MASIH & EL SAEID - [2019] FamCA 234

FAMILY COURT OF AUSTRALIA

MASIH & EL SAEID

[2019] FamCA 234

FAMILY LAW – CHILDREN – Best interests – Where there are two children of the relationship – Where both parents sought sole parental responsibility for the children – Where the parents have been unable to communicate on any parenting issues – Where both parents sought an interim period of no time with the other parent – Where the children allege violence and poor living conditions when in the father’s care – Where there is no evidence that the children are at significant risk of harm in the father’s care – Where the children express wishes to only spend time with the mother – Where having no time with the father would not be in the best interests of the children – Orders made for the mother to have sole parental responsibility – Orders made for the children to have significant and substantial time with the father.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 65DAC

APPLICANT:

Mr A Masih

RESPONDENT:

Ms El Saeid

INDEPENDENT CHILDREN’S LAWYER:

JPM Legal

FILE NUMBER:

SYC

2986

2012

DATE DELIVERED:

16 April 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATES:

28, 29, 30, 31 May & 1 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schonell SC

SOLICITOR FOR THE APPLICANT:

Diamond Conway Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Friedlander

SOLICITOR FOR THE RESPONDENT:

Sharah & Associates Solicitors & Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Leis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Meehan

Orders

All existing parenting orders are discharged.
The mother shall have sole parental responsibility for R born … 2006 and Q born … 2009 (“the children”).
The mother shall:
(a)notify the father at the earliest practical time of any major decisions to be made in relation to the health, education or change of religious observance for the children or either of them; and
(b)take any views offered by the father in relation thereto, into account; and
(c)advise the father as soon as practicable of the decision she has made on that issue.
The children shall live with the mother.
For a period of two months commencing from the date of these Orders the children spend time with the father as follows:
(a) From 10.00 am to 2.00 pm each Sunday;
(i)that time shall commence by the mother delivering the children to a Contact Centre as agreed between the parties at the time required before the commencement of each occasion.
(ii)that time shall conclude by the father delivering the children to the Suburb J home or such other venue as is agreed between the parties.
(b) from after school to 7.30 pm each Wednesday;
(i)that time shall commence by the father collecting each child after school, from the school premises;
(ii)that time shall conclude by the father delivering the children to the Suburb J home or such other venue as is agreed between the parties.
As and from the conclusion of the period during which Order 4 applies the children shall spend time with the father as the parents may agree but in default of any agreement during school term:
(a)from after school each alternate Friday until the commencement of school on the following Monday or if Monday is not a school day, on the following Tuesday;
(i)that time shall commence by the father collecting each child after school, from the school premises;
(ii)that time shall conclude by the father delivering the children to their school or respective schools.
(b)From after school each alternate Thursday, being the Thursday immediately following the Monday/Tuesday referred to in (a) until the commencement of school on Friday;
(i)that time shall time commence by the father collecting each child after school, from the school premises;
(ii)that time shall conclude by the father delivering the children to their school or respective schools.
The mother is restrained from attending at the children’s schools at or near the time the father is to collect the children from school pursuant to these Orders.
Commencing with the July school holidays in 2019, the children shall spend time with the father during school holidays as the parents may agree but in default of any agreement that will be for the first half of each of the shorter school holiday periods and on a week about arrangement during the December/January school holidays. Unless the parents otherwise agree the children will spend the first week of the December/January school holidays with the mother.
(i)That time shall commence by the father collecting each child after school, from the school premises on the last day of school before the commencement of the shorter school holidays and by the mother delivering the children to the father at his home or such other venue as is agreed between the parents at the commencement of each of his weeks of the December/January school holidays;
(ii)That time shall conclude by the father delivering the children to the Suburb J home or such other venue as is agreed between the parents.
The parents shall facilitate the children’s attendance with a therapist agreed between the parties and the father and mother shall follow the directions of that therapist in relation to the duration and frequency of the children’s appointments with the therapist, it be noted that if possible a therapist from the children’s social and religious background shall provide such therapy.
Each parent is restrained from denigrating the other parent to or in the presence or hearing of the children or either of them.
Each parent is restrained from striking the children or either of them.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Leave is granted to the parties to apply within 28 days, on giving at least seven days’ notice to the Court and each other in relation to amending the wording of these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Masih & El Saeid has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC2986 of 2012

Mr A Masih

Applicant

And

Ms El Saeid

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings between Mr A Masih (“the father”) and Ms El Saeid (“the mother”). The parties have two children: R born in 2006 and aged 13 years and Q born in 2009 and aged nine years.
Interim orders were made by consent on 17 September 2012 providing for the parents to have equal shared parental responsibility and the children to live with the parents in a shared care arrangement which included them living with the father from 10.00 am Sunday to 8.00 pm Wednesday each week. This arrangement changed in April 2017. Between 16 April 2017 and the date of hearing the father only spent time with the children on three occasions.
Each parent is seeking sole parental responsibility for the children and that the children live with that parent.
The father seeks that the children live with him and spend no time with the mother for six weeks and then that their time with her be supervised for a period, ultimately leading to unsupervised time on each alternate weekend. He seeks that there be no other communication between the children and the mother for 12 months. The ultimate proposal of the mother is that that the children spend time with the father provided they are comfortable in doing so and provided the time is supervised for a period.
The mother contends that the father was violent to her at times during their marriage and since and that he treated her in a controlling and demeaning way. The father contends that the mother has made false representations against him and that the children have been alienated from him by her. Each parent contends that the other has neglected the children.
It is the strongly expressed wish of the children to remain living with the mother and to spend no time with the father.
I have decided that the best interests of the children would be met by the children continuing to live mainly with the mother but having substantial and significant time with the father. These are the reasons for that decision.

Applications

The orders ultimately proposed by the parties were not crystallised until the conclusion of the evidence at trial. As to the final proposals:
The father sought the following orders (exhibit18):
1.That all existing parenting orders be discharged.
2.That the Applicant Husband have sole parental responsibility for the Children of the marriage, [R] born in 2006 and [Q] born in 2009 (“the Children”).
3.That the Children live with the Father.
4.That within 48 hours of the making of these Orders the Mother cause the Children to be delivered to the Father and for a period of 6 weeks the Children spend no time with the Mother.
5.That for a period of 6 months commencing from the conclusion of the 6 week period in Order 4 the Children spend time with the Mother as follows:
5.1From 10am to 2pm each Sunday;
5.2The time be spent at a Contact Centre as agreed between the parties.
5.3The Father shall deliver the Children to the Contact Centre at the commencement of the time and the Father shall collect the Children from the Contact Centre at the conclusion of the time.
6.Commencing from the conclusion of the period in Order 5 the Children shall for the following 6 months spend time with the Mother from 10 AM to 4 PM each Sunday and in relation to that time:
6.1The Mother shall collect the Children from the Father’s residence at the commencement of the period of time.
6.2The Mother shall deliver the Children to the Father’s residence at the conclusion of the period of time.
7.Commencing from the conclusion of the period in Order 6 the Children shall for the following 6 months spend time with the Mother from after school Friday to 9 AM Saturday each weekend and in relation to that time:
7.1The Mother shall collect the Children from the schools that the Children are attending at the commencement of the period of time; and
7.2The Mother shall deliver the Children to the Father’s residence at the conclusion of the period of time.
8.At the conclusion of the period in Order 7 the Children shall spend time with the Mother from after school Friday until before school Monday each alternative week and the Mother shall collect the Children from their schools after school Friday and shall deliver the Children to their schools on Monday morning.
9.The Mother’s time with the Children pursuant to Order 6 shall only commence if the Mother has complied with Order 5.
10.The Mother’s time with the Children pursuant to Orders 7 and 8 is dependent upon the Children being return to the Father at the conclusion of each period of time with the Mother.
11.In the event that the Children are not returned to the Father at the end of periods of time pursuant to Orders 6, 7 and 8 then the Mother’s time with the Children is suspended and the Mother shall spend time with the Children in accordance with Orders 5.1 - 5.3.
12.The Father shall facilitate the Children’s attendance with a therapist nominated by the ICL and the Father and Mother shall follow the directions of that therapist in relation to the duration and frequency of the Children’s appointments with the therapist, it be noted that if possible a therapist from the Children’s social and religious background provide such therapy.
13.That for a period of 1 year from the date of these orders the Mother is restrained from contacting the Children or the Children school in any way including by telephone, text message and any form of electronic or social media communication including attending at their school.
14.That for the period commencing 12 months from the date of these Orders and concluding 24 months from the date of these Orders the Mother is restrained from contacting the Children or the Children school in any way including by telephone, text message and any form of electronic or social media communication including attending at their school save that the Mother may attend the children’s schools for the purpose of delivering or collecting the Children from school pursuant to Orders 7 and 8 herein.
15.That each party be restrained from denigrating the other parent to the Children or in the presence of the Children or at all.
16.That each party be restrained from discussing these proceedings with or in the presence of the Children or show to the Children any document connected with these proceedings.
17.That in the event that the Mother’s time with the children pursuant to Orders 6, 7 and 8 commences or concludes on a non-school day, the children shall be collected from the Father’s home and or returned to the Father’s home.
The mother sought the following orders (exhibit 11):
1.That the children live with the Mother.
2.That the Mother have sole parental responsibility.
3.That the Father spend time with the children supervised
(i)For two (2) hours on a Sunday for a period of one (1) month, and provided they are comfortable in his presence, then
(ii)For four (4) hours on a Sunday for a period of one (1) year thereafter, and provided that the children are comfortable in the presence of the father at the conclusion of that one (1) year then;
(iii)From 10am to 5pm unsupervised each Sunday until R attains the age of fifteen (15) years and then,
(iv)Every second weekend from 9am Saturday until 5pm Sunday supervised.
4.That the parties attend family therapy involving the children for so long as the family therapist deems necessary.
The Independent Children’s Lawyer (“ICL”)’s orders sought were provided during final submissions on 1 June 2018 (exhibit 21). The ICL sought:
1.That all existing parenting orders be discharged.
2.That the Applicant Husband have sole parental responsibility for the Children of the marriage, [R] born ,,, 2006 and [Q] born … 2009 (“the Children”).
3.That the Children live with the Father.
4.That within 48 hours of the making of these Orders the Mother cause the Children to be delivered to the Father and for a period of not less than 6 weeks the Children spend no time with the Mother.
5.That for a period of 6 months commencing from the conclusion of the 6 week period in Order 4, but subject to a contact centre placement being available, the Children spend time with the Mother as follows:
5.1From 10am to 12:00pm each Sunday (or such other time up to 4 hours as may be arranged by the contact centre);
5.2The time be spent at a Contact Centre as agreed between the parties.
5.3the Father shall deliver the Children to the Contact Centre at the commencement of the time and the Father shall collect the Children from the Contact Centre at the conclusion of the time.
6.Commencing from the conclusion of the period in Order 5 the Children shall for the following six months spend time with the Mother from 10:00 to 4:00 each Sunday and in relation to that time:
6.1The Mother shall collect the Children from the Father’s residence at the commencement of the period of time.
6.2The Mother shall deliver the Children to the Father’s residence at the conclusion of the period of time.
7.Commencing from the conclusion of the period in Order 6 the Children shall for the following six months spend time with the Mother from after school Friday to 9:00 Saturday each weekend and in relation to that time:
7.1The Mother shall collect the Children from the schools that the Children are attending at the commencement of the period of time; and
7.2the Mother shall deliver the children to the Father’s residence at the conclusion of the period of time.
8.At the conclusion of the period in Order 7 the Children shall spend time with the Mother from after school Friday until before school Monday each alternative week and the mother shall collect the children from the schools after school Friday and deliver the Children to their schools on Monday morning.
9.The mother’s time with the Children pursuant to Order 6 shall only commence if the mother has complied with Order 5.
10.The Mother’s time with the Children pursuant to order 7 and 8 is dependent upon the children being return to the Father at the conclusion of each period of time with the Mother.
11.In the event that the Children are not returned to the Father at the end of periods of time pursuant to Orders 6, 7 and 8 then the Mother’s time with the Children is suspended and the Mother shall spend time with the Children in accordance with Orders 5.1 - 5.3.
12.The Father shall facilitate the Children’s attendance with a therapist upon consulting with the Mother and the Father and the Mother shall follow the directions of that therapist in relation to the duration and frequency of the Children’s appointments with the therapist, it being noted that if possible a therapist from the Children social and religious background provide such therapy.
13.That for a period of 1 year from the date of these Orders the Mother is restrained from contacting the Children or the Children’s school in any way including by telephone, text message and any form of electronic or social media communication including attending at their school.
14.That for the period commencing 12 months from the date of these Orders and concluding 24 months from the date of these Orders the Mother is restrained from contacting the Children or the Children’s school in any way including by telephone, text message and any form of electronic or social media communication including attending at their school save that the Mother may attend the Children’s schools for the purpose of delivering or collecting the Children from school pursuant to orders 7 and 8 herein.
15.That each party be restrained from denigrating the other parent to the Children or in the presence of the Children or at all.
16.That each party be restrained from discussing these proceedings with or in the presence of the children or show to the children any document connected with these proceedings.
17.That in the event that the Mother’s time with the Children pursuant to Orders 6, 7 and 8 commences or concludes that on a non-school day, the children shall be collected from the Father’s home and or returned to the Father’s home.
18.The Father’s will within 48 hours engage with a contact centre to arrange for the supervision of the mothers contact pursuant to order 6 and that both the father and mother will thereafter take all reasonable steps to ensure that contact may proceed at such centre.
19.The Father shall, within seven days of these orders, attend upon a therapist for the purpose of addressing the matters raised as to his parenting style by the Single Expert, and thereafter remain engaged until such time as the therapist considers that further engagement is no longer required.
20.The Father is given leave to provide a copy of the Single Expert’s report, and any transcript of the expert’s oral testimony, to any therapist working with the children or himself for the purpose of these orders.
21.As to the children’s time with the mother, after the time regime set out in these orders has progressed to extended overnight time, the Father will give consideration to time as follows:
a.Mother’s Day
b.Significant cultural events.
c.Half school holidays
22.The mother is restrained from speaking with the children in a manner which may undermine the residence with the father.
23.The Father and the mother are restrained from using physical discipline in relation to the children.
24.The father shall, except where compliance is reasonably impracticable, that:
a.the children attend only at a single general practice (being a practice other than a practice operated by the father or a paternal family member):
b.the children maintain the current schooling and extra curricular activities.

Written Evidence

The father relied on:
(a)affidavit of the husband filed 8 May 2018;
(b)affidavit of Mr B Masih filed 8 May 2018;
(c)affidavit of Ms AF filed 21 February 2018;
(d)affidavit of Ms AG filed 26 February 2018; and
(e)affidavit of Mr U filed 6 May 2018.
The father sought to rely on an affidavit of Mr AK filed 13 September 2017 but the deponent could not be made available for cross-examination and his affidavit was excluded on objection.
The mother relied on:
(a)amended Response filed 25 May 2018;
(b)affidavit of the mother filed 9 May 2018; and
(c)affidavit of Ms T filed 5 June 2017.

Expert Evidence

The single expert forensic psychiatrist was Dr AD. His written report was dated 28 March 2018.

The Hearing

The hearing related to competing parenting applications. There are also on foot proceedings between the parents for property settlement. Pursuant to earlier trial directions, the property settlement proceedings were split, with issues involving third parties to be heard and determined before the balance of the proceedings. The third party issues were heard in a hearing before me in March 2018 and judgment is reserved. That gave rise to the question of whether the evidence, including oral evidence in the March hearing could be relied on as evidence in the parenting proceedings. For reasons given at the time I indicated that all of the evidence in the March hearing is available evidence in the parenting proceedings save that, if a party sought to rely on particular evidence from the earlier proceedings that party had to specifically identify the evidence in the course of the parenting trial. That was necessary if only because the ICL was not present or represented at the earlier hearing. Finally, some of the transcript of the March 2018 hearing was made an exhibit in the parenting case.
The 2018 hearing in the parenting proceedings commenced on 28 May 2018. On that date an oral application was made on behalf of the mother to disqualify the ICL. For reasons given on that day, her application was dismissed.
I raised with the parties and confirmed with them that the proceedings were to be determined on the basis of the law that existed prior to June 2012. The hearing was listed to conclude on 31 May 2018 but for various reasons it could not be contained within that time and by arrangement with the parties it ran into and consumed most of 1 June 2018. On that date judgment was reserved.
Ultimately, each of the parents and the ICL sought orders involving a period of supervision of the time of the other parent with the children. There are waiting periods for most if not all Contact Centres and the process of putting in place a supervised contact arrangement itself takes time with the parents obliged to complete various forms and often to attend an interview. In an attempt to avoid a delay in implementing the supervised time that appeared to be inevitable, after discussion with the parties, at the conclusion of the hearing I made orders in the following terms:
1.Each of the parents shall forthwith do all things and sign all documents to make arrangements for supervised time between one of the parents and the children at an agreed Contact Centre.
2.In the event that supervised time is not available at the agreed Contact Centre in order to facilitate the arrangements set out in the final orders made in these proceedings the father shall meet the cost of that supervision at a commercial facility.
3.Otherwise judgment is reserved and the parties are excused on delivery of judgment.
On 9 August 2018 an application was made on behalf of the mother to re-open her case. That application was listed on 30 October 2018 but on about 26 October 2018 an order was made by the Honourable Justice Le Poer Trench in terms agreed by the parties, to dismiss the application to re-open. I am not privy to the evidence supporting the application nor to the reasons for its dismissal. Upon the dismissal of that application, there was no impediment to the delivery of judgment.
There has been a substantial delay in the delivery of judgment in these proceedings and I apologise for that delay. In light of the delay I gave the parties two weeks notice of the day on which judgment would be delivered to allow for any necessary application.

Short History

The father was born in 1962 and is 56 years of age. The mother was born in 1977 and is 41 years of age. The parents met in Country X in 2005 and were married there in 2005. The mother contends that they separated under one roof on their return from a family holiday in Country X in 2010. The parents ceased living under one roof when the father left the former matrimonial home at Suburb J on 25 March 2012.
R and Q are the only children of the parents’ relationship.
The mother has a child, AL, from her relationship with Mr P.

Background Facts

The parents met in Country X in 2005. They were introduced by the mother’s second cousin, Ms AF.
The parents were married in Country X in 2005.
The father returned to Australia at about the end of 2005. The mother immigrated to Australia in 2005. Thereafter the parents lived at the father’s property at I Street, Suburb J.
It is the mother’s evidence that she has an Arts Degree from a university in Country X. She is engaged in home duties. The father works in the health industry.
In 2006, R was born.
When R was two years old he commenced attending AJ Child Care five days week from 7.30 am to 6.00 pm.
Up until 2008 the father was working on six days each week.
In 2008 the father reduced his working hours to three days a week.
In 2009 Q was born.
In 2010 the mother overdosed on prescribed medication.
The family travelled to Country X in 2010. It is the mother’s case that there were arguments between her and the father including physical violence inflicted on her by the father. Following their return from Country X, at the mother’s initiative, the parties commenced to live separately, albeit under one roof at the Suburb J property. Thus, it is the mother’s contention that the parents separated in 2010.
The father left the Suburb J property on 25 March 2012 and the mother and children remained there. The father paid the outgoings on the property.
These proceedings commenced with the father’s Initiating Application filed on 23 May 2012.
On 17 September 2012 interim parenting orders were made by consent that provided for the children to live with the father from 10.00 am Sunday to 8.00 pm Wednesday each week and otherwise with the mother (“the 2012 consent orders”) and for the parties to have equal shared parental responsibility.
In September 2015 the father ceased paying the utilities for the Suburb J property. He said that he did that after he became aware through interim proceedings that the mother had financial support from Mr P.
The father’s evidence during the hearing was to the effect that until 15 August 2016 “We were getting on – everything was moving very nicely”.
On 15 August 2016 a report was made to the Department of Family and Community Services (“FACS”) by a mandatory reporter. R said: “please help us. If I have to go home with my dad today I am going to kill myself.” R and Q were observed to be very distressed and teary and R kept saying “you have to help me” and “you can’t let me go home”. R said: “I want you to tell my Mum to pick us up today”. R was observed to be displaying profound symptoms of fear and worry when discussing going home with his father. However, FACS discounted the risk. While R said that the father hit the boys with a ruler and other things there was no information provided about the force used or the parts of the children’s bodies that were allegedly struck. Therefore there was no evidence to suggest to FACS workers that any physical discipline was likely to cause physical injury other than an injury considered very minor.
On 16 August 2016 FACS officers interviewed the children. The children told the officers that they wanted to go home with their father and stay with him full-time. They told FACS officers that there had been no electricity or hot water at their mother’s home since February 2016. R took the lead and Q simply repeated the same words. At one stage Q said “sometimes daddy hits me” and R cut him off. The FACS record notes that the father had spent time with the children in a car and was seen to be whispering intently to them in the waiting room prior to the interview. R said that it was very tiring living between two places. FACS officers allowed the children to go home with their father as there was no substantiation of any allegations.
On 17 August 2016 FACS officers attended at the mother’s home. The departmental file[1] reveals that the visit was unannounced. The mother was not at home but was contacted by telephone and agreed to return home within 10 minutes. It is recorded that she gave the departmental offices the wrong house number for her premises. It transpired that the mother returned home and disconnected the electricity to the house. Initially she did not answer the door when the departmental offices knocked. The mother initially told FACS officers that the electricity was unreliable but she later revealed that the father had ceased to pay the electricity bills, that the supplier had put a tape over the electricity box to prevent the use of electricity. She said that she removed the tape and switched the electricity on when she needed it. She said that she turned the electricity off when someone came to the house because she was worried that she would get into trouble for using electricity. The FACS officers referred to disclosures that the children had said they didn’t want to go with their father and that at the same time they didn’t want to go with their mother. The officers counselled the mother that one of the parents needed to “be an adult” and focus on the well-being of the children and put the children’s needs first. Mr P arrived at the property during the interview and he said that he was still in a relationship with his current wife, that she was not happy about the situation (with the mother) but that he would do whatever he could to keep both his wife and the mother happy. He said that the mother, R and Q visit his home, that they have sleepovers with his own children and that it all functions normally. He was asked why he provided financial assistance to the mother in respect of the legal fees and he said that he feels sorry for the mother as she did not have any other support in Australia. Mr P said that he wanted FACS to be involved as the mother was not doing anything wrong and if that meant that the children were placed in foster care because of the father’s conduct then that should happen. The officers said that as the boys were not his children those were not issues that Mr P should be involved in. The mother began to cry saying that she did not wish to risk losing the children, that she loves her children very much and that she just wanted the father to leave her alone. She said that she was not coaching the children, that she had agreed to 50/50 shared custody, that the conflict is about the house and money and that the father is using the children to hurt her. The mother said that if she knew that the children were happy and safe with the father that she would be fine, however due to the father’s bitterness as she left him she feels that he is using the children to seek his revenge. She said that she knows the children are not happy and that they are very scared of their father. She knows this as they tell her and she sees their reaction.
[1] Exhibit 16
In 2016 AL was born. He is the child of the mother and Mr P. Mr P met the parties when he was engaged to work at the Suburb J property in 2011.
Although he took no part in the parenting proceedings, Mr P gave evidence in the property hearing, which included evidence that he and the mother commenced their sexual relationship in 2015. It is the evidence of the mother before me that they started their sexual relationship in 2015 or perhaps 2014.
The evidence of Mr P in the property proceedings included that he divides his time between Melbourne and Sydney and that when in Sydney, he lives with his wife and their children at the home he shares with them. It is the evidence of the mother that Mr P’ wife knows of the mother but not of the extent of her relationship with Mr P nor that there is a child of that relationship. R and Q have met the older children of Mr P.
There were significant problems with the father’s time with the children from April 2017.
The children were with the father from 9 to 12 April 2017 over the Easter holidays. The father says that he collected the boys on the morning of Sunday 9 April and after eating a meal, R slept for four and a half hours and Q for two and a half hours. It is the father’s evidence that it was usually the case that the boys came to him both tired and hungry on the Sunday morning. The father says that on Wednesday 12 April the boys attended a sport camp and then played with their toys at his home. The father says that he and boys discussed them resuming their play when they returned to him on the following Sunday. He says that there was no indication from the boys that they were unhappy or ill at ease in his presence. He says that on the following Sunday he arrived to collect the boy at about 10.00 am and waited at the normal place, about 100 metres from the former matrimonial home. There was no sign of the children by 10.55 am and the father became worried. At 11.00 am he rang Suburb L and Suburb V Police Stations to ascertain if there were any reports about the children and was told that there were no such reports. Two police officers attended at the home at 1.00 pm at the father’s request. The mother told them that the children did not want to go with the father. The father was referred by the police to his solicitor.
There followed correspondence between solicitors and the father filed an Application in a Case seeking make up time. That application came before the Court on 25 May 2017. The mother presented evidence of diary entries purportedly made by the children. She also reported that she had been told by R that the father slapped him in the face. It is the father’s evidence that during the interim hearing, the mother’s counsel conceded that 16 April 2017 was the first time that the boys had refused to go with the father.
The Court ordered that the father be restrained from physically disciplining, punishing or assaulting the boys or swearing, verbally abusing or yelling at them but refused to vary the existing parenting orders. It is the father’s evidence that the boys were not made available on 28 May 2017, which was the next occasion after the making of those orders. The father attended with Mr U, who is the father of one of R’s classmates. Again the mother failed to deliver the boys to the father. The police attended at the former matrimonial home at the father’s request and after speaking to the mother told the father that she would cause correspondence between their solicitors and he could collect the children on the next day, after school. A further Application in a Case was filed by the father on 30 May 2017 and a Contravention Application was filed by him on 1 June 2017.
On 2 June 2017 the mother belatedly filed an application to review the orders made on 25 May 2017. Also on 2 June 2017 the Court refused the mother’s application for an adjournment and issued a recovery order. The father attended at the mother’s home on 4 June 2017 and again, the boys were not provided to him. Again the police were called.
On 5 June 2017 the police arranged to execute the recovery order at the boys’ school. R told the police that his mother had said that she was going to appeal against the orders and that he was not to leave the school until she arrived. Nevertheless, the boys went with the father. The father says that after some reluctance the boys settled down and that they stayed with him. They went to school from the father’s home and were delivered back to the mother at 8.00 pm on 7 June 2017.
The police advised the father on 9 June 2017 that on 8 June 2017 the mother had reported to them an allegation that he had pushed Q who fell against a chair and hurt his back. The father was not charged and no AVO was sought against him.
On 11 June 2017, the father attended at the mother’s home to collect the children so as to celebrate Q’s birthday. The children were not provided to him. Again the father called the police. He was told that they had attempted to contact the mother but could take no further action.
On 14 June 2017 the mother’s application to review the orders made on 25 May 2017 came before the Honourable Justice Rees who ordered that the children spend time with the father from 2.00 pm on 23 to 10.00 am on 25 June 2017. The time was to commence with the mother delivering the children to the Manager of Child Dispute Services at the Sydney Registry of the Family Court. The boys were delivered to the Registry and through the agency of the Family Consultants, they ultimately left with the father and his friend Mr U. Q went to the father first and about one hour later, R followed. The father describes enjoyable interactions between him and the boys over the following period.
The father attended at the mother’s home on 2 July 2017 and the children were not provided to him. Again the police were called but were unable to secure the transfer of the children.
On 9 July 2017 the father attended at the mother’s home and the boys were not provided to him. He rang the police and they rang the mother but to no avail.
On 16 July 2017 the father attended at the mother’s home and the boys were not provided to him. It is the father’s evidence that he heard R shouting from within the house: “Get out of here. I don’t want to see your face”. The father said that he heard Q shout: “Get out of here”. The father saw R come out of the house onto a balcony overlooking the driveway and R again shouted: “Get out of here. I don’t want to see your face”. The father said that the mother appeared to be filming the child, that she was smiling and he heard her say in the Arabic language: “Just give up!”.
On 26 July 2017 orders were made including the following order:
4.Orders be made in terms of the document titled “Father’s Proposed Minute” (Exhibit 1 dated 26 July 2017), as amended, as set out hereunder:
Without Prejudice to the outstanding applications filed 4 July 2017 and 11 July 2017.
1.That until further order the mother make [Q] born … 2009 and [R] born … 2006 (“the children”) available for time with Father for the following periods commencing 30 July 2017 from 10.00 am Sunday to 6.00 pm Wednesday and between those dates and times each week thereafter with such time to commence and conclude at either:
1.The family relationship centre
2.By the children being collected and returned by Mr U from and to the mother’s residence.
The first occasion of time with the father under those orders was to be Sunday 30 July 2017. It is the evidence of the father that he arranged for Mr U to collect that children on that day. The father deposed that Mr U told him that both boys were rude in their communication with him and refused to accompany him. Mr U told the father that he did not wish to be involved in any further collections of the children from the former matrimonial home.
The father completed an intake interview with the family relationship centre on 8 August 2017.
There was correspondence between the parties’ solicitors on 7 and 11 August 2017.
The father understands that the mother left a message with family relationship centre on 10 August 2017 but that they were unable to call her back. The father attempted to collect the children at the Suburb J home on 13 August 2017. The father says that the boys said that they were not going with him and slammed the front door in his face.

On 17 August 2017 the father pressed the Court for the issue of a further recovery order. That was not granted but orders were made including the following orders:
…
2.By consent, orders and notations are made in the terms of the document titled “Orders” (Exhibit 1 dated 17 August 2017), as set out hereunder:
Without Affecting Current Parenting Orders but in addition to the Orders
1.That the parties do all things to cause the child R DOB … 2006 to attend at the [School AP] to sit the GAT Exam (admission exam) on 19 August 2017 at 8.50 am to 12 noon at the High School Campus.
2.That the parties do all things and sign all documents and give all necessary authorisation to confirm [R’s] attendance for Dental and Orthodontic treatment in accordance with notifications from the [BV Dental Centre] directly with the mother and father.
Without Prejudice to the Father’s Application filed 4 July 2017
3.That the father be permitted to pick up [R] and [Q] from their school at 3.30 pm to take them to:
3.1Sport training at [BB Sport Academy] on each Tuesday and Thursday for training commencing 4.15 pm and he shall return them to the mother’s residence forthwith upon conclusion of the sport training provided that the father shall provide all the children’s sport equipment and clothing and he shall meet all the expenses relating to the sport training.
4.Noted that the mother completed the Intake Interview with a family relationship centre to implement the orders of 26 July 2017.
3.Orders are made in accordance with the document titled “Therapy” (Exhibit 2 dated 17 August 2017), as set out hereunder:
1.That the mother forthwith take all steps and sign all documents to facilitate [R] born in 2006 and [Q] born in 2009 attending appointments with [Mr BC] of Child Adolescent Psychology Services, [Suburb BD], such steps to include:
1.1Attending a general practitioner at a Family Practice to arrange a mental health care plan for both children for referral in terms of Annexure “A”.
1.2Delivering and collecting the children from appointments with Mr [BC], as appointed by Mr [BC] from time to time.
2.That the therapy be reportable.
3.That the father’s application in a case filed 4 July 2017 be stood over to 15 December 2017 for hearing.
4.That the mother’s solicitors make all necessary arrangements to have an interpreter at Court for the adjourned hearing.
Annexure “A”
-Breakdown of longstanding relationship with father
-Anxiety
-Aggressive behaviour
-Crying – as reported by mother
-Distractibility – as reported by mother
Investigation/explanation of reasons for change in children’s behaviour towards the father.
4.Forthwith upon settlement of a mental health plan for the children, the mother ensure a copy of that plan is provided to the Independent Children’s Lawyer and to the solicitors for the father.
On 21 August 2017 the father was advised by staff at the family relationship centre that Mr BC advised that he would not provide the therapy referred to in the orders of 17 August 2017.
On 25 August 2017 the father’s solicitor was advised by the ICL that the family relationship centre was not prepared to act as a changeover centre to facilitate changeovers when the children passed into the father’s care.
On 29 August 2017 the father attended at BK College to arrange to collect Q after school for sport practice. Q attended at the principal’s office and reacted badly to his father’s presence. He said that he did not want to talk to his father or to be near his father. He said that the father had hit him but he could not remember when. He cried loudly and pulled away when the father tried to hug him. He said that his father did many things to him; that he pushed him and made him play sport with a sore foot and many other things that he could not remember. He said that he did not like sport. The father told Q that he loved him and missed him. Q responded:
“You are faking. The Court said I can go with you but my mother says that I don’t have to. She tells me to go but I don’t have to. You have never done anything good for me.”
The father says that the principal observed to him that Q appeared to have become more resistant to seeing the father.
The mental health care plan prepared by Dr BL for the boys dated 24 August 2017[2] records that R said, among other things, that the father slapped him three times a week, most times across the face and sometimes on the back and that it was stressful to live with the father and that R feels faint.
[2] Exhibit 4
At some point before 13 October 2017, Mr U told the father that although he would not attend to collect the children from the former matrimonial home, he agreed that his house could be used as the changeover venue for the father’s time with the boys.
On 13 October 2017 orders were made about the preparation of the financial proceedings for trial and relevantly, the following order was made:
…
7.Leave is granted to the parties to restore the proceedings to the list in relation to any issue in the proceedings and particularly in relation to family therapy in respect of the relationship between the children and the father and in respect of the preparation and implementation of a mental health plan in respect of the children.
The children saw Clinical Psychologist Ms Y on 20 October, 10 November and 1 December 2017. The father met with Ms Ms Y on 21 November.
The father says that on 6 December 2017 Ms Y rang to tell him that she was concerned because R appeared anxious and said that he had been bullied at school by the son of Mr U. The father said that he was advised by R’s teacher that he seemed to be okay. The principal told the father that she had spoken to Mr AB and two other boys and that all three children appeared to be truthful when they said that R had not been bullied.
On 31 January 2018 Ms Ms Y wrote[3] to the ICL in the following terms (omitting the formal parts):
“I am writing this report in response to a consultation I had with [R] and [Q] on 29 January 2018.
In my last report dated 4 January 2018, I advised a graded exposure approach including using the [AB] family as a safe place for [R] and [Q] to reunite with their father, [Mr A Masih], would be an appropriate way forward. However, after meeting with [R] and [Q] on 29 January I feel this would not be in the boys’ best interest.
Both children were adamant that any contact with [Mr A Masih] would be highly stressful for them. In addition, [R] also reported he felt the [AB] boy had “betrayed” him to his other friend [BQ] through an online game they were playing. [R’s] level of anxiety and stress when speaking about the reconnection with his father was very evident.
[R] said he does not feel safe in that [AB] house. Both boys said they do not feel safe with their father.
[R] completed a second mood screen on 29 January. His scores were elevated for the categories of interpersonal problems and negative self-esteem. Of note, he marked the column “I want to kill myself”. When he and I discussed this further [R] reported: “I’d rather commit suicide than go to him,” referring to [Mr A Masih].
Both boys refused to accept gifts [Mr A Masih] had bought for them and left with me, despite my encouraging them to do so.
At this stage I feel I have done all I can to try to encourage [R] and [Q] to reconnect with their father. My role as the boys’ psychologist is to support them by providing a safe, non-judgemental space for them to speak. I have now had four consultations with the children and my view is that for them to have any contact with [Mr A Masih], they would not go voluntarily and it would have to be done using force. This would be highly stressful for the boys and I would not advise this occurring.
I understand [Dr AD] is to be appointed as an expert witness in this case. In my opinion, the interim hearing scheduled for 1 February 2018 relating to addressing this issue needs to be postponed until after [Dr AD’s] recommendations.”
[3] Exhibit 6 tag 10

The Expert Evidence

The single expert forensic psychiatrist was Dr AD. His qualifications include the following degrees:
·MBBS with honours from the University of New South Wales;
·Masters of Medicine (Psychotherapy) at the University of Sydney;
·Fellowship Royal Australian and New Zealand College of Psychiatrists; and
·Certificate in Child Psychiatry, RANZCP.
Dr AD’s work experience includes:
·Child, family and adult psychiatrist in private practice (1993 to current);
·Tutor of psychiatry registrars, supervisor and lecturer for fellows (2002 to current);
·Visiting Medical officer in child and adolescent psychiatry at BR Area Health Service (2000-2003; 2007-2008);
·Visiting Medical officer in child and adolescent psychiatry at BT Hospital and Community Services (1999-2002);
·Staff Specialist Child and Family Psychiatrist at BT Hospital and Community Services (1993-1999);
·Visiting medical officer as a child and adolescent psychiatrist at BT Health Scheme (1993-1997);
·Fellow in child psychiatry at both BZ Hospital and AC hospital (1991-1992);
Dr AD prepared a report in this matter dated 28 March 2018. He interviewed the parties and the children over three days in early March 2018. He conducted telephone interviews with Mr P, the principal of BK College, clinical psychologist Ms Y and psychologist Dr BM. In his report Dr AD sets out in detail the written material to which he had reference.
The father gave Dr AD an insightful account of the children’s developmental needs, achievements and progress. He emphasised his contribution to their high level of achievement. He was proud of their achievements. The father’s criticism of the mother to Dr AD was consistent with his detailed affidavit material. Dr AD reported that the father said that R is “a quiet, timid quiet, gentle, anxious, highly talented and creative 12-year-old boy.” Although assessed in 2010 as having profound delay in expressive and receptive language skills R had nevertheless achieved top bands in the year three and year five NAPLAN tests and had been awarded a scholarship. The father said that R is a bit stubborn and has a restricted diet. The father told Dr AD that Q was more outgoing and extroverted than his brother. He was “naturally gifted with regard to sport, enjoying sport, martial arts and cricket.” He had achieved consistently high grades. The father viewed Q as a leader and a confident boy, open to all views. The father explained to Dr AD that the children’s attitudes and behaviour had become “bizarre, unusual and very strange”. They had become physically aggressive, hostile and disrespectful to him, refusing contact. In the father’s opinion that was a response to the mother’s repeated applications to exclude him from their lives. The father said that the mother had been highly critical of him while asserting that she had done everything possible to influence the children to maintain contact with him. The father said that before separation the mother had told her cousin Ms AF that the father could have the children when the mother got what she deserved (I presume that the father thought that was a reference to a financial settlement). The father told Dr AD that the shared care arrangement after separation had progressed well and that it had not been until 16 April 2017 that the mother complained about his parenting. The father told Dr AD that in his view the children’s best interests were served by the re-establishment of a shared care arrangement. If that was not possible he told Dr AD that he was prepared to take the responsibility of sole custody. He said that he had the capacity to work part-time and to raise the children. The father told Dr AD that the children had quickly settled with him following the execution of recovery orders in early 2017. The father assertively rejected the allegations that the children had been verbally or physically abused in his care. The father observed that the children’s escalating allegations had occurred during a period when he was having no time with them. The children had made statements to him about having no electricity or gas at the former matrimonial home.
The father proposed to Dr AD that the children be placed in his primary care. He would be able to attend to their needs full-time each Monday, Tuesday and Wednesday. He would be able to take them to school on Thursday and Friday and they would be collected from school by their paternal uncle while the father was at work. The father was supportive of the children having regular day only contact with the mother but he was concerned that she may not return them to his care given previous experience. He noted that the children had adjusted well to his care in the short term during their previous recovery with police support in June 2017. However he acknowledged that this had only worked for a few days. The father identified the mother as “exuberant, impulsive and moody.” He said that she had been diagnosed with postnatal depression following R’s birth. The father conceded that he had inappropriately prescribed medication for the mother. At one stage the father considered that the mother was suffering from bipolar affective disorder however when he saw Dr AD he no longer held by that diagnosis. The father’s management of the wife’s mental health had resulted in a complaint to the medical board. I gather that the father accepts that it was inappropriate for him to treat his wife.
Initially the mother attended at Dr AD’s rooms without an independent interpreter. The mother said that the parents’ problems had dated back to 2012. She told Dr AD that she had agreed to a 50-50 shared care arrangement and had been compliant with that arrangement. The mother said that the father had complained about her to her GP and to a psychologist, Dr BN to the effect that she was a bad mother, a smoker and did not care about the children. He had pressed R to say bad things about her and had taught R to be a liar. The mother alleged that the father left R without food and water in his room for a whole day, as disclosed to Dr BN. The mother said that she had not complained for six years, despite the father always hitting the children, feeding them fast food, not giving them hugs and not having a good relationship with them. She said that she had told the children to respect their father. The mother alleged that the father had repeatedly questioned the children about her activities and had referred to her as a “bitch, slut”. The mother told Dr AD that the police had often been called to her house. The police had asked R and Q about their father and had taken them by force when they did not wish to leave. As soon as they returned to his care, he slapped them again. He did not respect the children or give them hugs. He would slap them and force them. Finally the mother told Dr AD that she agreed that the children should not go again. They had consulted Ms Y, psychologist. The mother told Dr AD that she had no problem about the children returning to see their father if they were happy.
The mother told Dr AD that it was her view that R should talk nicely to his father, “without panic, stomach aches, vomiting and relax, but that this did not occur. Q was less forthcoming about his experience.” He would wet his bed at night when having contact visits. The mother told Dr AD that the children had their own rooms as R did not wish to share a bed with Q when he was wetting his bed.
Dr AD observed a delightful rapport between the three boys and their mother. R said to Dr AD “I heard that I’m going to see my dad today” Q agreed that he understood that this was the case. R told Dr AD that his mother had told him “Be happy with your Dad. He’s changed. It’s good.” However R said to Dr AD “But I know for a fact he hasn’t changed at all”.
R told Dr AD that he did not consider his father to be part of the family. When asked why R responded:
“The way that he treats me all the time. He always slaps me and [Q]. At least once a week. He always swears at us. He always makes pick up his dirty underwear which has stuff on it that I don’t really want to mention. It’s not only that, there’s way more. His house, it’s so dirty, I always get allergies. It’s hard to breathe in it, but when I’m at my Mum’s house, I can actually breathe. And he always, always says bad things about my Mum. And every day, my Mum says to go to visit my Dad but she doesn’t know what it’s like living with him. In front of people, he’ll always be the biggest actor. He’ll hug me but when we go home, he’ll always do something bad to us. He’s the biggest liar I know. And every time I look at him, it makes me want to vomit or cause suicide.”
R told Dr AD that before the interviews his mother said “Go see your father and be happy with him”. He said that his mother had been begging him to go and see his father. R explained to Dr AD that they had stopped seeing their father and there had been two recovery orders with the police forcing them to return to their father. He explained “It just felt scary. And because of that whenever I hear police sirens, I get concerned that they’re going to come and take me by force again.” When asked if he would ever go on his own R responded “I would never feel like it”.
Q told Dr AD that he felt sad with his dad but not with his mum. When asked why Q responded to that effect he said “He always slaps me. He always shouts at me. He makes me eat on the floor. He leaves us at home alone. And once he left me at home sick. And the Police took us home to Mum because the school rang my Mum and my Mum needed to call the Police and they took me back to my Mum’s.”
Each of the children told Dr AD that they were unsure whether their mother had a boyfriend. Q said that he had met AL’s father two or three years ago. Each of them denied having any regular contact with Mr P. Q identified the mother the most worried person in the family. He said “She gets worried about us going to our Dad’s, but she always wants us to go. She always pushes us to go. And she says he’ll be kind, but I know he’ll never change. And my brother’s exactly like me.” When the boys were interviewed with their father they rejected him. The boys refused to engage with the father and spoke of any purported positive experiences with him as “just acting”. Dr AD observed that in the face of the boys’ contemptuous responses the father continued to describe their friendships, activities and interests. Dr AD commented to the boys about their disrespectful manner. Both boys said that they did not care. R added “I can’t be respectful to the Devil”. R stated that his father was lying by asking him about his times tables and that he was acting like a good dad when he wasn’t.” He complained that their dad would make them run around the park five times even when they were tired. R complained about being slapped. Q complained that his father’s house was full of dust. R added that he had dust allergies. R started to cry, stating, “I can hardly breathe, He makes me remember what he’s done to me. Because one slap, ruins my whole life.”
The father said that he had never slapped the boys and in unison the boys declared “Yes, you have!” The father said to the boys: “No matter what happens, I will always love you”. Q responded: “If you love us, you would leave us alone”. R added: “Maybe if you let us relax. Then we can see each other again. Not by force. When I want to. After what’s happened now, it will be a long time. Maybe in years, when I’m older and I know myself. Whenever I see you, I forget who I am. Just leave me alone.” The father responded in an empathic manner to R’s evident distress “I know it’s not easy”. Dr AD reports that after the father left R said that “he had almost died and had been unable to breathe when his father was present”. Dr AD notes that he is had not observed signs of panic or breathlessness in R. Dr AD noted that R was crying and distressed. Dr AD reports that the boys insisted that they would not be willing to see their father again. Dr AD says that the mother was then invited into the room with the boys’ younger brother and that both boys immediately smiled and played with him with the immediate evaporation of any distress. The father identified the mother to Dr AD as having a loving manner with good intentions. Dr AD asked if he had ever been critical of her and had raised questions regarding her activities with the boys. The father “acknowledged that this was possible and that his comments had been goal-directed”.

The mother told Dr AD that in addition to Mr P, she has the assistance of two girlfriends, Ms T and another friend.

The Legislation

The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in subsections 60CC(2) and 60CC(3) respectively.
The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply but if it does apply, it can be rebutted. If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time. Findings are made by reference to what is in the child’s best interests.
For the purposes of the determination of these proceedings, I will adopt the following approach:
a.set out the current arrangements;
b.set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
c.where possible and relevant, consider and make findings about matters set out in s 60CC;
d.consider and make findings about parental responsibility, including considering the presumption in s 61DA;
e.apply s 65DAA if relevant and assess the proposals in light of that provision;
f.if s 65DAA is not relevant, assess the proposals against the best interests criterion;
g.consider and make findings about living arrangements; and
h.make orders.

The Current Arrangements

At the conclusion of the hearing the boys were living with the mother and spending no time with the father.

The Parties’ Proposals

Each parent is seeking sole parental responsibility for the children and that the children live with them. The father seeks that the children spend no time with the mother for six weeks and then that she spend supervised time with the children. The father’s proposed orders include provision for the supervision arrangements to be informed by the single expert, Dr AD. The father proposes that there be a conditional restoration of some unsupervised time with the mother.
The final proposal adopted by the mother was that the children should spend time with the father provided they are comfortable in doing so and provided the time is supervised for a period.
The parties each contend that only one of them should exercise parental responsibility for the children and that the children should live with that parent and should spend supervised time with the other parent. The range of dispute on the key areas seems to be:
(a)Who should that primary parent be; and
(b)How much time the other parent should spend with the children, when that time should start and what the conditions for that time should be.
The ICL generally supports the father’s proposals.
Albeit within the range of outcomes proposed by the parties, they did not address leaving the current arrangements in place with a variation to the implementation of the father’s time with the boys. For reasons that will become apparent, in my view that concept must be explored in circumstances where there are unacceptable features of the parents’ proposals.
I have in mind an arrangement that ultimately has the children mainly living with the mother but with the father’s time commencing from school where practicable and requiring the mother to cause delivery where school is not practicable.

Section 60CC Considerations

As with some other provisions of Act, s 60CC was amended with effect from 7 June 2012 but only for new proceedings.[4] These proceedings were commenced prior to that date and as the legislation applies here, there are the following considerations:
[4] Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 - Act No. 189 of 2011. Section 45 of the amending Act provides: “The amendments made by items 1 to 8, 11, 13, 17 to 21, 30 to 34, 37, 38 and 40 to 43 of this Schedule apply in relation to proceedings instituted on or after the commencement.”

Primary considerations:

(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents

A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[5] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[5]McCall & Clark (2009) FLC 93-405
The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[6]
[6]Champness & Hanson (2009) FLC 93-407
Ultimately, each of the parents proposes that the children spend time with the other parent, albeit on certain conditions. Given the extreme criticisms that each parents makes against the other, that suggests that they each believe that the relationships between the children and each of their parents are important, significant and valuable to the children. In my view those are meaningful relationships.

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

‘Abuse’ and ‘family violence’ are defined terms. The definitions were changed as of 7 June 2012 but, again, only for new proceedings. As the legislation related to these proceedings s 4 of the Act included the following definitions:
"abuse", in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.
"family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Dr AD reported that R had the following reaction when asked about his father:
[R] shared his family portrait of himself, [Q] and mother. His father was crossed out. He explained, “And I don’t consider my Dad as family”. When asked why, [R] responded, “The way that he treats me all the time. He always slaps me and [Q]. At least once a week. He always swears at us. He always makes us pick up his dirty underwear which has stuff on it that I don’t really want to mention. It’s not only that, there’s way more. His house, it’s so dirty, I always get allergies. It’s hard to breathe in it, but when I’m at my Mum’s house, I can actually breathe. And he always, always says bad things about my Mum. And every day, my Mum says to go visit my Dad but she doesn’t know what it’s like living with him…And every time I look at him, it makes me want to vomit or cause suicide.”
When asked about this, [R] responded, “It’s the same thing if I had to live with him again. I’d already have caused suicide. If I had to live with him again. Because that’s just how bad it is living with him. I’d kill myself. Like, I’d stab myself or something.”
[R] had never acted in a suicidal manner but disclosed suicidal ideation, “when I’m living with him, yes. Like getting a big cricket bat and smashing it to my head”…
... “And he calls me abnormal. And when he calls me abnormal, I feel like I actually am. He shouts at me that I am. For the past few months, when I look at the clouds, I feel sad, and depressed.”[7]
[7] Report of Dr AD dated 28 March 2018 paragraphs 62-65.
Dr AD reported the following interaction when Q was interviewed:
When asked about his Dad, [Q] responded, “He always slaps me and he twice took us by force. And the first time, he pushed me in the chair and I did nothing. And he always makes us sit on the floor like dogs. And sometimes, my Dad, when he has a shower, he makes us put his underwear in the washing when it has number two on it.”
…
He identified an angry face as “mad”. He felt this way “when I’m with my Dad. When he hits me, I really want to hit him back”.[8]
[8] Report of Dr AD dated 28 March 2018 at paragraphs 85 and 91.
Dr AD gave the following assessment of whether the children were exposed to risk of him at page 26 of his report of 28 March 2018:
190.The children were not identified to be exposed to risk of physical harm from being subjected to abuse, neglect, family violence or sexual abuse in either household. They had, however, experienced psychological and emotional harm from their exposure to the enduring parental conflict. [R] had been exposed to both parents’ allegations and now strongly identified with his mother and berated his father for his lack of financial support. Both boys alleged that they had been repeatedly slapped and humiliated by their father. It could not be excluded that physical discipline had occurred. The father assertively denied that this was the case. There was no objective evidence of this. The boys had made many statements that were objectively untrue which cast doubt on their disclosures. Similarly, the mother’s allegations were called into question given the unreliability in her account.
191.It was probable that the father had questioned the children about their mother’s actions as alleged. The report writer observed the father to quiz [R] about their mother’s presence at his Year 6 graduation to prove that they were lying. He asserted that he had photographic evidence that she was not present. The mother later provided photographic evidence of photos and videos of [R] on the day, receiving his award at graduation, including a photo of her with [R], consistent with their account. Such disputes should be regarded as a source of psychological harm fuelling the boys’ hostility and resentment towards their father.
Dr AD made the following assessment in relation to R’s threat of suicide at paragraph 194 of his report:
His threat to “cause suicide” if forced was not viewed as credible. The risk should be regarded as low. This was not indicative of depression.
Under cross-examination Dr AD gave evidence about the inconsistencies between his observations of the boys with the father and the presentation that would be expected if they had been exposed to the violent and abusive behaviour alleged against the father. Dr AD said words to the effect that if the boys had been subjected to the extreme physical violence that they were alleged to have been exposed to, in a consistent manner and in the absence of any appropriate care as alleged by the boys and the mother he would not expect to have seen the interactions that he observed between them. Dr AD said that he would have expected to see the boys being distressed and avoidant, anxious and traumatised rather than being openly defiant and contemptuous with their father. According to Dr AD the observations he made involved interactions one commonly sees when children are alienated from a parent and they have not been exposed to traumatic circumstances as alleged. Dr AD noted that the same observations were made by Ms Y when she saw the children and the observations of other parties, including the school principal, Ms BP. Dr AD said that those observations and the reports contained in the supporting affidavits relied on in the father’s case are consistent with his clinical impression that the boys are not fearful. Indeed Dr AD observed R in particular acting in a highly provocative manner, there was no evidence of him averting his gaze, being frozen, distressed or being under the thumb of an imposing father.
The children have been exposed to neglect while in the mother’s care. There have been various versions of the mother’s narrative about the interruption of utilities connected to the Suburb J property. It was the mother’s evidence in cross-examination that the house had no electricity for one month during 2016. However, she also said that the children were not in the home when there was no electricity. She said that when the children were home she switched on the electricity. The mother said that although there were threats to disconnect the gas, it remained connected to the house throughout the year. The gas provider confirms that gas was connected to the property from 30 July 2015 to 26 July 2017[9]. On 15 December 2016 the father wrote to BK College and informed the school among other things that during 2016 the boys had been living in a home that did not have electricity or water.
[9] Exhibit 13
I will refer to this issue again, later in these reasons.

Additional considerations

(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

It is common ground that the children have strongly expressed their wish not to spend time with their father. Although the boys lived in a shared care arrangement between their parents since 2012, they now resist spending time with their father. It appears that those expressions commenced in about 2016 and have been consistent since that time.
On the mother’s case, since April 2017 the boys resisted her repeated entreaty that they spend time with their father. The mother says that she pressed the children to spend time with their father, despite their strongly expressed wishes. The NSW police have attended at the point of changeover on several occasions and two recovery orders have issued. Even when the mother was not present at handover, as occurred on 5 and 23 June 2017 there have been problems in having the boys go with their father. On 5 June 2017 the police arranged to execute the recovery order at the boys’ school. R told the police that his mother had said that she was going to appeal against the orders and that he was not to leave the school until she arrived. The boys nevertheless went with the father. On 23 June 2017, the boys were delivered to the Court by the mother but even with the efforts of senior Family Consultants it took a significant period to cause the boys and particularly, R to leave the Court premises for a weekend with the father and Mr U. R was then 11 years of age and Q had just turned eight.
The boys saw Ms Y, a clinical psychologist, in 2017. She told Dr AD that her attempt to reintroduce contact with the father using family friends had failed as R had a falling out with the friend and refused to attend the planned visits. She told Dr AD that the children repeatedly expressed their resistance to any contact with their father. They both reported exposure to physical and emotional abuse. She said that R stated that he would run away or kill himself should contact be forced against his will. Given the degree of resistance, Ms Ms Y felt unable to insist that contact should occur.
Dr AD made the following assessment in his report of 28 March 2018 at page 26:
193.[R] was particularly vocal in expressing his hostility towards his father. There was a surprising degree of consistency between the statements of [R], his brother and their mother. [R] repeated his accusations in his father’s presence and became increasingly strident when gently challenged by him. [R] stated that he was a victim of physical and emotional abuse, having been repeatedly slapped and humiliated by his father. He denied that he had any positive experiences in his father’s care and went on to complain about his lack of financial support. [R’s] understanding of the family’s financial arrangements was indicative of exposure to his mother’s concerns. She denied that this had been discussed but stated that [R] had been exposed to discussions. There was no doubt that [R’s] views had been strongly influenced by his mother’s experience and communication. His manner and statements were indicative of this and suggestive of coaching. This had been reinforced in interviews, most recently with [Ms Y], where he had expressed similar views.
194.[R] was strident in his opposition to any contact with his father. He stated that his mother had encouraged him to have contact but that he was unwilling to comply. His threat to “cause suicide” if forced was not viewed as credible. The risk should be regarded as low. This was not indicative of depression. Importantly, the inconsistency in his behaviour had been observed by the school principal in 2017 following the recovery executed by his father.
195.[Q’s] presentation was reflective of that of his older brother. He made disclosures of emotional and physical abuse perpetrated by his father. Neither of the boys could recall any positive experiences with their father, despite photographic evidence to the contrary. They disputed their father’s account of events. [Q] repeatedly echoed his older brother’s words. He had been strongly influenced in his views by [R].
196.Although [R] is aged 12, his views were strongly influenced by his mother. This was also the case for [Q]. The boys were adamant that they had been slapped by the father, which he denied. Their affect (emotional responsiveness) and attitude to their father was one of contempt, rather than indicative of fear or trauma. Given these circumstances limited weight should be given to their wishes.
Great care must be taken when not giving significant weight to, if not acting on, the consistent, strongly expressed wishes of a mature child. Importantly, there could be no greater betrayal than for a soundly based cry for help to be ignored and for a child to be forced into the very circumstance about which he or she has justifiably complained. That said, the boys’ expressed views have only been consistently against the father since 2016. There is no independent evidence supporting a finding about conduct by the father that would justify the strongly expressed views of the boys. I can infer that the mother felt the same on the many occasions when she says she pressed the boys to spend time with their father. Although Dr AD allowed that there is a risk that the father’s behaviour about and to the children is as the mother alleges, he says that it is not a strong risk. Dr AD did not resile from that opinion.

(3)(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);

The importance of the relationships of the children with each of their parents is confirmed above.
Dr AD reported that when the mother, R, Q and AL attended the assessment “[a] delightful rapport was observed between the three boys and their mother”.[10]
[10] Report of Dr AD dated 28 March 2018 at paragraph 53.

On page 27 of his report Dr AD reported on the nature of the children’s relationship with each of their parents:
198.A loving and intimate relationship was observed between the children and their mother. She was observed to be attuned to their emotional needs. They delighted in their interactions with each other. This was in stark contrast with the distance between the boys and their father. The father was observed to be welcoming and interested in the boys’ experience. He exhibited a detailed understanding of their life experience and was motivated to re-establish a close relationship. This relationship had reportedly continued post-separation in the context of shared care. With the escalation of conflict between parties, as identified in the extended adversarial Family Court proceedings, the children had become strongly aligned with their mother and alienated from their father. This had been a distressing and frustrating experience for the father as he felt powerless to confront this. The boys experienced him to have higher expectations and to be more performance orientated than their mother. This had served to amplify their perception of him as a critical figure. Their disclosure that he had repeatedly slapped and criticised them was dismissed by the father. This would have undermined their relationship should this have occurred.
It is an understatement to say that there has been a deterioration in the boys’ relationships with their father. On 17 July 2012 and again on 17 September 2012 orders were made in terms agreed between the parents for the father to have time with the boys for a number of days each fortnight, overnight and unsupervised. Those arrangements remained in place and were adhered to for four years.
As is referred to in the father’s affidavit sworn 24 May 2017 (exhibit 17) at paragraph 212 of the mother’s affidavit sworn 13 July 2012 she deposed: “I would never suggest that Mr A Masih is not an attentive and nurturing father. I know he loves his children and enjoys spending time with them.” Later in that affidavit at paragraph 259 the mother deposed[11] that: “I agree that Mr A Masih loves Q and R and that he is also patient with them.”
[11] Exhibit 14
As to other relevant relationships, Dr AD made the following observations about the relationship between R, Q and AL at page 27 of his report:
199.A close relationship was observed between the three siblings. [Q] echoed his older brother’s statements. The boys were observed to enjoy their relationship with each other. Numerous playful interactions were observed between the older boys and their baby brother.
Dr AD observed in his report that when the children attended the assessment with their younger brother, AL, “[d]elightful interactions were observed between the two boys and their baby brother”.[12]
[12] Report of Dr AD dated 28 March 2018 at paragraph 60.
Dr AD made the following observations in relation to the children’s relationship with Mr P at page 27 of his report:
200.The mother, the boys and [Mr P], all denied that there had been any significant contact between the children and [Mr P]. This was considered surprising, given that he is the father of [AL], the mother’s long-term boyfriend and consistent presence at the Family Court. He had provided the mother with a motor vehicle and ongoing financial support. [Mr P] declined to be interviewed but was not observed together with the boys as he was reportedly living and working in Melbourne.
As is referred to elsewhere in these reasons, the evidence about the extent of the involvement and therefore the importance of Mr P in the lives of the boys is bizarre. It is the mother’s evidence that Mr P does not attend the Suburb J property and that he spends time in a park with AL about every six weeks. The mother would have it that Mr P has virtually no involvement with the children whereas the father makes the opposite case. In this regard each of the parents has an argument that could favour the parenting case pressed by the other parent.
In the face of the mother’s evidence, given the refusal of Mr P to either give evidence in the mother’s parenting case or to be interviewed by Dr AD and because the father is not able to give first hand evidence on the issue, I find that there is no significant relationship between the subject children and Mr P.

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

On the face of it, each of the parents has been willing to facilitate and encourage the relationships between the children and the other parent, at least for a considerable period after separation. Indeed they succeeded in doing so.
It is alleged by the father that the mother has denigrated him to and in the presence of the children. Even if that is so, there is no evidence there was an estrangement until five years after the parties’ physical separation. Until April 2017, the shared care arrangement of the 2012 orders was largely effective and the boys spent regular time with their father.
As was revealed in her cross-examination, there is a level of inconsistency between the mother’s evidence about encouraging R to spend time with his father and her asserted belief that the father physically abuses him and that R is at risk of self-harm. A possible explanation is that the mother did not really believe those allegations nor that there was a real risk to the children. If that was the case, it would be concerning that the mother would continue to assert such allegations, and possibly in the presence of the children.
However, as to the future, by the orders they now respectively seek, neither parent is willing to facilitate and encourage, a close and continuing, unrestricted relationship between the children and the other parent, at least in the short term. In each case the parties seek to restrict the time that the boys spend with the other parent by requiring supervision of that time for significant periods thereafter. On the father’s application there would be no time with the mother for a period of six weeks after the orders are made. Under the mother’s proposal, there would be no time unless the boys are comfortable about spending time with their father.

(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

In the context of these proceedings, this is a very important criterion. The orders proposed by the father would greatly interfere with what have been very close relationships between the boys, their primary care giver and their baby brother. Under those proposed orders there would be no time or communication for a period of six weeks after the orders were made and thereafter greatly reduced time compared to the uninterrupted access they have had to the mother throughout their lives. Dr AD predicted that in those circumstances, the boys would initially react in a distressed and oppositional manner. Their experience of the loss of daily contact with their mother will be amplified by their separation from their brother. Such interference would also occur if the orders proposed by the ICL were imposed.
Dr AD notes that if the father and the school principal are correct, the boys have the capacity to adapt to such a change. Dr AD does not offer that opinion himself and the views of the father and the school principal do not have the same weight as those of the single expert on such a critical issue. Dr AD also observes that if the mother has been acting in a manipulative way, the boys’ moral reasoning and personality development will be assisted by more limited exposure to her behaviour.
Until April 2017 the father cared for the boys for several days each week. To that extent, the orders he proposes would restore something that was at least partly in place until that time. There is no doubt that the father and more importantly, R and Q, would need support with the very significantly changed arrangements that the father proposes. The father has not had any significant time with the boys since April 2017. The father’s support has been through friends and family. The mother’s second cousin is Ms AF. I am not sure about the earlier relationship between mother and Ms AF but as at the time of the hearing, they were estranged. Ms AF and her husband gave evidence that they would provide some support to the father. They have their own commitments but they nevertheless offered support. There is no probative evidence about the relationships between the boys and Ms AF and her husband. The father’s brother indicated that he would be both available and willing to assist the father with the boys. Like the father, he is engaged in his medical practice for no more than three days a week. I gather that he does not have commitments within his own family to any child under 18 years of age[13]. Again, the extent of his relationship with the boys is not revealed in the evidence. Mr U has already assisted the father with the boys, including after one of the recovery orders in 2017. Aspects of that support have been available to the father since April 2017 and whatever might have been the earlier situation, the boys have subsequently disavowed having a positive relationship with him. All of that support and the father’s own skills and longstanding relationship with the boys has not been sufficient to facilitate any workable relationship between him and the boys since April 2017.
[13] I assume from the father’s oral evidence that his brother has one adult son.
I am concerned that harm will be done to the boys by the loss of all contact with their primary care giver, even for only six weeks and that the father will not able to adequately provide what they need by way of parenting.
The mother’s orders may not involve any change in the arrangements currently in place for the boys. The mother’s proposal is couched in terms which call for R and Q to be comfortable about spending time with the father, as a condition precedent to at least some of those arrangements. The proposal is uncertain and unenforceable. At least in the short term her proposal is likely to involve a restriction, if not a continued suspension of the relationships between the boys, their father and their paternal family. In light of the unusual arrangement between the mother and Mr P, there is no suggestion in the mother’s case that he will be significantly involved with them. As I have indicated, paradoxically, the father contends that Mr P has had a regular involvement with the boys while the mother and Mr P do not give that evidence. Apart from a conditional involvement with the father, the mother does not propose any male figures in the boys’ lives beyond those provided through their school and any extra curricula activities. The mother does not give detailed evidence of any other personal support available to her with the boys although there is reference in the evidence to assistance from the parents of other children at the boys’ school.
Apart from the uncertainty caused by the condition attached to the mother’s proposed orders, the obvious concern about her proposal is that it offers no guarantee and little hope of a restoration of the relationship between the boys and their father. There could be significant harm done to the children if they continue to be denied that relationship.
In my view, there is the potential for significantly adverse effects with each parent’s proposal.

(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

As I have said above, the mother’s proposal is not an appropriate one. It would be unusual to express orders to leave a parenting arrangement to be based on the comfort level of the children. That might be done with older children where the practical viability of Court orders may become somewhat academic but it would render the orders, virtually unenforceable.
Otherwise the only practical issues of relevance is one of cost. Each of the parents proposes that there be a level of supervision of the other parent with the children. There will be some expense associated with that supervision. I gather that the parties have worn out their welcome at the family relationship centre. It is also common ground that there needs to be some social science support for the children and the parents. That will involve some cost. There is no evidence before me as to the likely cost of those services. I anticipate that the mother would say that she cannot make significant contributions to those costs. The mother was receiving financial support from Mr P.
The financial position of the father is apparently complicated. As at the date of the hearing he was working as a health professional on three days a week. His company received gross income for that work of $45,000 per annum. At an earlier time, the father earned $250,000 per annum. The father receives about $35,000 per annum in rent. He spends $6,000 per annum on school fees. He had the ability to call in, loans to the value of more than $1,200,000. He owes money to his brother or his brother’s company. As at the time of the hearing the father had spent more than $400,000 in legal fees. The father is in a stronger financial position than the mother.

(3)(f) the capacity of:

(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);

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

The parents have not been able to insulate the children from the paucity of their relationship with each other. There remains a risk that the boys’ continued exposure to family conflict will entrench them in their binary views of each parent.
The apparent estrangement of the boys from their father seems to be out of proportion to the circumstances of his care of them. Indeed, the fact of the mother’s asserted support for the relationship between the boys and the father and for them to spend time with him is inconsistent with her having any serious fears for them in his care. The final order sought by the mother is inconsistent with her holding such fears. A concerned parent would not leave to the boys themselves, the decision about spending time with the father. Therefore it is likely that the mother has not fully supported the relationships between the boys and their father.
Unfortunately, the mother’s position is obscured by her lack of candour. On her own case she is well educated, having a tertiary qualification. Notwithstanding that English is not her first language, the inconsistencies in her evidence lead to no conclusion but that she has not been entirely truthful to the Court.
It is the mother’s case that her sexual relationship with Mr P did not commence until 2015. Mr P gave evidence in the financial proceedings, consistent with that proposition. In oral evidence the mother allowed that their relationship might have commenced in 2014. The records of health professionals who the mother consulted in 2013 reveal that she told them that she was having unprotected sex and was trying to conceive. It is likely that the mother was seeking to become pregnant in that year. The mother denies having sexual relations with anyone in that year. The mother insisted that she consulted the health professionals in relation to “hormonal issues”. The most likely reason for health professionals to have made the notes they did, is that they were told those things by the mother. I emphasise that the question of the mother’s sexual interactions or relationships is not relevant to the issues in these proceedings. However, it is relevant to her credit as a witness. Even then, her credit as a witness has no direct bearing on her parenting capacity. However, her credit is of importance in respect of findings of fact about relevant issues that fall to be determined without the benefit of any substantial and independent corroboration.
Arrangements were made for the boys to receive orthodontic treatment at BV Dental Centre. In the period after April 2017, when the boys spent virtually no time in the care of the father, the mother did not facilitate that treatment. When asked about that she said that no one rang her. That orthodontic treatment aside, the mother did not cause the boys to have a dental check-up in the period after April 2017. When asked about that I understood her to say that she was very busy with the proceedings and other things and could not attend to that issue. I understood the mother to concede during cross-examination that the boys should have had a dental check-up in that period. The mother was asked if she thought the father would be able to attend to that issue if the boys live with him and she agreed that he would.
The father made arrangements for R to be interviewed for a placement at a particular high school. The mother agreed that she cancelled that interview. She was asked why that was done and said that she did not agree with the father’s choice of school and that he had not consulted her in that regard. The mother agreed that she had received a letter through her solicitors from the solicitors for the father proposing that the interview proceed so as to enable the child to attend if that was ultimately ordered or agreed to.
It has been asserted by the mother that the father caused gas, electricity and water to be disconnected from the Suburb J property. It is conceded by the father that he ceased to pay some of the outgoings on the Suburb J property in September 2015, when he came to understand that the mother was receiving financial support from Mr P and that she was pregnant to him. It is the mother’s evidence that the property was never without electricity because when the electricity authority turned off the power at the switchboard she simply turned it back on again. As I understand it, however, the mother contends that the property was without water for a period of three months and without gas for one month. There is in evidence a letter from the gas provider (exhibit 13) which asserts that the property was never without gas. I accept that evidence over the mother’s assertion on this issue. It is the evidence of the father that he was told something by one of the boys to the effect that they were having showers at a McDonald’s restaurant.
If it is true that the boys were living at the Suburb J home without the benefit of one or more utility, whether it was water, gas and/or electricity, that reflects very badly on both parents and they should be ashamed of themselves. Rather than point scoring, at least one of these intelligent adults could have resolved the issue. They could have paid the necessary bills or caused the utility provider to allow a necessary period of grace and/or in proceedings that have been on foot for over five years, asked the Court to compel the other party to secure the missing utility or, if necessary, to move the children to accommodation where utilities were available. Even if, as may have been the case, the utilities were available at all times but either or both of the children were allowed to feel that they were living for a period in the Suburb J home without one or more of those utilities, that reflects very badly on the parent who caused them to have that belief – in this case, that would be the mother.
It is likely that the father lacks insight into his effect on the mental health of the mother and of each of the children. He was asked about that during his cross-examination by the mother’s counsel and he said that he does not believe that he has contributed to any of the mother’s emotional problems or to the strange and unusual behaviours exhibited by the boys. I accept that there may be circumstances in which one parent is entirely blameless in a family breakdown that is damaging to the psychological health of the other parent and the children. However, I do not believe that this is such a case.

Dr AD referred to the balance of care and control displayed by parents and he suggested that whereas the mother’s strengths lay in her love and support for the children the father was not as effective in displaying his affection and empathy for the boys. That could explain how a significant rift could have arisen between the father and the boys, despite him having shared their time for over five years after the parents separated.
The father referred to being angry on occasions about issues that arose in his practice. Despite the asserted closeness of the members of the paternal family, there was a substantial dispute between the father and his parents and his brother about financial matters in 1999. The police were called and Mr B Masih sought an AVO against his brother, the father. That reflects poorly on the father.
The father paid the fees of a private enquiry agent retained by Ms AF to conduct surveillance on the mother. I understand that, what amounted to over 22 hours of surveillance, was intended to support the father’s case in AVO proceedings against him. In my view, that reflects poorly on the father.
The father wrote to BK College in 2016 to complain that the boys were living in a home without some utilities. In breach of the ethics of his profession, the father treated the wife and prescribed medication for her mental health. Those matters reflect poorly on the father. They also starkly demonstrate the isolation of the mother in Australia and the extent to which she was dependant on the father.
The father insisted on receiving the original set of school reports about the boys rather than a copy because he pays the school fees. The father insisted that the mother pay for a $8 book. In my view there is support for the observation made by Dr AD suggesting that the father’s parenting strengths might lie in control rather than care. Dr AD referred to the father having a narcissistic style to his presentation.
The most glaring weakness in the capacities of the parents is their inability to maintain a respectful if not cooperative relationship with each other, for the sake of the children or to foster a strong and stable relationship between the boys and the father.

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

There is no direct evidence about these matters. The hearing was conducted during Ramadan and I was told some things from which I understood that the parties were affected by daytime fasting. On 1 June 2018 I was told that the mother had lunch for reasons to do with her diabetes. There was evidence that following the execution of a recovery order in 2017 the father and his friend took the boys to a mosque.
The boys attend BK College. The homework material annexed to the mother’s affidavit makes reference to Islamic values and observances that are apparently followed at the school and are required to be practised at home. If not a religious school, it is at least, sympathetic to Islamic values and teachings.
I do not recall any other evidence about the parents’ intentions for religious observance for the children.

(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

This criterion does not apply.

(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

I have no doubt that each of the parents loves each of the boys and wants the best for them. The mother made a deposition to that effect about the father in a 2012 affidavit and there is no suggestion that the mother is any less committed to her older sons.
Unfortunately, neither parent has been able to insulate the children from the conflict between them. At times, one of the boys has taken up the arguments advanced on behalf of one of the parents either with the other parent or elsewhere.
The parents obviously have a great deal to offer the children. They managed to implement a shared care arrangement for five years after they physically separated but since April 2017, the father’s part of that arrangement has not occurred.

(3)(j) any family violence involving the child or a member of the child's family;

There are allegations that the father has struck the boys. The only direct evidence is that of the mother to the effect that in 2012 one of the boys was struck by the father with a ruler. Otherwise the allegations rely on things allegedly said by the boys to the mother or to others. There is no independent corroboration of the allegations. Happily, Dr AD did not observe in the boys’ behaviour, any indication that their relationships with their father have been characterised or seriously affected by violence. For example, they were not cowed or afraid of the father when they were seen with him by Dr AD. Indeed, they challenged him during the interviews.
No finding can be made that violence occurred in those circumstances. There remains a risk that the father was violent to the mother as she asserts and that he has been violent to the boys. In the circumstances of the mother’s lack of credit, those risks are low.
The mother’s proposed orders are inconsistent with her having genuine concerns about the boys’ safety with their father. Those orders would leave it to the boys to monitor their own safety with the father. That is entirely illogical unless the presenting risks are not significant.

(3)(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or

(ii) the making of the order was contested by a person;

I was told of no family violence order.

(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

The proposals of the father and the ICL involve a change of primary residence for the boys. After a complete separation of the boys from the mother for six weeks they propose a conditional and gradual restoration of time, leading to them having alternate weekends with her. The mother’s proposal would leave the fact and extent of the father’s time to the boys. In either instance, there would be scope for further proceedings. Not that it is proposed but it would be less likely to lead to further proceedings if one parent is shut out of the boys’ lives indefinitely.
The important aim is to attempt to restore a situation whereby the boys can have a fulfilling relationship with each of their parents. At the date of the hearing that had not been possible for more than 12 months and the boys are of an age at which they may be increasingly more difficult to influence.
Although there will be the potential for further proceedings, the aim of restoring a workable relationship with the father is worth pursuing.

(3)(m) any other fact or circumstance that the court thinks is relevant.

In my view there are unacceptable aspects of the two main proposals.
The mother’s proposal may be disingenuous but in any event it is unenforceable and offers no likelihood of improving the situation for the boys.
The father’s proposal assumes that he will be able to establish and maintain relationships with the boys that will sufficiently meet their needs. The rationale for the orders proposed by the father and the ICL is presumably that there can be no restoration of the father’s relationship with the boys if they have any contact or communication with their mother for a period. Dr AD opines that the father will need assistance in supporting the boys through the implementation of the regime he proposes. Importantly Dr AD says that they will experience the loss of their very close connection with their mother. The theory would presumably be that once the father’s time is restored, he will be able to maintain a workable and beneficial relationship with his sons, provided the mother does not spend more time with them than each alternate weekend. Based on the past, I am not confident about the father’s capacity to achieve that. The father had the shared care of the boys for five years after separation. Unless there has been some progress since the trial, the father has not been able to win the boys over since April 2017. On occasions the father had time with the boys pursuant to orders in the nature of recovery orders and during that time, the boys were not in the presence of their mother. Nevertheless the problem of them rejecting the father was repeated after they returned to the mother.
I am concerned that harm will be done to the boys by removing them from their mother and that the father will not be able to take up the parenting load. I am also concerned that the close and loving connection the boys have with their mother will be denied to them and that despite loving them and being able to provide for their physical needs, the father will not be able to provide enough of what the mother gives the boys as their primary care giver. That could leave the boys in a very vulnerable and unsatisfactory position.
The other thing to note is that the boys are getting older. They are now 13 and nine. The children would benefit from having both parents in their lives and what they need/can get from those relationships will change over time. However, I am not prepared to sanction the loss of one of those relationships and the parties’ proposals run that risk.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
If no order is made in respect of parental responsibility then the position as to the parents of a child is as follows:
SECT 61C
Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution of parental responsibility for a child.
An order for shared parental responsibility has the following effect:
SECT 65DAC
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Presumably that must also apply to equal shared parental responsibility.

Discussion

In the context of this case, s 61DA requires that I apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them unless there are reasonable grounds to believe that the father or the mother have abused them or engaged in family violence. Happily, no such finding is possible. Therefore the presumption does apply.
Where the presumption applies it may be rebutted. The parents have not been able to effectively communicate with each other. They have been involved in litigation about parenting and financial matters and about family violence. It is not practicable for the parents to cooperate in decision making about the children. The presumption is rebutted.
It is logical that the parent with whom the children mostly live should have parental responsibility. As I will explain, that will be the mother. I will order that the mother have sole parental responsibility but will require her to consult and report with and to the father, where that is practicable.

Conclusion

The presumption that the parents having equal shared parental responsibility would be in the best interests of the children does apply but it is rebutted. The proper order is one that places parental responsibility with the mother.

Living Arrangements

In that the Court will not make an order that the parties have equal shared parental responsibility, it is not necessary to consider any particular living arrangements.
In my view neither of the proposals would be in the boys’ interests. The father’s and ICL’s proposal removes the boys from their primary care giver which will distress them. That distress may be seen as acceptable if there is ultimately a resumption of the father’s time with the boys, sufficient practical and emotional care will be provided to them in the future and no long term harm is done in the process. However, I am not confident that those things will be achieved.
The mother’s proposal leaves the issue to the boys and that is not satisfactory either.
There are no guarantees with any pattern of living arrangement but I do not consider the parents’ or ICL’s proposals to be acceptable. I am not prepared to take the more draconian step of excluding one parent or the other. It is my concern that the parents’ proposals will amount to such an outcome or will lead to that outcome.
I am inclined to a version of the mother’s proposal which leaves the responsibility squarely with the parents to restore what they had in place but that has been denied to the children for nearly three years.
The delay in delivering judgment in these proceedings may have allowed tensions to subside. The parties will have an opportunity to comment on the machinery provisions of the orders. Of course they could also agree about more substantive changes. However, I will specify an arrangement that commences with a restoration of day only time for a short period and then that resumes overnight time on alternate weekends with time at night in the intervening week. Ultimately the boys should spend one half of the school holidays with their father.
The least risky and least artificial handover would be from school. In that way the mother can be restrained from being present or otherwise interfering with the father’s collection of the boys. If that is not workable for some reason then a supervised venue or agency may be required, with the mother to deliver the children to that venue or agency and the father to collect at the commencement of each occasion. The father will return the boys to the mother or to school at the conclusion thereof, as the case may be.
I will ask the ICL to explain the arrangements to the boys and the obligations that are imposed on the parents by the orders.

Conclusion

The boys have been left in a very unsatisfactory position. It is generally in the best interests of children, provided they are safe, to have a meaningful relationship with both parents. That should be available to R and Q. The parents’ proposals are not satisfactory and I will require them to restore what was a longstanding shared care arrangement put in place after separation.
Leave will be granted to the parties to bring the matter back before me within 28 days, or such further time on which the parties may agree, in relation to the wording of the orders.

The costs of the independent children’s lawyer

Through his counsel the ICL sought that each of the parties contribute one half of the costs and disbursements incurred by him. The total of his costs is $16,823.92 and the ICL seeks that each of the parties pay one half of those costs, amounting to $8,411.96.
Through his counsel the father agreed to pay one half of the costs of the ICL. The mother opposes an order that she pay her share of those costs.
The application is entirely meritorious. Indeed, there was no argument on behalf the mother that the ICL was not entitled to his costs or that the quantum of costs was excessive. The argument raised in the mother’s case is that she does not currently have the funds to meet the payment and because her income is made up of Centrelink benefits, because of the legal costs already incurred by her and because the parties’ proceedings for property settlement have not yet concluded, she does not know whether she will ever be able to afford to contribute to those costs. I am not in a position to make a finding about the mother’s financial circumstances.
I will order that the father pay one half of the costs of the ICL and will make no other order in respect of those costs.

I certify that the preceding one hundred and ninety-six (196) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 16 April 2019.

Associate:

Date: 16 April 2019