of school Friday (or 3:00PM if not a school day) until 4:00 PM Sunday.
·That both the mother and father be restrained from removing or attempting to remove or causing or permitting the removal of X from Australia and that her name be placed on an airport watch list.
In an Amended Response filed on 30 July 2018, the mother seeks the following orders:
·That the mother have sole parental responsibility of the child X.
·That the child lived with the mother.
·That the father shall not spend time with, nor attempt to spend time with, nor communicate with, nor attempt to communicate with the child.
·That the mother is authorised to obtain any passport or travel document required to facilitate the child travelling overseas without first notifying or obtaining the consent of the father.
At the hearing, the parties continued to seek orders as outlined above except that the mother sought that if the orders she sought were granted, X be removed for the AFP watch list.
On 11 September 2019, pursuant to s.68L of the Family Law Act 1975 (Cth) (“the Act”), an Independent Children’s Lawyer (“ICL”) was appointed for X. At the commencement of the hearing, the Court was advised by the ICL, Ms Stolier, that no preliminary view has been formed as to the appropriate orders to be sought, based on the materials filed. Given the significance of the factual disputes between the parties, the ICL reserved their position until the conclusion of cross-examination and submissions, in relation to the appropriate orders to be made by the Court.
The Law – The Family Law Act 1975 (Cth)
The relevant statutory provisions applicable to proceedings in relation to children are set out in Part VII of the Act.
Section 60B of the Act sets out the objects and principles of Part VII of the Act as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) of the Act, relevantly provides as follows:
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture
Section 61DA of the Act, relevantly provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
This is also confirmed by s 65DAA(2)(d) of the Act:
Consider whether the child spending substantial and significant time with each of the parents is reasonably practicable.
Section 60CC of the Act sets out a list of matters that the Court must consider in determining what is in the child’s best interest. Whilst the Act requires the Court to consider all the matters in s 60CC of the Act, the central issue in those proceedings is balancing the primary considerations set out in s 60CC(2) of the Act against one another. Those considerations are as follows:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2)(a) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence (s 60CC(2)(b) of the Act).
Section 60CC(3) of the Act sets out additional considerations in determining what is in the child’s best interest. Broadly, these considerations deal with the following matters:
a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The task of applying s 60CC(3) of the Act – Additional Considerations, is an evaluative exercise that necessarily involves the trial Judge determining what weight should be given to each relevant consideration. Each of the considerations found in s 60CC of the Act must be taken into account and needs to be considered as regards to X.
Relevant Case Law
In Dundas & Blake (2013) FLC 93-552 at [87,339], the Full Court held that s 61DA of the Act is mandatory in the sense that the presumption for equal and shared parental responsibility must be applied, until a level of satisfaction is reached that it would not be in the interest of the child for the presumption to not apply. The Full Court said:
In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted.
Further, pursuant to s 43(1)(c) of the Act, the Court, in exercising its jurisdiction, has a responsibility to “protect the rights of children and to promote their welfare”.
in Marvel v Marvel (2010) 43 Fam LR 348, discussed the problems associated with making findings on disputed evidence as follows [120-122]:
As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing: s 61DB.
The issue of when the making of findings on contested evidence will constitute appealable error has been considered in a number of Full Court decisions: see Goode at paragraph [82(d)]. In this case we agree with the written submissions made by the former counsel for the ICL and the oral submissions of counsel for the ICL at the hearing of the appeal that two findings of the trial Judge were inappropriate, namely that:
a) the father demonstrated a greater level of parental responsibility when the evidence on which that finding was based was the fact the majority of the children lived with him; and
b) the incidents reported by the mother constituted “low level violence” as the violence identified fulfilled the statutory definition of family violence in the Act.
In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
While the above comments relate more specifically to interim hearings, the care needed when evidence is disputed at the final hearing stage remains the same. As such, the Court has an overriding obligation to ensure that the best interests of the child are the paramount consideration and that applying various considerations in accordance with s60CC(2)(a) of the Act, greater weight must be given to the ‘need to protect’ the child over the benefit to the child of a meaningful relationship with parents.
In making any orders that would involve physical contact between X and the father, the Court has been mindful of the risks associated with unacceptable domestic violence. The Court notes that in M v M [1988] HCA 68 at paragraph 25, the High Court said:
To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In this case, there is no allegation of actual sexual abuse of X, rather there is a threat, at some time in the future, of Female Genital Mutilation (“FGM”). I consider the threat of FGM to be the equivalent of sexual abuse. There is also the risk of exposure to domestic violence or psychological harm if X were to spend time with the father.
In Zavala v Zavala [2019] FCCA 338 at paragraph [103], Judge McGuire made the following comments in relation to unacceptable risk:
Relevantly, in the English judgement of Re: L (contact: – domestic violence) stated:
In cases of proved domestic violence, and in cases of other proved harm or risk of harm to the child, the Court has the task of weighing in the balance the seriousness of the domestic violence, the risks involved and the impact on the child against positive factors, if any, of contact between the parent found to be violent and the child. In this context, the ability of the offending parent to recognise his past conduct, to be aware of the need to change and make a genuine efforts to do so, will be likely to be an important consideration.
The Evidence
Evidence of the Father
The father relied upon a Trial Affidavit sworn 19 December 2019 as evidence. The father states that he and the mother commenced their relationship in 2014 and were married in Country C in 2015. They separated on a final basis on 20 August 2016.
In or about 2015, following their marriage, the mother lodged a spousal visa application to allow the father to come to Australia. The mother returned to Country C to visit the father in 2015. Following the grant of the father’s visa, he travelled to Australia in 2016. In 2017, the father was granted permanent residency in Australia.
The father alleges that after he arrived in Australia, he observed that the mother became frustrated that he was not working and unable to provide for her during her pregnancy. During arguments, the father alleges that the mother would often slap her face and yell and he was concerned that she would hurt herself. The father denies hitting the mother in late March 2016 or that he pushed her in May 2016.
Following the birth of X, the father states he visited them in hospital as much as he could. The father states that he was very involved in X’s care and helped position her whilst the mother was feeding her. The father denies yelling at the mother at the hospital.
At various times, the father alleges that the mother stated to him that she could have him deported. The father specifically denies that he threatened to have X undergo FGM. The father agrees that on 20 August 2016, the parties separated but denies throwing X into her bassinet, pushing the mother or hitting her on the face.
The father denies committing any domestic violence upon the mother, noting that the initial ADVO proceedings taken against him, were dismissed in Suburb D Local Court on 31 January 2017. Costs were awarded against the New South Wales Police to the sum of $2500.00.
The father denies the allegations contained within a Further Apprehended Domestic Violence Order proceeding, which was commenced in late February 2017 or early March 2017. It is noted that on 7 August 2017, following a Defended Hearing at Suburb D Local Court, charges of common assault against the mother and X were dismissed. However, an Apprehended Domestic Violence Order was made expiring on 6 August 2018.
The father denies having ever physically assaulting the mother or restraining her hands apart when she was trying to hurt herself. The father denies that he ever forced the mother to have sexual intercourse with him. The father denies ever breaking plates, tearing the mother’s blouse, smacking her, throwing a Yellow Pages book at her or pushing her against a wall. The father denies ever being verbally abusive towards the mother. The father denies that he is financially controlling or that he is trying to isolate the mother from her friends and family.
The father denies that he has injected steroids after coming to Australia or that he has ever injected steroids. The father admits to regularly working out at the gym and that he has taken prepared protein shakes and vitamin C to increase muscle mass.
The father denies that he has ever hacked into the mother’s social media accounts. The father denies saying to the mother that she is a “disobedient wife” or that she needs to be a “good Muslim”. The father denies ever having threatened to remove X from Australia and relocate her to Country C permanently.
The father alleges that in July and August 2017, he received messages from an unknown person via Facebook Messenger that made allegations against the care being provided by the mother.
Allegations are also made that the mother failed to facilitate supervised time with X at a contact centre. The father also provides evidence that he has attended a Post Separation Counselling Course from May to October 2017.
The father denies forcing the mother to complete visa paperwork during their honeymoon. The father does however, admit to receiving money from the mother while she was still living in Country C. The father denies that he lied about his age and occupation to the mother or that he physically abused her. The father denies verbally abusing the mother by calling her a “fat cow, a slut, disobedient wife, fat ugly bitch, or stupid bitch”. The father states that he is not overly religious, is a progressive Muslim man and does not believe in telling people how to dress. The father denies isolating the mother from her family.
The father denies either hitting, pushing or physically interfering with the mother at F Hospital following the birth of X. The father denies grabbing the mother’s breast and hurting her when she was trying to breastfeed. The father states he was trying to help the mother by moving X’s head to adjust their position and did not do so in a rough matter.
The father denies the allegations contained in the affidavit sworn 13 July 2018, of Ms G, a maternal aunt of the mother. The father denies that he said on 15 September 2016, in Ms G’s presence to the mother that he was “only leaving X for you (the mother) to breastfeed her and take care of her while she was a baby, but when she grows up I will remove her from you and will make her be raised by a proper Muslim family and not to be a slut like you and I will genitally mutilate her”.
The father also denies the allegations that he verbally abused the mother as set out in an affidavit of Ms H, the sister-in-law of the mother, sworn 30 June 2018. The father denies saying to her that “my wife does not have a say, she only does what she is told to do, and my daughter will follow the same rules, and if they go against my rules and what I say, they will be punished by me”.
The father also denies the allegations of Ms J, a former landlord of the father, contained in an affidavit sworn 30 June 2018. This includes allegations that the father said to Ms J regarding FGM that “it is actually good for girls to get circumcised, we do that in Country C to protect them from men…Ms Aziz is a stupid woman, she does not understand anything, when this is the best thing to do for my daughter”. The father also denies saying that he would take X to Country C to be raised properly.
In the father’s affidavit, he deposes that he is concerned that the mother is unable to facilitate a meaningful relationship between X and himself, she will not comply with the orders of the Court and sets out his plan if X were to live with him.
The father deposes as to the supervised time he has spent with X at the Region E Children’s Contact Service, his attendance at a Parenting After Separation course, his current employment as a labourer, together with a casual security job in Sydney and his plans for his daughter if he were to be granted sole parental responsibility.
During cross-examination, the father categorically denied ever physically or sexually assaulting the mother, verbally abusing her, acting in a controlling manner or forcing her to spend considerable funds on a motor vehicle after he came to Australia or some $30,000 on camera equipment. The father denied financially abusing the mother with respect to property she owned in Country C. When asked what risk the mother posed, he answered he was concerned what she might do after the Court case. The father states he was concerned X would be affected psychologically if she were to remain living with the mother. The father denied that he was seeking orders for X to live with him and for him to have sole parental responsibility so that he could control every aspect of her life.
During cross-examination, the father stated he held qualifications as an accountant in Country C. It was put to the father that this was different from the occupation shown on his passport and other official documents. It was put to the father that he was simply making the evidence about his accountancy qualifications up as he went along. I note at this point no evidence was subsequently produced to indicate the father held any such qualifications.
The father states he was aware from the mother’s affidavit evidence, of a medical report from Country C dated 8 November 2015, in which the mother presented with facial injuries to a hospital in Country C, naming the father as having caused those injuries. The father states that the document was a fabrication and the mother never went to a hospital. The father denied that his family in Country C were complicit in the violence he committed against the mother. The father denied that he ever said to the mother, in front of others that, “it is my duty to control and tame X and you”.
The father denied that in April 2016, Mr L, the mother’s cousin, had ever told him that he treated the mother in a backward, 18th Century misogynistic manner. The father denied later in mid-2016, telling the mother in front of Mr L, that she was a “stupid fat cow and a disobedient wife” and that “I divorce you”.
The father was taken to the affidavit evidence of Mr M, sworn 18 December 2019, a neighbour of the mother’s parents. The father denied that in June 2016, he had pushed the mother towards their car while she was heavily pregnant. The father denied that he said to the mother words to the effect of “I’ll show you when we get home you will never learn, you stupid cow, you piece of trash”.
The father denied that following the birth of X, while at the hospital, he grabbed the mother’s breast and roughly pushed X onto her nipple. The father states he had helped the mother adjust X’s position to assist the mother to feed the child. However the father did agree that he had been asked to leave by hospital staff for overstaying visiting hours on more than one occasion.
The father was taken to the affidavit evidence of Ms N, sworn 18 December 2019, a friend of the mother. The father denied that half-way through the mother’s pregnancy, during a gathering at Ms N’s home, saying “my only issue with Ms Aziz is that she must obey without question, all of my orders, regardless of the nature of the order, otherwise I will hit her as that is my God given right”.
The father was taken to the affidavit of Ms H sworn 30 June 2018, the sister-in-law of the mother. The father denies that at the family home of the mother and father, he snatched X from the arms of Ms H, that he grabbed X by the neck, grabbed and pulled the mother’s breast and forcefully pushed X onto the mother’s breast saying “this is how you should feed my daughter you stupid women”. The father denied he had told Ms H he had control of the mothers Facebook account.
During cross-examination by the ICL, Ms Stolier, the father told the Court he lived in a two-bedroom granny flat and if X were to live with him, she would have her own bedroom. The father denied asking Ms J around April 2017, if she knew any women who would be interested in only a sexual relationship with him.
The father confirmed that his only contact, to date with X, was two hours at a contact centre once a week. The father agreed he had never had X stay overnight or that he had prepared three meals a day for her.
Evidence of Ms O
An affidavit of Ms O sworn 19 February 2020, was tendered without objection and she was not required for cross-examination. Ms O does not know the mother. Ms O is a friend of the father and is willing to help him out with X in any way that she can. Ms O states that the father has formed a close relationship with her daughters and she leaves them with him unattended.
Evidence of Mr P
Mr P is a close friend of the father and was previously a long term friend of the mother’s family. In an affidavit sworn 20 December 2019, Mr P described the father as a “gentle and calm man” and found him to be “an honest person both professionally and personally”. Mr P states that on multiple occasions, the father would call him when an argument between himself and the mother occurred and that he would drive over to help mediate the issues. Mr P states that he was concerned for X’s wellbeing during times where he witnessed that the mother was quite distressed. Mr P states that he never observed the father to physically interfere with the mother or any other person. Mr P states that his relationship with the mother’s family deteriorated after he heard the mother refer to him as a traitor.
Mr P states that the father has a “close and loving relationship with my family” and that he has left his children with the father unattended on a number of occasions. Mr P has observed that the father speaks about his time with X positively, that the father is respectful towards Mr P’s own wife and he is a “modern, progressive man”.
Mr P states in his affidavit that he and his wife are able to assist the father with the care of X as he runs his own business which allows him to have flexible working hours and his wife is a stay at home mother.
However, Mr P agreed during cross examination that a wife should obey their husband most of the time.
Evidence of the Mother
The mother’s case relies upon the affidavit evidence of Ms Aziz, sworn 20 December 2019.
The mother confirms that she met the father in or around 2014 and married him in Country C in 2015. The parties separated on a final basis on 20 August 2016. In 2018, the High Family Courts in Country C granted the mother a divorce from the father. The father appealed the divorce but it was dismissed.
On 27 March 2019, the High Family Courts in Country C made a Guardianship Order for X to be in the mother’s care until she is 15 years of age, which is the legal age in Country C. The mother states she did not apply for custody because she wanted to relocate to Country C with X rather, this was done to protect her in case the father took X to Country C, as he had threatened to do.
Following the mother’s return to Australia after the marriage, she alleges that she sent a significant sum of money to the father which he used to pay for various things such as his English lessons and spending money.
The mother deposes that in or around June 2015, an argument took place between herself and the father. The mother alleges that the father slapped her across the face repeatedly and punched her all over her body. The father then said to her in Arabic “this is what happens when you do not obey my commands”. The mother alleges that the father proceeded to sexually assault her.
The mother travelled to Country C on in 2015, to visit the father while his visa application was being processed. When the mother and father got into the car, the mother alleges that the father grabbed her by the hair and smashed her head into the dashboard of the car, stating “this is for answering me back on the phone and questioning me about the immigration paperwork and the progress of the flat”. The mother alleges that on the following day, she went to a hospital for treatment to her injuries. On that same day, the mother alleges the father sexually assaulted her stating “this is your obligation and duty towards me as my wife”.
The mother states that a few weeks after her return to Australia, she found out she was pregnant. The mother decided to forgive the father as he constantly apologised to her and she believed that the laws in Australia would protect her if the father moved to Australia. The father arrived in Australia in 2016.
The mother alleges that the father became controlling by telling her what to wear and who she was allowed to speak to. In March 2016, the mother deposes that the father forced her to buy a car for him when she had little money.
In or around April 2016, while the mother was resting, the father woke her up and requested sexual intercourse. The mother states that she refused but he continued and forced himself upon her stating “it’s not your choice, you are here to pleasure me and obey me, you have no choice, and this is your duty as a wife in Islam”.
On 24 March 2016, while having dinner with the mother’s cousin, Ms R and her husband Mr L, the father accused the mother of misinterpreting what he had said. It is alleged that the father banged his hand down on the restaurant table, calling the mother “a fat cow, a disobedient wife” and then said “I divorce you”.
The mother deposes that she was admitted to the birthing unit at F Hospital on two different occasions in 2016. On both occasions, the mother feared having a miscarriage due to being pushed aggressively by the father.
In 2016, when the mother returned home from her last day at work, she alleges the father sexually assaulted her, ripping her dress off and forcing himself upon her. The mother alleges that she said “I won’t have sex with you” and the father responded “you don’t have a choice, you’re just here to serve me”.
On 29 July 2016, the mother alleges the father used the mother’s credit card to buy $30,000.00 worth of photography equipment without the consent of the mother.
X was born by caesarean section at F Hospital in 2016. In 2016, the mother states that she was trying to breastfeed her child. The father showed no support and became loud and aggressive. The father grabbed the mother’s breast and forced it into X’s mouth while pulling her breast and hurting her. Attached to the mother’s affidavit, are notes made from the midwife from F Hospital which corroborate this incident.
The mother was discharged from hospital in 2016. On that day, the father demanded she attend Centrelink for a new Medicare card to have family tax benefits paid into his bank account. On the same day, X was struggling to attach to the mother’s breast. The mother alleges the father snatched X off her by the neck, grabbed the mother’s breast and pushed it into X’s mouth. The mother alleges that the father said “you are not a worthy mother. I will take X away from you and raise with good and sound Muslim beliefs. I am going to raise X to hate you”.
Approximately one week after X was born, the mother states she noticed that the father was viewing some pornographic material. When the mother asked what the father was doing, she alleges that his response was “I am preparing myself to be pleasured by you”. The mother states that the father then forced himself upon her, notwithstanding the fact that she was in pain after her recent caesarean.
The mother alleges that in 2016, the father said “when are we going to get X circumcised”. The mother protested and the father said “you have no say in the matter and that I will circumcise X whether you like it or not, this is what good Muslims do so that she doesn’t turn out to be a slut”.
The mother alleges that the father has said “it is my duty to control and tame X and you” in front of family and friends on numerous occasions.
The mother gave evidence in relation to medical attention she has sought in relation to food intolerances that X suffers. X attends day care four days per week and has reached all key milestones. The mother and X currently live in a two-bedroom unit in Suburb S. X has her own room with everything she needs.
The mother deposes that she has completed a Parenting after Separation Course, a 123 Magic and Emotion Coaching Parenting Course, a New Beginnings Program and counselling with T Counselling. In March 2018, the mother states she commenced specialised sexual assault counselling at F Hospital.
The mother was cross-examined over an extended period by the legal representative for the father. The mother denied fabricating evidence against the father or that the allegations she has made had increased over time. The mother agreed that the father had been consistent in his attendance at supervised contact centres. While the mother did not doubt that the father loved X, she commented that circumcision, in his mind, may be the right thing to do to protect X from her sexuality and her concern is that he has fulfilled every threat that he has made.
Under cross-examination by the ICL, the mother agreed that X is a developing relationship with her father and that she does not dispute that the contact with him has been positive. The mother agreed that if X was not to see her father again, this would be a problem. The mother stated she wants to find a solution that assures her daughter’s safety. The issue is not just FGM. The mother is concerned about the risk of indoctrination by the father as to his strict Muslim views.
During the mother’s evidence, she was at times very emotional and became distressed on one occasion to the extent that she became ill. It was clear to the Court that the mother held genuine fears for her safety. During examination and cross-examination, the mother looked away from the father so that she did not have eye contact with him at any point.
Evidence of Ms G.
Ms G is the aunt of the mother. In an affidavit sworn 13 July 2018, Ms G states she has witnessed the father be demeaning, violent and aggressive, both verbally and physically towards the mother before, during and after her pregnancy. Ms G states she has witnessed, on many occasions, the father physically attacking the mother. Ms G states that the father was always humiliating the mother in front of her family and friends.
Ms G states that in 2015 in Country C, following a conversation where some of the family raised concerns in respect of the father’s treatment towards the mother, the father said “Ms Aziz’s my wife, what happens between us is nobody’s business, I can do whatever I want with her and none of you have any control over that”. During a further exchange, the father referred to the mother in the following terms “she is my property now and I treat her anyway I want to”. It is alleged that the father then grabbed the mother by her clothes and pushed her down onto a seat. The father then put his face up close to the mother’s face and started yelling at her saying words to the effect of “I said shut up you stupid piece of shit”.
Ms G states she witnessed further incidents of violence by the father to the mother when the mother was pregnant. In 2016, Ms G states that she found the father sitting in the front seat of his car holding X. The father refused to give X back to the mother and stated “I am only leaving X for you to breastfeed her and take care of her while she is a baby, but when she grows up I will remove her from you and will make her raised by a proper Muslim family not to be a slut like you and I will genitally mutilate her”.
Evidence of Ms H
Ms H is the sister-in-law and friend of the mother. In an affidavit sworn 30 June 2018, Ms H states that after the father came to Australia, she would see the father and mother at least once a week at her home, as the mother brought the father over to learn English. The father would often tell her “you don’t know anything”, “shut up you stupid woman”, “keep quiet, don’t open your mouth”, and you are not translating very well because people are misunderstanding me”, when in fact she was not translating incorrectly.
Ms H recalls in April 2016, the father said to her “my wife does not have a say she only does what she is told to do and my daughter will follow the same rules and if they go against my rules and what I say, they will be punished by me”. Ms H states that she has heard the father tell the mother’s father “I hit her (the mother) because she doesn’t listen to me”. Ms H further states that she has heard the father threaten to circumcise X and take her away from the mother to Country C. Ms H also states that the father admitted to her that he had control of the mother’s Facebook accounts. Ms H denied fabricating her evidence under cross examination.
Evidence of Ms J
Ms J is the former landlord of the father having met him when he asked for her help in translating certain documents at Centrelink. Ms J is not acquainted with nor is she friends with the mother. Ms J states that the father is very ‘tech savvy’.
Ms J states in her affidavit that on around 17 November 2016, the father confessed to her that he had hacked into the mother’s email account stating “otherwise how can I be one step ahead of Ms Aziz”, and that he “needs to have control over everything of her on the net from Facebook email WhatsApp messages, everything … I even had video recordings and voice messages from her that I can change and play around with to suit my needs”.
In relation to alleged threats made by the father to circumcise X, Ms J gave evidence in her affidavit that the father said “it is actually good for girls to get circumcised, we do that for the girls in Country C to protect them from men, so she is not interested in men when she is a teenager, but Ms Aziz is a stupid woman, she doesn’t understand anything, when this is the best thing to do for my daughter”.
Ms J further alleges in her affidavit that the father made statements that he would take X to Country C when she has grown up a bit so “that she doesn’t turn out to be like the sluts over here in Australia. X must be raised in a proper Muslim environment, and Country C is the right place for X to be raised properly, everything will happen the way I want, I am waiting for my citizenship and waiting for X to grow a bit”. Ms J denied making up this evidence when under cross examination.
Evidence of Ms N
Ms N is a friend of the mother. His impression of the father was that he was self-centred, very opinionated and his beliefs were in a strict Middle Eastern way. In Ms N’s affidavit, he states that midway during the mother’s pregnancy, Ms N hosted a gathering at his home to try to help solve some problems between the mother and the father. During the gathering, the father said words in Arabic to the effect of “My only issue with Ms Aziz is that she must obey without question, all of my orders, regardless of the nature of the order, otherwise I will hit her as that is my God-given right”.
Around 2016, after X was born, Ms N attended a family gathering at the mother and father’s house. During the discussion, the mother tried to give her opinion and the father interrupted saying words in Arabic to the effect of “You don’t know anything just shut up”. When the mother tried to speak again, Ms N states that he saw the father pick up a bunch of keys from the coffee table and (throw) them at the mother. At the time these keys were thrown, the mother was holding X. Ms N denied fabricating this evidence when under cross examination.
Evidence of Dr U, Consultant Psychiatrist
At the request of the mother’s solicitors, Dr U prepared a report dated 15 January 2019. The report sets out relevant background information, the previous medical and psychiatric history of the mother and the marital and family history provided by the mother
In Dr U’s opinion, the mother has developed diagnostic criteria for an Adjustment Disorder with mild anxiety and depressive symptomologies in response to the untoward interactions she has experienced with the father. In accepting the veracity of the account that the mother provided to him, Dr U accepts that the development of her anxiety and mild depressive symptoms are appropriate in the circumstances.
Dr U found no clinical evidence to support any suggestions that the mother suffers from any other psychiatric disorder. In particular, the mother has not developed any psychiatric disorder or psychiatric sequelae arising from pituitary adenoma and subsequent shunting procedure.
In his conclusions, Dr U opines that the mother’s mental health status has been good. Dr U finds that the mother has understandably developed a mild adjustment disorder with mixed depressed and anxious mood as a result of the events experienced with the father. There is no evidence of any formal psychiatric disorder that would intrude into her capacity to provide appropriate care for her daughter. Dr U anticipates that if the Court matter can be resolved, the anxiety and depressive symptomology that is currently present in the mother will rapidly remit. Any purported mental health issues do not impact to any extent on her capacity to parent.
Dr U was not required for cross examination.
Evidence of the Family Consultant
At the request of the Court, a family report dated 7 September 2018 was prepared by Ms V. To prepare the report, Ms V conducted interviews with both the father and the mother, observed the child with both parents separately and reviewed the affidavits of the father and mother. Ms V was provided with a copy of all additional affidavits that had been tendered prior to giving evidence. None of this material altered her recommendations.
Ms V notes that relevant risk factors include the allegations of family violence perpetrated by the father to the mother, the allegations that the father intends to have X circumcised, allegations that the father misused steroid medication and allegations made by the father as to the mental health of mother.
At paragraph 25, Ms V notes that the mother presented as highly distressed and emotional throughout her interview, particularly when answering questions about family violence. Ms V notes in the report, the allegations from the mother that the father was a violent man with radical beliefs about women and children and that he could not be trusted with X.
At paragraph 33, Ms V reports that the father denies wanting to have female circumcision performed on X. Ms V notes that the father claimed that the allegations in this regard had been made by the mother so that his visa would be cancelled. At paragraph 43, the father denies drug or alcohol misuse.
At paragraph 47, Ms V notes the father has concerns regarding the mother’s mental health. The father thought that this may be related to a brain surgery that the mother previously underwent. The father’s concerns about the mother’s mental health also arose because he claims she has made false allegations against him.
In her evaluation, commencing at paragraph 77, Ms V notes that it appears the current arrangements are resulting in X developing a relationship with the father. X appeared familiar with the father and accepted physical contact from him without issue. The father appeared attuned and sensitive to her needs.
At paragraph 83, Ms V notes that according to subpoenaed information provided by F Hospital, staff at the hospital considered the father’s behaviour towards the mother as inappropriate. At paragraph 84, Ms V notes that if the Court accepts the mother’s account of family violence at the hands of the father, this would be considered coercive and controlling family violence. Exposure to coercive controlling family violence, according to Ms V, is known to have a negative impact on children including on their physical safety and psychological well-being. Ms V notes at paragraph 87, that in the absence of a perpetrating parent assuming responsibility for the violence, presenting as motivated to change and engaging with specific therapeutic change program, it is likely that the coercive controlling dynamic would continue post separation which is likely to undermine the non-perpetrating parent’s ability to make and enforce child focused parenting decisions.
At paragraph 91, Ms V notes that in the event the Court finds that the father has perpetrated family violence as alleged by the mother, then it is recommended that X spend no time with the father. Ms V considers that such contact would be likely to have significant deficits in terms of the father’s future parenting of his daughter and also be highly detrimental to the mother’s mental health if she was to have an ongoing co-parenting relationship with him.
Ms V notes that if the Court finds that threats of female circumcision were made, it is unknown if this was used as a threat in the context of family violence as a means to frighten the mother or if the father genuinely intends to have this performed on X. If the threats did occur in the context of family violence, then this is a very significant, extreme and highly abusive threat to make in its ability to instil fear. In Ms V’s view, if the threat was made with no intention of carrying it out, the very nature of the threat made with the purpose to cause fear, is so significant that it would be considered extreme coercive and controlling family violence.
Ms V notes that if the Court found that the father did not perpetrate the family violence as alleged and that the mother has made vexatious and malicious allegations against him, or that she is experiencing delusions, then consideration may have to be given to X living with the father and spending time with the mother. However, given the father’s current living and working/study commitments, it is unknown if this would be practicable.
In her recommendation section, Ms V concludes that if the father has perpetrated coercive controlling violence against the mother and/or generally threatened that X undergo female circumcision, Ms V recommends that the mother have sole parental responsibility, that the child lives with her and spend no time with the father.
If the Court were to find that the mother has made vexatious and malicious allegations against the father, consideration may have to be given to X living with the father. If the Court finds the mother genuinely believes the father’s perpetrated family violence against her but this did not occur, Ms V recommends the mother attend a mental health professional immediately for assessment and treatment.
During cross examination, Ms V was asked about the report from Dr U which concluded that the mother has an adjustment disorder. Ms V states this was not uncommon and such disorders are generally temporary in nature until the stressor resolves or is removed or the person learns to cope with the stressor. Ms V noted that continued contact with the father may cause the mother some issues if she has continuing concerns as to X’s safety and this could impact on her parenting ability. This would be regardless if the time were limited to identity time.
There were particular issues as to how the mother would deal with questions from X as to the father if no contact were ordered. The mother would need to seek professional help to deal with these issues.
Ms V commented that if the father had committed family violence, then seeking sole parental responsibility was a continuation of controlling behaviour. If the father committed the violence alleged and still denies that, then in Ms V’s opinion the father has no insight into his behaviour and is unlikely to change in the future. A person who was abusive to their partner is more likely to have issues with and be abusive to a child. In this case the abuse was not just physical, it was also emotional abuse. Ms V commented that if the Court found the father had committed the family violence as alleged, then the risk to X would increase as X got older.
Matters of Credit
The mother’s and father’s written and oral evidence were at complete odds in relation to a number of issues. The mother made allegations of persistent serious, violent conduct towards her including sexual assaults within the marriage, together with verbal abuse, coercive and controlling conduct and financial abuse.
The father categorically denied each and every one of the allegations of domestic and sexual violence towards the mother, or that he had made any threats to engage in FGM on X. The father claimed that the mother’s allegations against him, together with the evidence given by witnesses called in her case were fabrications and lies.
In the witness box, the mother was emotional on many occasions where she described incidences of sexual and family violence towards her, together with threats made towards X. On one occasion she broke down in the witness box and a short adjournment was needed. The father on the other hand remained relatively calm under cross examination and simply denied any and all of the allegations that were put to him.
In assessing the parties’ credibility, I have considered the totality of the evidence that has been called in each case, including documentary evidence and evidence given by witnesses called in each parties’ case.
In relation to the father, he called only called one witness, Mr P, to give oral evidence. During the course of giving his evidence, it was apparent that Mr P’s recall of the evidence in his affidavit was not particularly good. He appeared confused at times which he explained was as a result of a lack of sleep due to his wife having had a difficult birth a few weeks earlier. He appeared unwilling to assume any fault on the part of the father. Critically, when asked if he believed that married women should obey their husband, his answer was most of the time. I formed a view that Mr P was an unimpressive witness and added little to the strength of the father’s case.
The witnesses called in the mother’s case however, gave their evidence in a clear and convincing manner. They denied categorically suggestions put to them that they had concocted their evidence and lied to the Court. While a number of the witnesses called in the mother’s case were relatives, there were some independent witnesses.
Ms W was a neighbour of the mother and father in the Suburb S unit complex in which they resided. I found her a witness of truth with no motivation to concoct evidence on behalf of the mother.
Mr M is a neighbour of the mother’s parents. He also gave his evidence with conviction. I assessed him to be a credible witness with no motivation to lie.
Ms J was the former landlord of the father. She gave evidence that she does not know the mother. Again she has no reason to lie to the Court.
I have also considered the documentary material that was tendered as part of the mother’s affidavit. This included a report from the Y Hospital in Country C which confirmed that the mother had attended the hospital on in 2015, and alleged she had been assaulted by her husband. The father suggests this document is a fabrication. I have also taken into account the hospital notes from F Hospital following the birth of X. This confirmed the incident of the father grabbing at the mother’s breast and trying to force the baby onto the breast.
In considering the totality of the evidence, in particular the weight of the evidence both given by witnesses called on behalf of the mother and documentary evidence which I find highly persuasive, I am satisfied that the father is not a witness of truth.
I prefer the version of events given by the mother which I supported by numerous witnesses who give a consistent account of the actions of the father. The mother’s version is also supported by contemporaneous documentary evidence.
The Issue of Family Violence
The evidence of the mother together with her witnesses, which I accept, indicates that the father has perpetrated extreme coercive and controlling family violence. I reject the denials of the father as being simply implausible and not consistent with the overall evidence.
I find as a fact that the father has assaulted the mother on multiple occasions during the course of the marriage and that these assaults have included multiple sexual assaults. I further find as a fact that the father has engaged in verbal abuse towards the mother, controlling behaviour, and financial abuse. I find as a fact that the father has made a threat to perform FGM on X.
I accept the evidence of Ms V, the family consultant, that it does not matter whether or not the father intended to carry out the threat of FGM, simply making the threat was “a very significant, extreme and highly abusive threat to make in its ability to instil fear”. I concur with Ms V that it is not necessary for the Court to determine whether or not the father intends to carry out this threat, but simply making it is extreme, coercive and controlling family violence. If this threat is real, then the threat to X will escalate as she gets older.
Consideration
Based on a consideration of all of the evidence and the findings that I have made above that the father has engaged in extreme coercive and controlling family violence including assaults on the mother, I have formed a view that there is a need to protect X from further physical and psychological harm, by being exposed to family violence from the father. I am satisfied, in the interests of X, pursuant to S61DA(2) of the Act, that it is not appropriate for an order to be made for equal shared parental responsibility.
I am satisfied that it is in the best interests of X that she live with her mother and that her mother have sole parental responsibility. Any other order, particularly those sought by the father, that she live with him and he have sole parental responsibility would expose X to the risk of unacceptable serious harm of both assaults, possible FGM and psychological harm. I am particularly concerned about the complete lack of insight by the father into the behaviour that I have found has occurred. I am satisfied that it is his continuing belief that as a husband and father, he has the absolute right to expect that his wife and child will obey him in all aspects he requires and that if they do not, he has a right to assault either of them or take such other action as he may think fit. This attitude will not change in my view into the future.
Having come to a conclusion that X should live with her mother and the mother should have sole parental responsibility, I must now consider what contact, if any, should occur between X and her father.
The mother seeks no contact time and no communication. Ms V, the family consultant recommends that if the father has perpetrated coercive controlling violence against the mother and/or genuinely threatened that the X undergo FGM, she should spend no time with the father. This option would result in X not having any relationship with the father until at least adulthood (and she is able to act to establish the relationship herself).
The ICL offers two options for the court to consider.
·Option A is that the mother have sole parental responsibility for X and she live with the mother. Further she spend no time with and have no contact with the father.
·Option B is that the mother have sole parental responsibility for X and she lives with the mother. X shall spend time with the father on four occasions each calendar year, such contact be supervised by a contact service with the cost to be borne by the father.
In both option A and option B, the ICL recommends that within two months of these orders, the mother shall seek a referral to a psychologist and thereafter follow that psychologist’s advice and directions in relation to either no contact or limited contact with her father. Further, that the mother seek a referral from her medical practitioner or to a counsellor for support in dealing with her anxiety about X. Orders are also sought that the ICL appointment be extended for a period of three months from the date of any orders made by the Court.
Ms V, at paragraph 96 of her report, notes that children not having a relationship with a parent may have a negative impact on their well-being and it may impact on their identity formation. They may also experience a sense of loss and its associated grief and they may experience feelings of rejection and abandonment by that parent.
Ms V goes on to state at paragraph 97 of her report that “given the alleged risk issues in this matter, if the Court finds that the father poses an unacceptable risk of harm, X’s safety and well-being must be prioritised over her relationship with the father. As X is essentially in the process of developing her relationship with the father, ceasing that relationship now, given her current age, it is likely to be less difficult for her than ceasing relationship in the future. Given X’s age and developmental stage, she may later have difficulty remembering the father as she passes the age of three”.
Ms V goes on to state that care will need to be taken about what X is told about her father when she becomes older. It is recommended that the mother seek professional advice as to how to manage this issue when she starts questioning her mother on that issue.
The Court accepts that the father loves X and in turn she has a relationship with him at the moment that is developing. The Court is mindful that supervised contact has been successfully undertaken for some time with no issues occurring. The Court is also mindful that whilst an Apprehended Domestic Violence Order was granted in 2017 and expired in 2018, there has been no alleged breach or other action alleged in relation to the father which would give the Court concern that he may not comply with orders of the Court in the future.
The Court is very loathe in circumstances where there has been successful contact time to order on a final basis that there be no contact and no time. The Court is mindful of the benefit to a child of having a meaningful relationship with both parents.
The conundrum in this case is the finding of the Court, as detailed above, that the father has committed extreme coercive and controlling domestic violence upon the mother which has included physical and sexual assaults. The Court has found as a fact that the father has threatened FGM on X. The father has made threats to take X for her to be raised by a proper Muslim family so that she does not turn out to be “like the sluts in Australia”, including like her mother.
I am satisfied that the mother’s mental health may be impacted by continuing concerns as to what the father may do or say to X if he has the capacity to have contact time with her. This could impact on the mother’s parenting capacity in respect of X.
Most importantly in my view, Ms V, in response to questions, conceded that it is only in very rare cases she would recommend that there be no time and no communication. Further, there were concerns that the risk to X would increase as she got older. The Court in this regard particularly notes the evidence, which I accept, that the father said that he would need to “tame” X to his will and if she did not obey his commands that he was justified in hitting her.
The Court is also mindful of the absolute denials by the father that he is engaged in family violence and as a result the Court has no confidence that he has any insight into the nature and impact of his behaviour on either the mother or X. The Court has little confidence, notwithstanding that contact to date has been uneventful, how he would respond in circumstances where he did not approve of any of his daughter’s actions or indeed she sought to challenge him.
In coming to the conclusion that I have, I have had particular regard to s.60CA of the Act which sets out:
Child’s Best Interests to be the paramount consideration in a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In determining what is in the child’s best interest, the Court must consider the matters set out in s 60CC(2) and s 60CC(3) of the Act. In applying these considerations, in accordance with s 60CC(2)(a) of the Act greater weight must be given to the need to protect the child from being subjected to or exposed to abuse, neglect or family violence or psychological harm, over the benefit to the child of having a meaningful relationship with parents. In terms of the additional considerations under s60CC(3) I find as follows:
Section 60CC(3)(a)
X is too young to be able to express any views that the Court could place any weight on. The court is satisfied however that she enjoys spending time on with her father and that would continue into the future.
Section 60CC(3)(b)
I am satisfied that the mother has been the primary carer of X to date and that a warm and loving relationship exists between them. It is not suggested that she has not been well looked after. Additionally, she enjoys the benefit of regular exposure to a large extended family of the mother that includes grandparents, a great aunt, a great grandparent, an aunt and a cousin. I am satisfied that the mothers extended family are very supportive of her and X and this will continue into the future.
The father, on the other hand, is alone in Australia and there is no extended family that he can call upon. His only relationship with X has been in the form of supervised contact at a contact centre. He has never had X overnight, prepared meals on a continuous basis for her, had to deal with any illness or challenging behaviour. I am satisfied that the risks associated with maintaining contact with father are such that they override X’s right to spend time and have communication with her father.
Section 60CC(3)(c)
All major decisions in relation to X to date have been taken by the mother. The father’s time with X has been restricted to supervised contact with no communication outside that time period.
Section 60CC(3)(ca)
The evidence is that the father is not paying any money to support X and there is no child support arrangement in place. I note that the father to date has borne the full cost of supervised access to X. I am satisfied that the mother has taken care of X to a high standard and that she has been well looked after.
Section 60(3)(d)
The orders which the Court has settled upon will result in there being no time and no communication between the father and X. Evidence from Ms V indicates that there will be issues associated with this and she has recommended that the mother seek professional advice on how to deal with the issues of there being a completely absent father.
Section 60(3)(e)
The orders that the Court has settled upon will substantially impact on X’s right to maintain a direct relationship with her father. I am satisfied however that the risks associated with continued contact with the father, due to the risk of exposure to psychological harm or family violence, are such that this risk is far greater than the risk associated with separation from the father.
Section 60CC(3)(f)
I am satisfied as to the capacity of the mother to provide for X’s emotional and intellectual needs. There is no evidence before me that she has not carried this out to date to a satisfactory manner. Given the findings of family violence I have made above, I have grave reservations as to the capacity of the father to put X’s needs before his own. He would expect absolute obedience from X. He will be unable to cope with challenging behaviour other than by resorting to the use of physical violence. Given his strict views on the roles of women and his desire to prevent X from being raised as a ‘slut’ like other women in Australia, I have no confidence that the father would be able to provide for X’s emotional and intellectual needs.
I am satisfied that the mother has access to an extended family who will be able to provide X with a variety of role models, including appropriate male role models.
Section 60CC(3)(g)
I am satisfied that orders giving the mother sole parental responsibility will enable X to be brought up as an Australian Muslim woman, aware of her background and ethnicity. Evidence was given that she is already being exposed to cultural activities and that this will continue into the future. I am also satisfied that sole parental responsibility with the mother will ensure that X is not exposed to unacceptable and inappropriate male role models, together with attitudes towards women that are unacceptable in modern Australia. I refer here in particular to the father’s apparent attitude that women amount to no more than property and that it is his God-given right to chastise them through the use of violence
Section 60CC(3)(h)
This section is not applicable.
Section 60(3)(i)
I am satisfied that the mother has an appropriate attitude towards and care and love for X. I am satisfied that she will do everything she can to ensure that she is protected, emotionally nurtured, and raised in an Australian Muslim tradition.
Section 60CC(3)(j)
I have considered the overall impact of the extreme family violence, including the threats of FGM to X that has been perpetrated by the father. I have considered the impact that this is has had, not only on X but also on the mother. I have considered the impact of this family violence into the future, had I ordered continuing contact with the father. I am satisfied that the risks associated with this family violence outweigh the benefits of there being continuing contact with the father.
Section 60CC(3)(k)
I have noted that an ADVO was granted in 2017, however it expired in 2018. No allegations have been put to me that indicate that there has been any breach of that order since it was made. No allegations have been put to me that indicate that there have been incidents which might warrant a further ADVO being granted. It has not been put to me by counsel for the mother that any injunction restraining the father from approaching or contacting the mother is necessary.
Section 60CC(3)(l)
I am satisfied that the orders that have been made will bring a finality to the proceedings and are unlikely to lead to the instigation of further proceedings in relation to X.
Section 60CC(3)(m)
I am satisfied there is no other factual circumstances that are relevant to the making of the orders that the Court has other than the following:
The Court has given consideration to the recommendation of the ICL regarding orders that the mother seek counselling and/or assistance from psychologists in relation to both herself and how to deal with X once she begins asking questions in relation to the whereabouts of her father. The Court notes evidence given that the mother has engaged extensively to date with appropriate professionals in relation to psychological and other assistance. Mr Schroder, counsel for the mother, opposed the making of any such orders as put forward by the ICL on the basis that it was not necessary given that sole parental responsibility would vest with the mother. In all of the circumstances, I am not satisfied that an order requiring the mother to seek professional assistance is necessary.
It was also not put to me by any party that it was necessary for the Court to grant injunctive relief, restraining the father from approaching, assaulting, molesting or communicating with either the mother or X at the place of residence, any day care centre or school attended by X. Accordingly no such order is made.
Given the orders I have made, I see no utility in extending the appointment of the ICL.
I certify that the preceding one hundred and sixty three (163) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 6 March 2020