MASRI & MASRI
[2019] FCCA 3223
•29 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MASRI & MASRI | [2019] FCCA 3223 |
| Catchwords: FAMILY LAW – Interim Parenting Decision. |
| Legislation: Family Law Act 1975 (Cth) |
| Cases cited: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 |
| Applicant: | MS MASRI |
| Respondent: | MR MASRI |
| File Number: | PAC 5617 of 2014 |
| Judgment of: | Judge Myers |
| Hearing date: | 28 August 2019 |
| Date of Last Submission: | 28 August 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 29 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Judge |
| Solicitors for the Applicant: | Ms Hayman |
| Counsel for the Respondent: | Ms Dart |
| Solicitors for the Respondent: | Ms Doumitt |
ORDERS
I therefore make the following orders pending further order:
All previous parenting orders be discharged.
Pending further order the children E, male, born in 2013 and D, female, born in 2011 live with the father.
Pending further order the children spend time with the mother supervised by a professional supervision service run by a professional operator or otherwise non-government organisation as nominated by her on such times and dates as they make available. The parties are to do all acts and things to enrol the children with the supervision service nominated by the mother. Each party is to equally share the cost of the supervision service.
The parties be prohibited by injunction from discussing the proceeding with the children or discussing the disclosures the children have made to the family consultant and/or Mr P.
Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the child/ren E, male, born in 2013 and D, female, born in 2011 and the Legal Aid Commission of New South Wales is requested to provide such representation. The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.
Pending further order the mother and any of her agents be prevented by injunction from further attending upon the children’s school or instructing or allowing any other person to do so.
The matter is adjourned to 2 September 2019 at 10am for directions.
The children be entitled to obtain counselling through the school counsellor. A copy of today’s orders is to be forwarded to the school principal within 24 hours of being received by the parties.
IT IS NOTED that publication of this judgment under the pseudonym Masri & Masri is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5617 of 2014
| MS MASRI |
Applicant
And
| MR MASRI |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is an interim parenting decision in the matter of Masri and Masri in relation to two children of the parties’ relationship, D, born in 2011, and E, born in 2013. By way of final orders made in the Family Court by Hannan J on 9 November 2017, the children were to live with the mother and to spend four nights a fortnight with the father. Those orders provided for the parents to equally share parental responsibility.
The court notes specific issues orders were made by Hannan J that are relevant to this dispute being orders 7, 8, 9, 16, 17 and 19, that provide as follows:
Order (7) each party is hereby restrained from physically disciplining the children and such physical discipline is deemed to include and all physical chastisement and causing the children to kneel down with their hands on their head whilst in timeout.
Each party is hereby restrained from denigrating the other or a member of the other party’s family in the hearing or presence of the children or permitting a third party to do so.
Order (16) shall inform the other in writing as soon as is practicable of any appointments with a specialist medical practitioner ….. in relation to the children and (a) each parties shall do all acts and things to ensure the other parent is provided with all reports by any such consultant, (b) each parent is permitted to attend on such consultant, such attendance or attendances, to be at the sole discretion of any such consultant.
Order (17) the parties shall do all things necessary to ensure the children attend only upon T Medical Centre, Suburb F, in respect of ongoing medical treatment, and shall comply with the reasonable recommendations of such medical practice unless in circumstances of emergency, in which case the parties shall cause the children to attend upon the emergency department of the nearest hospital.
Order (19) the parents shall each be permitted to allow the children to participate in and practice both the Orthodox and Catholic religions.
It is not disputed that the children came into the care of the father on the weekend of 9 August 2019 and that the father retained the children after that date. It is also not disputed that both parties effectively raced to file proceedings in this court, with the mother filing her application for a recovery order on 12 August and the father attempting to file his application on 13 August. The mother was first in time.
The mother seeks what is best described as a recovery order and that after the recovery order is executed, the parenting arrangement remain in accordance with the existing Family Court orders. The father, for the purposes of the determination of these proceedings, seeks that the Family Court orders be suspended and that the children live with him and spend supervised time with the mother.
The parties give detailed accounts within their affidavits as to the poor parenting relationship they maintain and as to the other parent’s motivation for the proceedings. The father deposes the mother has breached the injunctive order, prohibiting the children being physically disciplined and that over a period of some length of time the children have been struck, scratched and pinched by the mother, and also struck by the mother’s partner, Mr CC.
It is a feature in this case that the mother and her partner deny these allegations in whole. It is not disputed that the father, without the consent or knowledge with the mother, took the children to see a registered psychologist, Mr P, on the three occasions, being 17 May 2019, 14 June 2019 and 9 August 2019, as a result of what the court accepts are the concerns by the father relating to E’s antisocial behaviours at school and the mother’s care and treatment of the children, particularly with respect to physical discipline.
Filed in these proceedings is an affidavit of Mr P sworn on 20 August 2019. That affidavit that the court has read and considered essentially provides that Mr P met with the children on 17 May 2019, 14 June 2019 and 9 August 2019. Mr P deposes that on the very first session he met with Mr Masri and the children altogether simply as an introduction. Mr P suggests that no issues of concern were discussed.
Tendered in the proceedings is a copy of the notes that were prepared as a result of the interviews that took place between Mr P, the father, and the children. Those subpoenaed notes that have been tendered suggest that in fact on the first session the children did disclose issues of concern, particularly with respect to the mother physically disciplining or chastising the children.
Mr P goes on to set out that:
Prior to every session with the children, I first met with Mr Masri (in other words, the father) in the absence of the children, then I interviewed D alone and then I interviewed E on his own. This occurred at every session.
Mr P deposes that:
In preparation of the report I made all inquiries that are necessary and appropriate and to my knowledge there has not be any relevant matters omitted from the report except as otherwise specifically stated in the report.
Mr P annexes his reports and states:
I believe the facts within my knowledge that have been stated in my report are true. The opinions expressed in the report and are independent and impartial.
Mr P goes on to say that he has read and considered the expert evidence practice note referred under the Federal Circuit Court Rules, rule 15.07, and he has used his best endeavours to comply with the same. He deposes that he understands his duty to the court and he has complied with it and will continue to do so, and that he has complied with the requirements of the professional code of conduct or protocols, being the Australian Psychological Society Code of Ethics.
It appears not disputed in these proceedings that the father taking the children to see Mr P was in fact a breach of the current orders. As I said, it does not appear to be a disputed fact. In the first of the reports annexed to Mr P’ affidavit dated the first being 23 July, Mr P sets out:
I have seen Mr Masri and his two children: E, age five, and D, age eight, for two sessions, being 17.5.19 and 14.6.19 at Suburb F Medical Centre, Suburb F, Sydney.
Mr Masri was a labourer and he has been divorced from his wife for four years. He and his ex-wife have shared equal custody of the two children.
Again, when one considers the notes that have been produced by Mr P pursuant to a subpoena, that have been tendered in the proceedings, this issue is canvassed. The notes indicate that there is equal shared parental responsibility but otherwise the notes set out that the children live with the mother and spend four nights a fortnight with the father. For the purposes of the report, having regard to the notes, the court does not accept that the father misled Mr P as to the parenting arrangement, rather Mr P, when having considered his notes, has perhaps overlooked the father’s initial instructions as to the actual parenting arrangement.
Mr P goes on to set out:
Mr Masri came to see me because of his son’s concerning behaviour at school. E has been acting very aggressively, turning up chairs, hitting things, kicking and punching staff and other pupils, and as a result was suspended for a week from school, 14.6.2019. When interviewing E separately, E reported that he is often angry at school, stating, “Teachers make me angry when they tell me to do something.”
Having regard to the notes produced on subpoena from the school and tendered during the course of the proceedings, those issues are correct where E has been acting aggressively. Mr P further sets out;
E also expressed that he has scared of his mum and she screams and swears at him, hits him with spoons, locks him out of the house and threatens to leave him at a boarding school. He stated he only loves a bit. Mr Masri stated that E has been tested for ADHD and ODD and the two disorders have been ruled out by professionals. The school counsellor has also been seen
Submissions were made about whether the father had wrongly suggested whether E had been tested for ADHD or ODD. It appears to be an agreed fact in the proceedings that E had not been tested for those things. For the purpose of these proceedings and the purposes of considering the information contained within the reports, whether the child has or has not been diagnosed with those issues is of little relevance and the court gives it little weight.
When interviewing D separately Mr P sets out that D stated that mum always hits them and she never stops. Mr P reported D as stating:
She hits us a lot, smacks E on the head, scratches him and yells at him to hurry up.
D also stated to Mr P that, “Mum curses a lot.” She said her mum calls her a baby, idiot and a bitch all the time. It is reported that when D said to her mum once, “You don’t really mean that,” her mum replied, “Yes, I did.” There is a suggestion by the mother in these proceedings that these children have been coached. That is the mother’s position, where the mother denies any of the matters that have been suggested to her with respect to discipline and/or what might be described as abuse of these children. The mother simply denies it.
The mother does not deny there being some conversations or otherwise some threats made about the children being enrolled into boarding school. The mother has sought to provide an explanations respect to the issue of boarding school. The mother denies those other matters took place. Mr P further sets out:
D reported that the mum hits them in all places. When I asked specifically where, reported back, bottom, stomach, arms, sometimes head, “Hits with a spoon on the back. She won’t stop.” D reported she feels like people hate her and they don’t like. D is also concerned she has heard mum threatening to leave E at a boarding school and has witnessed E crying and getting angry after the threat. D has also stated the mother’s new partner also yells at E but she has reported no hitting. D and E both stated they fear their mother and they would prefer to stay with their father. In session, both E and D appeared to enjoy their time with their father.
Mr P suggests that both children are displaying symptoms consistent with post-traumatic stress. He suggests it is highly recommended the two children continue counselling to help them deal with difficult emotions whilst the matter is before the court. Mr P sets out that the incidents have been reported at the Department of Family Community Services and indeed the material produced on subpoena from FACS that has been tendered suggests that has taken place. A mandatory report was made.
In a further report prepared by Mr P dated 19 August 2019 he goes on to set out the following:
I’ve seen and his two children: E, age five, and D, age eight years, for three sessions, 17.5.19, 14.6.19 and 9.8.19 at Suburb F Medical Centre, Suburb F.
Mr P sets out:
During the third session on 9.8.19 I interviewed both children separately. There was no one else in the room. When I saw E and asked how he is, he said the following, “My mum just smacks me when I get naughty.” When I asked him where he was smacked, he replied, “Monday and Tuesday, smacked me.” When I asked where he was smacked and how, he replied, “Slapped me on the stomach with a metal spoon and a big metal spoon. Didn’t hurt.”
It is a feature of this disclosure and in these proceedings that E is alleged to have stated he has been smacked but also says that it did not hurt him. It is perhaps an unusual feature where the mother suggests that the children are being coached that this child said “I’ve been smacked but it didn’t hurt.” While he does not actually say “don’t worry about it,” that is the implication of his statement. Mr P further sets out:
In this session E went on to say that he is, “Scarred of mummy, half yes and half no.”
This is a little boy who does not present in Mr P’s report as somebody who is aligned against his mother where the court notes he says two things. Firstly is he says he is smacked but it does not hurt. Secondly, when asked if he is scared of his mother, he says “half yes and half no”. Mr P’s report sets out that E goes on to say;
“She hits me hard but it doesn’t hurt.”
When asking E whether his mother’s partner hits him, E answers;
“Stepdad not hit”
Mr P further sets out;
During this third session I interviewed D, there was no one else in the room. D disclosed that she brought home a drawn picture of Mr Masri’s partner and the family and her mother ripped it up stating to D, “If you do that again I will make you pack your bags and I will never see you again.”
D stated, “She’s still hitting me a lot, yells at me a lot. She hits hard, pinches,” red mark starts bleeding from being pinched by her mother. Her mother said, “I don’t care. Go find somebody else to help you.”
When asking D when the mother’s partner hits her, D stated;
“Mr CC only hits me sometimes on back with hand.” D and E both stated they fear their mother and they prefer to stay with their father.
Mr P provides an opinion, and while perhaps there could be some dispute about whether or not his report complies with the provisions in the decision in Makita’s case – the opinion expressed by Mr P is that the children are being truthful where he states:
There was good eye contact during the three sessions and the children were relaxed and not under duress.
While the court makes no findings about the correctness of that opinion, what the children suggest as having taken place is significant.
In order to assist the court in its determination of the parties’ respective applications, the court caused to be ordered an urgent child inclusive conference making orders on 15 August 2019. Interviews for the preparation of a child inclusive conference memorandum were held by family consultant Ms DD on Wednesday, 21 August 2019. A report was subsequently prepared and is dated 22 August 2019. That report forms exhibit G of the proceedings and provides:
Issues in dispute: Mr Masri seeks sole parental responsibility and the children live with him. Ms Masri seeks shared parental responsibility and the children live with her. Both parents indicate they’re unsure what to propose with regard to the children spending time with the other parent. They indicated they wished to seek further legal advice. Mr Masri said he is seeking that in the interim the children have no contact with the mother until JIRT have assessed the children.
Under the heading Family Violence, Ms DD sets out:
There have been several apprehended domestic violence orders in the past made to protect the mother from the father. There is no current ADVO.
The family consultant considers some of the historical issues that led to the ADVOs, where in the interview the parties made claims of their being family violence:
Both parents claim that the other parent is being rude and intimidating in the waiting area at the registry prior to the child inclusive conference.
Having read the memorandum, the court can find that these are parents who do not get along, perhaps cannot get along and do not want to exercise control so that they do get along.
Under the heading Child Safety and Wellbeing:
The father alleged that the mother has been hitting the children with her hand and with spoons and frequently yells and screams at the. They claim that she calls them names and tells them she does not love them and she never wanted them. The father claimed the mother has been locking the children out of the house for hours at a time. The father maintained this is the cause of E’s disruptive violent behaviour at school and E’s teacher has remarked on the improvement in E’s behaviour in the last two weeks since he has gone into the father’s care.
That criticism and conclusion is perhaps well measured out. The father’s suggestion about improved behaviour is actually the case when one looks at the material produced on subpoena from the school following the children going into the father’s care. Upon E’s return to school, notes in respect of E’s behaviour were taken by the school. They were produced on subpoena. They were tendered in the proceedings and the court will consider that issue later on in this decision.
Ms DD suggested that neither parent reported any substance abuse issues to the family consultant. The parents indicated that final orders were made by Hannan J in 2017. There was some suggestion during the interim hearing that the family consultant was unaware of these being recovery proceedings. Having read the Child Inclusive Memorandum, the court accepts the family consultant was well aware of the dispute and well aware as to why these proceedings are before the court, where the father has made a unilateral decision to retain these children.
Both parents reported to the family consultant they have had significant difficulties both pre and post the making of the final orders, in particular communicating. The mother suggests things further deteriorated after the father received a payout for a motorcycle accident. There was a submission by Counsel on behalf of the mother in her case that the father has been building a case against the mother and in circumstances where he has now come into some money, he seeks to re-litigate this matter. A further submission made by counsel for the mother was that the father is using this application as a de facto appeal. The court does not accept those submissions.
This is a matter where there have been disclosures made by the children. This matter is about more than just the father’s unhappiness. The children were interviewed by Ms DD under the heading Children:
E, five years, eight months. He is in kindergarten at H Public School. He presented as a polite friendly boy. E appeared to have significant difficulties with his attention. He was observed to frequently fiddle with items in the room and he so then requested paper to draw a picture but he wanted to draw one for his mother and her partner and one of his father and his partner. E appeared better able to listen whilst engaged in the activities with his hands.
The family consultant commented to both parents, after E’s interview, that E’s presentation was consistent with a child who had ADHD. E spoke positively to the family consultant about the father, stating that he is a friendly parent who takes him to the swimming pool and plays cards with him. E spoke positively about the father’s partner, Ms EE. He said she sometimes gets grumpy with her children and yells at them but she does not yell at him because, “I have never been naughty.”
Ms DD reported that:
E spoke positively to the family consultant about his mother saying, “She is a kind mother.” He initially said that the mother does not smack the children but he later said that she does and that he had told the psychologist Mr P about this but regrets doing so because it now means he does not see his mother.
The court finds this comment demonstrates an extraordinary insight for a five year old. The mother suggests that this child has been coached. The insight demonstrated by the child, coupled with his capacity to simply retract the allegation in circumstances where he clearly loves his mother and knows that having made the allegation means he is not spending time with her, is something the court gives weight.
Ms DD noted that E strongly denied he is fearful of the mother and that E spoke positively about the mother’s partner, Ms CC. Again, this is not a child who presents as somebody who goes into the interview and says, “I’m being physically abused. I’m scared of my mother. I’m scared of her partner.” This is a child in enormous conflict with respect to his emotions where the family consultant noted:
E declared, with frustration, “I don’t know” when asked about his preferred living arrangements. He indicated that questions like this make you feel like he has to choose between his parents, which caused him to feel “sad.” E stated that his greatest wish is for his parents to reconcile but he said he also does not want their partners to be sad.
Again, these comments demonstrate enormous insight. This is a child who is divided in his loyalties. He is concerned not only for his parents and himself but he is worried about how his parents’ partners would feel if his parents got back together. Ms DD further reported:
E said he knows his parents won’t reconcile but he wished they could get along better.
From the mouths of babes, parents take note “Please, mum and dad, please stop fighting”. The family consultant further sets out:
D, aged eight years, four months, is in year 3 at H Public School. She presented as a friendly child who was significant impacted by the parental conflict. She spoke at length about wanting to be fair to both parents and about the parental conflict. D indicated that both parents speak negatively about the other parent to her.
Again, there were injunctive orders. Do not denigrate one another in front of the children. But who was listening? Who was complying? The report sets out;
D said that in particular the mother does not like it when she speaks positively about Ms EE.
We have heard what D tells Mr P, that she dared to draw a picture of the father’s partner and the mother’s reaction to that. The court does not accept that issues like this one are something this child can be coached into saying. Ms DD further reported:
D said when talking about speaking negatively she thought that the mother does this significantly more than the father. D indicated the parents argue about things that are bought for the children. She is well aware of the parental conflict. D claimed there have been occasions when the mother has locked the children out for between one to two hours when she is angry which makes her feel scared.
Hannan J did the best she could. She made a range of orders about these parents and what they should and should not do and she was very clear about the way in which these children should and should not be disciplined. Nevertheless Ms DD set out:
D indicated the mother often appears stressed but she runs the children’s routine. D said that the mother loves the children. She buys them clothes and toys. D said that the father is kind to the children and looks after them well. She stated that he gives her choices about what they are allowed to wear more than the mother does, which she likes. D reported that the father asks her not to tell things to the mother that occur in the home, particularly in relation to Ms EE.
These children are under enormous stress as a result of loyalty demands placed upon them by these parents. They are not free, in the view of the court, to love openly their parents’ partners, where of course they should be. The family consultant sets out:
D indicated there has been significant conflict regarding her first holy communion. She became teary, rubbing her eyes, and she declared, “I felt like if I had it with mum, dad would be upset, but if I had it with dad, mum would be upset. I felt like it could hurt the other person’s feelings.” D said the mother had cancelled her first holy communion and then the father had secretly organised for this to occur on another day.
What the parties possibly think they are doing and how they have chosen to practise their religion, the court does not possibly know or understand. Where their religion preaches things such as forgiveness and redemption and such things as turning the other cheek, the court cannot possibly understand how it is these parties could end up in a conflict over their religion, the type of which that has disturbed D to the point where she is broken by it. It is in the view of the court complete hypocrisy. The family consultant sets out:
D maintained that E gets really angry at both parents’ houses and that sometimes this is directed at her. She said she is of the view that the father was better at assisting E with his anger than the mother because dad can calm him down.
The report further sets out:
Each parent reported that the children love the other parent. The father declared that the children are fearful of the mother but he went on to acknowledge that they miss her a bit –
The father’s suggestion is a disingenuous one where the court accepts these children would miss her a lot. The family consultant notes the mother’s criticism of the father where:
The mother claimed that the father does not adequately assist E with his speech impediment and does not follow the advice given by a speech therapist.
The Court has read and has considered some of the material produced on the subpoena that was tendered with respect to the speech therapy. There are bigger issues for these parties to worry about, but they are concerned and consumed, particularly the mother, by the minutiae of what is happening.
The mother claimed to the family consultant that the father often fails to ensure that D gets to her hobby classes when she is in his care because he does not want to waste his time on this. She said that the hobby school has complained about this. Again, a further demonstration that the parties consumed by the minutiae of the day-to-day struggle to look after these children. In reality these children are being consumed by the parents’ disagreements and by their conflict. Each parent claimed the other parent speaks negatively about them to the children. That is of course borne out by what the children say.
The family consultant observed the children informally with both parents and their partners and the children were observed to engage in what appeared to be a genuine affection with all four adults. The family consultant noted there was no indication that the children are fearful of any of the adults and their family. If only these parties would listen.
The family consultant advised both parents that based on the information provided by them and by the children, the most significant issue facing the children is parental conflict. Each parent gave the family consultant the impression of minimising their own contributions to this conflict by claiming it is the other parent who communicates aggressively, acts divisively and often unilaterally pursuing their own agenda for the children. The level of the parents’ distrust of one another is palpable.
The family consultant also advised both parents that in her opinion there is likely some basis for the claims regarding the mother’s behaviour towards the children, but this may have been exaggerated by the father. Further to this, the family consultant noted that E’s behaviour would likely be challenging for any primary carer and this may explain the mother becoming stressed, although she denied this. It is notable in this case that the mother says nothing of struggling with the children’s behaviour. The mother does not say, “Look, this little boy is challenging”, and the Court will go through some of the material that suggests that, indeed, yes, he is, to the point where the mother and her partner have attended at the school to collect E and they have had to drag him, holding him in the air kicking and screaming.
The family consultant opined that the children are clearly negatively impacted by the parental conflict and are anxious and sad about this. The family consultant suggested it is possible that the children tell each parent what they want to hear about the range of issues, including their preferred living arrangements because of the chronic parental conflict and the likely conscious or unconscious invitations from each parent to the children to side with them in relation to a range of issues that involve the other parent and their views.
It is the view of the Court that these children do not want to decide. They do not want to be caught in the trap of having to say, “I want to live at one particular parent’s home”. What they say is that they are being physically disciplined. They do not like it. They do not want it. But they still want the mother. They still love her and they are not scared of her. What they say is they simply want it to stop.
The family consultant goes on to say that,
Based on the information available in this assessment, it appears that the three key issues that may require determination of the Court are whether the children are safe from excessive physical chastisement in either parent’s home.
I will read it again.
Whether the children are safe from excessive physical chastisement in either parent’s home.
I am not satisfied that the family consultant was cognisant of order 7 made by Hannan J that completely prohibited any form of physical discipline. Had the family consultant been aware of that, the court suggests that the report may have been different. The report may have suggested a key issue was whether the children are safe from being physically disciplined and whether the parents are breaching that order. And, again, that is not what this report says.
It is the view of the Court that based upon that assessment, the family consultant has formed a view about the mother’s physical discipline. Physical discipline of the children is a breach of the orders. This is not a case about whether or not the mother’s physical discipline is lawful chastisement for the purposes of providing a defence under the Crimes Act, where a parent physically disciplines a child. I will come to that issue later on in this decision and discuss what the Crimes Act does and does not say.
There is an injunctive order that prohibits physical discipline. The children report that is taking place. It is the father’s case that he waited and he sat back until he could wait no longer. His counsel’s submission put that when D said that the mother’s partner, Mr CC, had physically chastised her it was “the straw that broke the camel’s back.” That was the exact submission.
For the purposes of these proceedings, the parties’ motivations do not feature in the considerations set out at part 7. The test is not whether the father genuinely believed the children or whether he was making a case or whether it was the straw that broke the camel’s back. The Court must go through and consider those matters set out at section 60CC, 2(a) and (b), 3(a) through to (m), 2(b) with primacy over all others. For that reason, the Court makes no findings about whether or not the father was making a case or whether it was the straw that broke the camel’s back. The matter finds itself before this Court for determination, taking into account the legislative pathway found at Part VII of the Family Law Act (Cth).
The family consultant sets out that based upon the information available in the assessment, it was strongly recommended that the parents and the children be ordered to attend upon the FF Counselling Centre to participate in the Keep In Contact program.
The family consultant points out that consideration was given to whether this matter could be considered for the Magellan program in the Family Court of Australia, but based on the information provided in the assessment Ms DD suggested it did not appear the allegations of physical abuse were so serious that they would meet the criteria for the program.
Again, the family consultant talks about whether the allegations of physical abuse are so serious. Again I say this, there was an injunctive order that says there shall be no physical discipline of any type. The family consultant further suggested that if concerns remain regarding the children being subjected to serious physical abuse, considerations could be given to referring the matter to the Magellan Registrar for review.
The family consultant does not say the children should be returned pursuant to a recovery order and the orders go back to what they were. The mother asks that the children be returned so they live with her in a 10/4 arrangement.
The family consultant opined that where there are concerns about either parent’s current mental functioning, it is recommended that a single expert report by a child and family psychiatrist be ordered, otherwise, a family report may suffice. The family consultant suggested another option may be that prior to a family report, each parent obtain a report from a psychologist regarding their current mental state and functioning. The family consultant recommended that an Independent Children's Lawyer be appointed.
This family consultant does not suggest that things should just go back to the way they were. This is a family consultant who has suggested that at least a family report be ordered and an independent children’s lawyer be appointed. These recommendations are made in circumstances where the family consultant is cognisant of final orders having been made in 2017.
Tendered during the interim hearing were tender bundles prepared on behalf of the mother and the father. The mother’s tender bundle forms exhibit C and the father’s tender bundle exhibit D.
The court particularly notes the following documents contained in the tender bundles. In the mother’s tender bundle, exhibit C – a report of Mr GG paediatrician, date 27/03/2019 sets out:
Thank you for asking me to assess E in my attendance today with his mum Ms Masri and her partner Mr CC and E’s father Mr Masri. I hear that E is generally a healthy boy. He was born at term. His speech skills with the way that he has had speech therapy. His language improved but he is still having problems with stuttering particularly if he gets frustrated. I am told that on good days E is very caring, considerate and loving. He has had incidents at school where he has become somewhat frustrated and started upturning furniture. He becomes agitated when he is not following the teacher’s directions and was running out of the school and getting rather belligerent. He seems to have a very good memory but he has a tendency to write facts rather than imaginative stories. E has a tendency to like order in things. But E’s mum tells me that she has OCD features and keeps things in order and feels that the child follow her routine. E is also a little wary of change. He doesn’t adapt well, he likes the black and whites in life. There are no other sensory issues. His mum tells me he has no problem making friends and he is very sociable and happy with children.
At times E appeared not to be listening but he is then able to recite the lessons or reports on what has been happening. He looked on the internet and has memorised all the features of a kayak which he then displayed to the family to their amazement. My feeling is that E’s main problem is that he lacks self-control. E gets frustrated things aren’t black and white, the way he likes them. E then expresses his frustration in an emotional way. I understand at school the teacher has put in place emoticons where E can express his feelings and that it seems to have helped in reducing his emotional flares. The fact that E gets frustrated and then starts to stutter a bit would hinder his ability to express his emotions and that may cause more frustration.
I talked with the family about making sure E has a good night’s sleep each night. And both parents assured me that he went to bed a good hour around 7.30 and slept until 6.30 in the morning, allowing him to have a good night’s sleep. I’ve suggested the family make sure they don’t step around issues, if they want something done, they should ask E to do it, and if he refuses they should put a consequence in place. This process will help teach E better self-control, I think that is his main area of concern. I don’t get the impression that E has any significant problems with attention and focus. He is able to pick up on details and is quite perceptive.
Reports of distraction I think relate more to his lack of self-control rather than to an underlying attention problem I suggest that if E has ongoing problems he would benefit from seeing a psychologist to help him with emotional control to learn to control his anger and to express his emotions.
Much was made about the father relaying to Mr P that E had been assessed and there was no diagnosis of ODD or ADHD.
When one reads this report the father may have rightly or wrongly suggested that E had been assessed for ADHD and ODD. The court does not accept for the purpose of the hearing that E had been assessed but perhaps the father reads the report as suggesting that E had been diagnosed as not having those things.
Material produced on subpoena shows that on 27/03/2019, E drew sad faces and tears suggesting he does not like to go to Dad’s house and he wants to stay with his mum.
The teachers set out in some of the material produced on subpoena from the school that:
E is particularly unsettled with difficulties on Monday following visits with his father, but uncertain why this is.
There is a suggestion by the mother that the children’s school is being unfair towards her and that they are taking the father’s side. When one reads the notes contained within the material that has been provided on subpoena from the school that suggestion is not borne out.
On 7 May 2019, Mr HH from H Public School wrote a letter that set out:
Good morning, Mr Masri,
I have asked Ms JJ Learning and Wellbeing Officer for the Department of Education to send me a recount of what occurred whilst they removed E from the classroom yesterday to ensure that these types of heated conversations do not occur against whilst on school premises. These discussions will not occur on E Public School site again or a warning of the Enclosed Land Acts will be issued to participants.
Yesterday E hit both his School Learning and Support Teacher and the classroom teacher. These actions are not acceptable. E will be receiving a formal caution for suspension for these actions.
I will send this letter as an email to Ms Masri to ensure a consistent message is received.
On 21 May the mother wrote to the school principal. The mother sets out:
As per the policy, I’m writing to you to appeal E’s four-day suspension as we feel the suspension is too long for a five year old and kindy student. As per the policy guidelines, a suspension is anywhere between one to 10 days. We feel –
(I am not sure who “We” is, but,)
We feel that four days is excessive. We also feel that his suspension is beyond his control. A year have his diagnosis and his behaviour is something we are all working on, stemming from his speech.
I do not know what diagnosis the mother is talking about. I do not know whether the mother is suggesting that the diagnosis is something that she takes as a result of the report prepared by Mr GG. The letter goes on,
As I’ve explained, I’ve gone and gotten a mental health plan for psychiatrists to attend H School as this is where E’s speech and behavioural issues appear. The speech therapist as per the report the school has stated if his anxiety in his speech appears, then speech could be revisited. We also feel that E shows OCD traits. There needs to be a consistency and constantly having different teachers in the room is not consistent. This may be a trigger and needs to be addressed. We would also like, as a professional and common courtesy, for teachers not to speak so low of E and to make such inappropriate comments. If they feel they need to, to do this in a debriefing with yourself in private and not in front of other teachers and students.
Mr HH, the school principal, wrote back to the mother. This letter set out:
Good afternoon. A suspension review for E. Good afternoon. After reviewing your concerns regarding the suspension of four days issued to your son E, Tuesday 21 May 2019, I’ve determined that four-day suspension will stand and that E will be expected back to E Public School on Monday 27 May 2019. In reviewing the suspension I collected witness statements, consulting learning and engagement officers with the Department of Education, departmental policies including, but not limited to, suspension and expulsion of school students, procedure 2011. Student’s discipline in government school policy and the behaviour code for students. During the review I reported myself to the employee performance in (indistinct words) for removing the chair E had held above his head in a threatening manner and moving him away from an unsafe area to where he was kicking and pulling a heavy desk down upon himself. I am awaiting the determination for my actions.
During the review, parents with students within E’s classroom also expressed their concern regarding the safety and learning disruption for their children. I now consider the risk review on my behalf complete. I thank you for your escort and involvement in this difficult time. I informed Mr Masri of the suspension directly after you left the school on Tuesday and explained to him the actions of E, the duration for the suspension.
Contained in the mother’s tender bundle is a report prepared by Region KK Local Health District. The report states,
E continues to present with typical mild but still fluctuating stutter severity. At his last clinical appointment on 3 August 2018 E presented with a stuttering severity out of 1 and his reported a typical rating of 2 for the days leading up to the appointment. At the last telephone contact with E’s mother on 7 September she reported that she had maintained very low levels of stuttering. She did not feel E would achieve ratings of 0 due to his fluctuations in severity and suggested discharge from therapy. Since E is still stuttering speech it was recommended that after discharge as he gets older, his mother prompt open discussion about his speech, giving him opportunity to discuss how he feels about his talking
E has now been discharged from the stuttering unit.
Tendered, as I have said, during the course of the proceedings is the father’s tender the bundle. The Court makes note of some of the significant documents contained within that bundle. Contained in the tender bundle is a letter or report that identifies “incident number ... re telephone conversation.” The letter or report was signed by Ms LL, the school administration officer and sets out:
On Monday morning 10 am 19 August 2019 I received a call from the mother of D and E who attend H Public School. She asked if the children were at school and after looking at the role on the computer I said that they were marked present. She immediately asked what time they’d arrived and why they were late. I looked up the late arrival and informed they were not late and did not receive a ‘late note’.
Ms Masri became agitated, implied that I was wrong, saying they were not there when the bell rang and why were her children being treated like prisoners with minders following them around and adding to their stress, making them feel they were in jail.
I replied I knew nothing about the children being accompanied around the school and how does she know these things, asking if she was in the school. To this comment, Ms Masri, (in other words, the mother) became very abusive, saying she has friends who witness things and if I did not do something about what is happening she would report me to the Education Department and take legal action as it was the father who kidnapped her children and she was taking him to court to get them back.
The note goes on, that the mother,
Would not stop rambling and shouting and I found it impossible and very stressful to communicate with her.
I was trying to get her to understand that I knew nothing about her situation so I put the telephone call on hold while I transferred it to Ms MM, Relieving Principal.
This was inappropriate communication between the mother and the school.
The Court notes that the principal made a report to the Department of Family and Community Services. Confirmation of that reporting is contained in a letter to the school principal from the Department dated 26 June 2019. When one reads some of the material produced on subpoena from the Department of Family and Community Services, the Court find that some of reports made to the Department have been made by the father or father’s side of the family, some are not and some are made by the school principal.
Page 45 of the father’s tender bundle is a copy of what appears to be a with compliments slip, with writing on it that provides:
Please find enclosed a copy of the brochure for the Anchor counselling program for children experiencing difficulties in the aftermath of family separation. Please let me know if you decide to engage with this service.
The court accepts the slip contains a note from the school counsellor to the mother enclosing a brochure for the Anchor program.
There is a further note on the slip written by what appears to be a school counsellor ‘SC’ note. The note was prepared by the school, is dated 12/04/2019 and provides:
Envelope containing brochure and note to Ms Masri had been returned to the front office yesterday with a note from Ms NN written on the back of it, “Ms OO, this has been returned by the mother. As their separation was some years ago, she feels it may be better given to another family”.
An interview between the school counsellor and the mother took place on 09/04/2019 as contained in notes of that date found at page 46 of the father’s tender bundle. The notes prepared by the school counsellor provide:
School counsellor suggested benefits of the Anchor program. Ms Masri told the school counsellor, “I know all about this because I’m a health care worker”, but initially discounted me because family had already participated in a program run by The Benevolent Society. Ms Masri then talked about concerns regarding D’s relationship with her father. She said that D told her that her father told her to fetch things like a dog. School counsellor reiterated the benefits of the Anchor program for families with children in the aftermath of separation.
Further action: School counsellor to send brochure home tomorrow as children go to their father’s tonight. Ms Masri can decide if she would like to engage with service and contact school counsellor if she’d like assistance as referred.
The note further sets out:
School counsellor sent copy of brochure for the Anchor program
There is a further note dated 12/04/2019 that provides:
School counsellor organised meeting with Mr Masri to discuss E. When Mr Masri arrived at school, D would not separate from him. She clung to him. Mr Masri advised she always behaves like this after their contact visits (overnight) with him because she misses him.
The notes of the school refer to a meeting on 6 August 2019. It is found at page 47 of the father’s tender bundle and provides:
School counsellor reviewed assessment and recommendations, including recommendations for an external psychologist report and support through the Anchor Program to decrease levels of distress for the children following separation. Mr Masri, (in other words the father), was open to these recommendations he stated the only way he believed Ms Masri, (the mother), would agree to the Anchor program is if he stated he opposed it.
The note suggested that the mother is not open to the Anchor program, the father is.
Things had been so bad at school with respect to E’s behaviour that there is an emergency evacuation plan contained in the material produced on subpoena from the school. The emergency evacuation plan is titled Emergency Classroom Evacuation Plan. Student: E. Class year: kindergarten K-City PP. Heading: Extreme Behaviour:
Lifting, kicking and throwing objects and furniture around the classroom, spitting at teachers, throwing objects at teachers. Prescribed medication: nil. Symptoms, signs to watch for: inability to be chosen for an activity or answer a question first, being asked to complete a particular task, being asked to sit with five Ls – (Not sure what that means) -if he feels he hasn’t been given enough one on one attention and support to complete a task, being asked to stop making distraction noises. Actions/steps to be followed: Teacher to call the office to seek assistance from Mr HH, (in other words the school principal). Red emergency card. Evacuation words voiced to class. SAFE. Students to stand and leave class quietly, quickly and safely. Students go directly to K-QQ room. Adjoining door is always open. Student to tell Ms RR the situation. Inform class of evacuation drill and steps they need to follow.
E is a child who is exhibiting or has exhibited extreme behaviours at the school. An email written by the mother to the school principal on 7 May 2019 at page 50 of the father’s tender bundle, provides:
Good morning Mr HH
I suggest you rethink this action you’re wanting to go down as I will involve the Education Department. There’s a lot lacking on the school’s end currently. Its misunderstood children that are disadvantaged are not being supported in this instance. If this was such an issue yesterday, from the entire day as you stated, then why didn’t you call me !!.
You called his biological father at apparently 2.10 pm which was when I was at the school. Maybe – just maybe if you documented all these accounts that happened when he has been at his father’s house, how much of an impact it is having on E’s mental health and learning ability so then I have a leg to stand on to show there is a clear issue happening.
I read this email in circumstances where it is the mother’s application the current arrangement remain in place, the children be recovered and that the existing orders for the children are maintained. Again, it is noted that the current orders provide for equal shared parental responsibility and the children spending what might be described as substantial and significant time with the father. The mother’s email goes on to set out:
E arrives to school tired, hungry and irritated, as documented and stated to myself upon pick up. D suffers night terrors when she’s back home returning from his home. The school counsellor doesn’t want a bar of it. Why is she employed? Instead, states she’s only there for educational purposes. I’m a qualified health care worker (cites qualifications)). What is the counsellor employed for and what are her credentials??
“I sent E out of a classroom” – thank you – and you followed witnesses to this action. Please do not state you removed E out of the room. “I always put the safety of my children and the other children first”. I suggested to you – so I suggested you maybe have a chat with both my children and see what I got upset with the father who then tried to staunch up to me and my partner, which is unacceptable.
Both children went to bed at a stupid time Sunday night when their night – and were put in one room – one bed to accommodate his girlfriend and two kids. D and E are different sexes and as per Children’s Court, they need to have their own rooms and they do when they are with me. I suggest you put the children’s needs first, Mr HH, and I’m unimpressed with your email.
What is said yesterday needs to be said. No children present and only adults. The only heated person in the room was Mr Masri who tried to stand over me and I won’t accept that. I told him to calm down and speak like a normal human being and start putting his kids first.
You kept saying you were aware of the pattern of behaviour and would be a bit more tolerant of E to allow him to settle again. He made progress last term. We had done everything wanted, and more, from the school. What has Mr Masri done? What conversations have you had with him and why aren’t we aware of them?
Until the school pulls him in and has a proper chat, that you will document and send DoCS, nothing will change and we will continue on this merry-go-round. I would like a response to what conversations you’ve had with Mr Masri and what actions have been put in place to address these issues with him.
The mothers’ email follows an incident that took place on 6 May 2019. It was a significant incident. So significant that an incident report was prepared by the children’s school. The incident report was prepared and dated 6.5.2019. The time of the incident was recorded as being approximately 2.14 pm. The location of the incident being the kindergarten classroom. The incident report was signed under the hand of Ms JJ, learning and wellbeing officer, 8.5.2019. It is found at page 52 of the tender bundle. This is the incident that precedes the email forwarded to the school principal by the mother. The incident report sets out:
I accompanied the principal to the kindergarten classroom to witness the damage done to the classroom by a student, E. I saw a student entering the classroom, his mother was already there. She asked E to help her clean up the room and then proceeded to do so. The principal and I sat in one corner away from them so that we could begin our arranged meeting. The stepfather soon arrived and assisted cleaning up as well while the principal and I continued to work on our matter.
Soon after E’s father arrived with his partner. E’s mother then questioned the woman in a loud voice. “If you’re in his life, I need to know and I hope you are because he, E, needs to go bed at an appropriate time, or words to that effect.”
Again, it states:
E’s mother then questioned the woman in a loud voice. Both the stepfather and the mother continued to make critical statements towards the father so that the principal suggested he take E to the office.
These things were being said in front of E. There is an injunctive order preventing denigration in front of the children. The incident report further sets out:
Whilst he was out of the room, the mother and the stepfather continued with raised voices to make negative statements about the money the father provided, his character and his parenting. I then went across the room to the parents to suggest they leave or discuss matters elsewhere. I said, “Excuse me, I’m sorry, but this is not appropriate.” The mother then said “it is appropriate” and continued to speak loudly at E’s father and his partner. I repeated it was not appropriate to have the conversation in the classroom.
The father started to move away and advised his partner not to respond to E’s mother. I then asked the father if E was to go home with him and when he said that he was to go home with the mother, I advised the father to leave. While I was taking him to E’s mother, so I was talking to him. E’s mother and stepdad were still speaking loudly at the father and his partner. The father and his partner moved away and left when the principal arrived. Shortly after, the mother and stepfather left.
The Court does not accept that, based upon the report prepared by the school that the mother’s behaviour was appropriate. The Court does not accept that somehow the school is in a conspiracy against the mother.
Contained in material produced by the school and contained in the tender bundle is a note of a telephone conversation with the mother that took place on 4 March 2019. The record of the telephone conversation has been signed and has been witnessed by two parties who heard the telephone conversation. This is a school that appears, on the face of the material, to be under siege. It is concerning that the school felt it necessary to have two other parties – in effect three people involved in a telephone conversation with the mother where two parties were acting for the school as witnesses. The note of the conversation on 4.3.19 at 11.45 am, witnessed by Ms RR and Ms SS provide:
At 11.40 am I was asked by Mr HH to call – the principal called E’s mum to inform her of E’s behaviour.
I called and informed that E was currently running around the school and refused numerous requests to return to class. I said he had assaulted a number of teachers. She stated assault was a strong work. What did it mean in behaviours. I stated he kicked, punched and hit teachers and teaching assistants. She asked if he was being crowded. I mentioned he was currently running around the school and Mr HH was observing him to ensure he did not hurt himself or others as he had been throwing large sticks at staff and had hit an SLSA with a stick.
I mentioned that under the department guidelines, E would be issued with a four day suspension for assaulting a member of staff. The mother became quite aggressive, stating it was ridiculous; that he had an identified disability. She has an appointment and has informed the school of his multiple disabilities and we have done nothing to support him. That – what is she supposed to do? There is physically nothing they could do. She said that she has told the school he has an identified disability and the school has done absolutely nothing to support him. I mentioned he has a full time SLSO and two teachers assisting him. I said we had clear guidelines surrounding our WHS obligations when a member of staff is injured by a student.
She said she paid for school photos. I said I was sure he had already had his photos. She asked about sibling photos. I said I was not sure but we could discuss when she came up to school and that I was sure I could facilitate a sibling photo.
(It is a most odd request, in circumstances where her son is being accused of assaulting teachers, that the mother would think she had better ask about school photos)
She asked if the suspension started immediately. I stated that E needed to go home today and that Mr HH would confirm the details surrounding the suspension. I reminded her that E received a formal caution suspension. She then said it was ridiculous and that if a teacher was walking in the way while E was throwing crayons, then it was her fault for getting hurt.
I will repeat this for the sake of the record:
I reminded her, (being the mother) that E received a formal caution of suspension. She, (being the mother), then said that it was ridiculous that if a teacher walked in the way while E was throwing crayons, it was her fault for getting hurt. If she is that dumb she has got in the way, then it’s not grounds for a warning.
Again:
If she is that dumb that she got in the way, then it’s not grounds for a warning.
This is a record of a conversation that was prepared by the school and that was witnessed by two other parties from the school. The school is obviously highly concerned about the conversation with the mother and her reaction such that they need two witnesses to the telephone conversation with the mother. The note of the conversation further sets out:
She mentioned she had supplied the school with documentation saying he has a confirmed disability and we have done nothing. She asked if students in the autism class had hit teachers, would they be suspended. I told her, yes, there would be a suspension of students in autism classes if they assaulted a teacher. Again, I said the department’s guidelines are clear regarding teachers being hit and kicked. She said she had spoken to a number of principals and none of them would suspend a kindergarten child. I mentioned the guidelines are clear and she is welcome to come to the school to discuss.
She would take it further, that she has no idea H School was this bad and that we had done nothing to help them. That he was probably set off because teachers are crowding him. If he had someone there just for him, he would then feel crowded. I asked her how can we support him, if he can’t have additional teachers assisting him, yet she asserted we are doing nothing to help him. I suggested she come to the school to discuss alternative ways to support E. She asked me if I knew where he spent the weekend. I said it was not my concern. I was not aware of his weekend arrangements.
She said this always happens when he’s at his dad’s, that he’s tired et cetera and that we should be aware of that by now. I said that I could only comment on his behaviours at school today. She told me to call his father, as she was sick of copping this shit and hung up on me. I called Mr Masri, and he was not able to – I could not catch him. So I left a message, asking him to contact the school as soon as possible to discuss E’s behaviour, as he had assaulted a member of staff and would be receiving a suspension.
There’s a further note contained within the material produced on subpoena from the school. The note is dated 22 February 2019 and sets out.
After being called to his room, I found the room was in total disarray and all the children had been evacuated to the neighbouring classroom. E was in the process of throwing crayons at the teachers and was attempting to flip tables which he had already thrown over. He had thrown crayons at his teacher, hitting her in the face. (This is an incident where the mother places blame at the feet of the teacher should have ducked and covered. She should have got out the way, where the teacher is the one to blame). I calmly asked E to leave the room to spend some time in the office with me. He attempted to throw crayons at me and spat at me. He ran out of the room, was running around the school. He ran in and out of the offices until doors were locked, and he was waiting in the office for his mum to arrive. I called all parents, finally getting through to E’s stepdad. He stated that they would be there.
Mum and stepdad arrived. I provided them with the formal caution letter and explained what it meant. Mum was continually referring to what had set him off and was blaming the classroom teacher for an incident weeks ago. I explained she was a very polite, experienced teacher and also explained that his behaviour is not acceptable and it could not be explained by a single comment taken out of context weeks earlier. I explained that nothing would make that behaviour acceptable. I explained that demands at school are very different to those at pre-school or even in a day-care. I mentioned that things can’t always go E’s way, that he must be able to be told “no” and given feedback about his work. In the office he was trying to break the window by kicking it, looking at me. He is very defiant and noncompliant. He was screaming et cetera. When mum came to try and remove him from the office, he kicked, hit mum, screamed and tried to run away. Mum and stepdad tried to restrain him. Stepdad was observed saying to mum that she needs to stop making excuses for him.
The Court notes mother suggested that there’s no issues in her house-hold that she doesn’t get frustrated, and she suggested on no occasions has she ever hit these children since the making of the orders by Hannan J back in 2017. The note goes onto to set out:
I provided the mother with a number of a psychologist who attends the school. She was, supposedly, calling to arrange some interviews. They then left with stepdad carrying E, who was kicking, screaming, hitting and trying to run away.
I will say it again. This is the level of this E’s behaviour.
They left with stepdad carrying E, who was kicking, screaming, hitting and trying to run away.
D has observed these things. She has observed her brother’s behaviour, and she has observed that, whereas the mother cannot calm E down, the father can. Contained in some of the material produced on subpoena is what appears to be the mother’s Facebook post about the school. The post provides:
Fuck you! So many letdowns.
Mother’s comment under the post reads;
H Public School is not helpful.
The court has considered a further note from a school meeting regarding E that was held on Friday, 31 May 2019.
In attendance at the meeting was Ms HH (School Principal), Ms SS, the note-taker, Mr Masri, the mother and Mr CC. A long discussion takes place. The majority of the discussions occurs between the school principal, the mother and Mr CC, being E’s stepfather. Things do not go particularly well. Towards the end of the conversation, the mother expresses frustration. The note records the mother stating “What’s the purpose of the appeal form when it takes 20 day to appeal anyway”. She is then recorded as asking Mr HH – did he pluck four days out of thin air. The mother stated “You are destroying E’s school life. He hates school. We beg him every day to come to school.” Mr HH is recorded as replying that what he stated occurred were facts. The note states the mother responded saying “Where’s the evidence that Mr HH read did it state that the plans had been followed?”
The note sets out that the mother’s partner Mr CC then got involved in the discussion and is recorded as saying. “After the last suspension there has not been enough time for plans to be followed.” He asked Mr HH where he got four days from. Mr HH stated it would be a minimum four days up to and included 20 days. Mr HH, it appears, was trying to answer the initial question. It records that Mr CC kept on asking more questions in an aggressive manner. It records Mr HH asking Mr CC “Can I please answer your first question”. The note further records that Mr CC continued asking further questions in an aggressive manner, interrupting Mr HH – and then Ms Masri also tried to ask questions. The note suggests Mr HH then concluded the meeting, as he believed nothing further could be achieved, and stated he will be seeking further advice. Mr HH, the school principal, had to close the meeting at 9.30 am.
It is notable that the school feels under siege by the mother. An email to the school principal prepared by Ms TT contained in the subpoena material tendered to the court sets out:
I’m writing this email to ensure that it is stated, I did not say anything about E’s behaviour and I’m denying any allegations made by Ms Masri towards myself and other members of staff at H Public School. I do not accept negative comments by the other staff members towards students. I was in the room purely to ensure the safety of students and teaching staff who were evacuated in my classroom and remained in the room as a witness for Mr HH. I do not make negative statements about any students. The only behaviour-related statements I made yesterday was in praise of six students who cleaned up the room after E had tipped over tables, chairs and thrown crayons around the room.
The records of the school produced on subpoena suggested the mother’s behaviour at the school and towards the school principal and teaching staff is well more than just difficult. The behaviours have caused the school considerable concern. The mother’s behaviours can be classified or best described as highly combative and extremely undesirable. These behaviours give weight to the court accepting the children’s version of their lived experience in the mother’s home. The court is cognisant that pursuant to the existing court orders neither parent has the right to physically discipline the children. Further produced on subpoena are those documents that have been received into evidence and form Exhibit “I” in the proceedings. They are documents produced from the school. Contained in the material is an email from D’s classroom teacher that provides:
Hi, Ms MM. D came back to school on Monday. D came back to school on Monday, 19th, very happy and bubbly. She was very eager to learn and catch up on what she had missed the week before. She seemed settled and calm for most of the week, a few times mentioning that mum and dad had been in court. A few times when given a challenging task she became a little withdrawn and required one on one assistance from me. When given assistance, she seemed to be able to redirect quickly back to the task and carry on with the work. She became a little anxious. She had missed things like preparing a school speech. So she was given time to prepare a speech.
However, on Friday D was extremely unsettled and anxious all day. She was continuously crying and saying that she missed her dad and wanted him. I let her have one-on-one time with me to help her calm down and re-assure her as much as I could. We talked about how dad would be here soon to get her and she would have plenty of time to spend with him on the weekend. When she went out to play at break 1, she came back up the stairs into my classroom, very upset. When I asked her what was wrong, again she talked how she missed and wanted her dad. I let her stay with me for the rest of the day, and she assisted me with some jobs. She participated in sport, getting a sport award for her effort. This seemed to bring her spirit back up. During break 2 I let her stay with me, as she said she didn’t want to go back to the playground again. We played Lego and Minecraft, and she seemed very quiet, which was unusual for her, but she didn’t cry again for the rest of the day. At about 2.30 I walked her up to the office, as her dad came to pick her up, and she seemed very happy and excited to see him. She skipped all the way up and seemed back to her bubbly self again.
There was some suggestion during the course of the submissions that perhaps D was talking about the stepfather – Mr CC. The court does not accept that suggestion. The Court finds that D was talking about her biological father, Mr Masri. The school teacher goes on in a further email dated 26 August 2019 to set out:
I would just like to add some additional information to my previous email. This morning D didn’t want to come down onto the cola for assembly whilst all the parents were here. Ms UU walked her down during the anthem, and she seemed very unsettled and anxious when we got to lines.
When I went back to class, I asked her what was wrong, and she said she didn’t want to come down while the parents were here as she thought one of the parents would try and talk to her. I assured her she would not be worried about this, and she said that last week parents were trying to take photos and talk to her and Ms VV was taking videos of her and photos even of dad. I assured her that this would not happen again and she has nothing to worry about. I said that I’m happy to meet her in the office and walk her down when the bell goes, and she seemed settled once we talked about that.
This is a little girl that is not only anxious and concerned about her parents’ conflict. She’s concerned about third parties being roped into it, and I will talk further about that in a moment. There is contained in the documents tendered from the school a note from Ms WW being E’s classroom teacher. The note is titled ‘to whom it may concern’ and is dated 23.8.19. The note provides:
E returned to school on Monday, 19 August, very happy and calm. He was excited to come to school and had a smile on his face from the start. E completed all of his classwork each day, including independent tasks, which he would, normally, refuse.
The court notes that Ms WW has prepared this note at a time when E has been in the exclusive care of the father and had been returned to the school. Ms WW further notes:
E became very attached to me and followed me around the classroom. He always wanted me – wanted to be my partner to and from the classroom. When I asked E to complete certain tasks that would previously end up in an aggressive response from him, he smiled at me and replied with “okay”, and he completed the task happily. He has not been aggressive or violent since returning to school. His face is always calm, and he has been very happy and settled. E is happy and excited to go home with his father each day.
On Friday, 23 August, however, E was hesitant to come to school, and he did not want to go to school, let go of his father’s hand. He was quiet and sad. It took a few minutes, for E to say “goodbye” to his father this morning. Both his father and I re-assured him that he will see his dad after school when he is picked up. E came inside and was again very attached to me. He sat with me throughout the day and constantly needed mu attention, one-on-one support to complete all tasks. This was out of the ordinary in comparison to the rest of the week.
Overall there has been a significant change in his behaviour at school, both in the classroom and on the playground since returning. He has not been violent or aggressive towards teachers. He has instead been happy, calm, settled and followed all school routines and completed all classwork.
Contained with the materials produced from the school is an email dated 23 August 2019. The email is from Ms UU to Ms MM and provides.
Incident – H Public School, Masri children, Thursday, 22 August 2019. On Thursday morning Mr Masri dropped the children to school in the office. (Where they had been dropped off all week to avoid interaction, questioning from other parents) He advised that he would be in court today with the children’s mother, he would not be able to pick them up. He had organised for his family friend, Ms M, (also a parent from our school) the children from the office. She was to meet them in the office at around 2.30, (the time they had been met by Mr Masri all week) to avoid interactions with certain parents. The student were met in the office by Ms M, and they were getting ready to leave the office, we saw the maternal grandmother and parent (friend of the mother) at the gate. They buzzed the intercom and said that the mother had said they were not to leave the school.
I will read it again.
They buzzed the intercom and said the mother had said they were not to leave the school. We asked the parents at the gate to wait, as we would need to contact our legal department for his advice. Ms M and the children waited in the office. I spoke with Ms XX from Legal and explained the situation. She referred to a copy of court papers from August 2015 that had previously been sent to legal. She also asked for a copy of the previous papers, which were emailed for her. After referring to the paper, she called back and said that, because there were no new directions, (parents still in court at the time of the afternoon), and the children being with the father, we were to allow the students to go home with Ms M after checking with the children – they were happy to go with her, which – they said that they were. Ms XX also said to explain to people waiting at the gate that in the best interest children’s wellbeing, that they leave to allow the children to leave the school without any conflict or confrontation.
As per instructions from Ms XX, I also advised that I would need to call the police, if they would not leave. I went to the gate and asked to speak to the children’s grandmother away from the other parents. I explained that on the advice of legal, children were to leave were to leave with Ms M and that in their best interests could they move away from the gate area to allow the students to leave. She said she would not move until the court case was finished and called another parent over to us, who immediately accessed court papers on her phone to show her dates on them. I explained again that we had received legal advice and that I would need to call the police, if they refused to leave. I also said I not discuss the situation with them as they were not the parents. I stated I understood what a difficult situation it is but the children’s wellbeing was the most important and that we were follow advice from our legal department and that it was to be disappointing to call the police. The grandmother then said that she would call the police. I said if that was what she felt necessarily and walked back to the office.
The police were called. They arrived in 15 minutes and spoke to the grandmother and the other parent at the gate. They then came to the office, and I spoke with them. They were happy to allow Ms M to take the children as per Mr Masri’s instructions this morning. One police officer went to where the children, Ms M were, and the other went to the gate to tell the others to leave, which they did after a short time. The police then escorted Ms M and the children to a car. I then called Legal, advised them of the outcome of the situation. I also called Mr YY and Ms MM and advised them of what had occurred.
This in the view of the court is just unacceptable. These children are being exposed to extreme conflict and what appears to be extreme conflict, instigated at the request of the mother that has occurred at the children’s school, which is not acceptable. The school has been placed in a dreadfully difficult position. There is another file note prepared by office-manager Ms SS dated 23 August 2019. On Thursday, 22 August, Ms M came to collect the children under the instructions from the father. Again, the note talks about what has gone on. So bad were things that the documents produced on subpoena show that the School Principal wrote a letter to Ms ZZ (a person who attended the school at the mother’s behest). The School Principal’s letter sets out:
I refer to the incident on Thursday, 22 August, where you engaged in behaviour surrounding custody issues of a student in this school not related to yourself with result of police being called to the school to resolve a disagreement. You should be reminded it’s not the role of the school, to enforce Family Court orders.
If you behave in a similar fashion again or otherwise act inappropriately whilst on or close to the H Public School site, I may prohibit or restrict your to the H Public School site under the Enclosed Lands Protection Act. I do not want to take any of this action, but would instead prefer to work with you in the interests of your own children and all other students, staff, and the wider community of H Public School. Yours sincerely.
The same letter was written to Ms AAA, a person at the school at the mother’s behest.
Pursuant to the existing court orders, neither parent has the right to physically discipline their children.
Punishing a child using physical force against them is an assault. However, the law has acknowledged that it is lawful for a parent to discipline a child using force. Up until 2002, in New South Wales, the public relied upon the courts to determine what may or may not constitute acceptable behaviour for an adult when disciplining a child.
In 2002, the Crimes Act was amended in New South Wales clarifying a clarification of what may or may not be acceptable discipline. The Act now defined circumstances in which a defence of lawful correction of children may be raised as a defence in criminal charges. Section 61AA (1) and (2) of the Crimes Act 1900 outlines the defences that may be available. Subparagraph (1) provides:
In criminal proceedings brought against a person arising out of the application of physical force to a child, it is a defence that the force was applied for the purpose of the punishment of the child, but only if:
·the physical force was applied by the parent of the child or by a person acting for a parent of the child, and
·the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances.
Subparagraph (2) provides:
The application of physical force, unless that force could reasonably be considered trivial or negligible in all the circumstances, is not reasonable if the force is applied:
·to any part of the head or neck of the child, or
·to any other part of the body of the child in such a way as to be likely to cause harm to the child that lasts for more than a short period.
These are parents who cannot claim the protection of the Crimes Act in circumstances where there is a complete prohibition, in fact, an injunction preventing them physically disciplining their children. The Court does not accept these children are being coached, and these children speak of having been physically chastised, of having been hit.
If one looks at the definition that is contained in the Crimes Act, what D suggested she experienced in her interview with Mr P goes well beyond that of lawful corrections. D spoke of being pinched, to the point where she has bled. Such discipline is not acceptable, and it would not, in the view of the Court, allow a perpetrator to use the defences as contained in sections 61AA (1) and (2) of the Crimes Act. It is the view of the Court the mother has breached the injunction against physical discipline.
The court must consider the legislative pathway as found in Part VII of the Family Law Act. The Court turns to section 60CC.This section provides two primary considerations, subparagraph (b) having primacy over all others, and (a) is the benefit of the children having a meaningful relationship with both parents. There is a benefit to these children having a meaningful relationship with both parents.
I remain significantly concerned about the circumstances, that these children find themselves in. They have made disclosures of a type that, in my view, places the children at risk of at least emotional abuse, where if the children return to spend time with the mother immediately, the mother may be unguarded in what shay says or does to them. And I say that in circumstances where the mother is wholly unguarded in what she has said to the school.
I am concerned about what may take place when the mother returns to spending time with her children, where she may seek to blame the children, she may seek to talk to the children about what they have said to anybody regarding the mother’s behaviour and that of her partner, and I am concerned about that having a significant negative impact on the children and in itself being a form of abuse.
Having read and considered the parties’ affidavit material, having read and considered the material produced on subpoena, having heard the lengthy submissions of the parties, I am of the view that there is a need to protect these children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
These children talk to the family consultant about their observations. They talk to Mr P about their lived experiences. The Court does not accept that these children are being coached. The family consultant does not at any stage indicate that she formed the view the children were being coached, and in fact formed the view that the Court would need to determine whether or not the children were safe from excessive physical chastisement.
In other words, was the chastisement excessive? There should not have been any physical chastisement. And in these circumstances, physically chastising the children is abuse. Where they witness their sibling being physically chastised, hit or pinched the children are witnessing and being exposed to family violence.
It is the view of the Court that there is enough evidence before the Court to find that the Court does need to make orders in order to protect these children and exercise its jurisdiction to suspend the operation of the current orders.
The court considers that because of the mother and her partner’s complete denial – complete denial – of all matters in respect of physical discipline, and where D talks about the way in which her mother speaks to her, these children should be protected during the period of the re-establishment of their relationship with their mother.
And when I say “re-establishment”, I mean where they start to again spend time with their mother. They should be able to do so in a set of circumstances where the children are protected from being criticised, where the children are protected from being physically chastised, where the children are protected from being asked questions or being influenced, where the children are in a position where they feel safe.
The Court considers the views expressed by the child and any weight the children give those views, taking into account their level of maturity and understanding. As I have said before, it is disappointing to read how these children are put upon in this conflict, how they have experiences divided loyalty demands, where a five year old is essentially crying out asking not to be placed in a position where he has to make a decision, where he does disclose that he has been hit. And where he states he is not fearful of his mother and he is not fearful of his stepfather, where he clearly expresses that he loves them.
E should not be in the position that he finds himself. This is not a matter where the father has made a case against the mother; the mother has made it for herself. The mother’s communication with the school, in the view of the Court, is appalling. The Court gives weight to these children’s views. They understand what it is to be scared. They understand what it is to be exposed to conflict. They understand what it is to be locked out. They understand what it is to have loyalty demands placed upon them. These children more than most others.
These children know what it is like to live in a situation where they love a parent who is doing something to them that they do not like, where they still want to have a relationship with them, where E is regretful for having told somebody about what they had experienced because it has meant they are not spending time with their mother. Their views should be given weight.
The nature of the relationship between the children and the parents is one where the parents love these children, these children love these parents. But the nature of their relationship is also one where children are being exposed in the current relationship to significant conflict, where on the face of the material the children are suffering abuse in the mother’s household.
The children live in difficult relationships. They are relationships that are punctuated by loyalty demands, where these children are extremely stressed by the circumstances they find themselves in. These are not parents not who failed to take the opportunity to participate in making long-term decisions in relation to the children, to spend time with the children or communicate with the children. These are parents who have fulfilled their obligations to maintain the children. .
There will be a significant effect of the separation of the children from the mother for the time being. But the Court is so concerned about the effect of the children going back to spend time with the mother because of their experiences, because of the unguarded nature and the way in which the mother communicates with the father and communicates with the school, because of the difficulties, it is the view of the Court, that just simply placing the children back with the mother on some unsupervised basis will leave these children placed in a position where they will be exposed to things they should not be exposed to, where they will be questioned and chastised in an unguarded manner by the mother.
This dispute is not just contained to just the parents. The mother has managed to, in the view of the Court, rope other third parties into it. The school principal has had to write to third parties threatening to issue them a notice under the Inclosed Lands Protection Act. This is extremely undesirable. It is not right that the police had to be called where the school felt under siege, where the school has telephone discussions with the mother and feels it necessary to have witnesses to the discussions and where the school is not being supported by the mother.
So, yes, there will be a change in the children’s circumstances. Yes, they will be separated from the mother. There will be an effect upon these children, but in the view of the Court the effect, whilst not necessarily ideal, is one that is necessary for the immediate moment for these children to re-establish their relationship with their mother in a safe way, post the disclosures, and post today’s orders.
The nature of the relationship between the children and the father is a loving one. They clearly love their father. And the nature of that relationship is demonstrated in the children’s behaviour. And for all the many shortcomings the mother levels against the father, of which there are many, of all the shortcomings and all the failings she talks to the school about, the change in E’s behaviour since he began to live with the father is as stark as black and white, or the difference between night and day.
E’s behaviour is significantly changed, and he is behaving, whereas before he was not. It is remarkable the difference between his previous behaviour and his new engagement at school. And the only thing that has changed, really, out of all of it is the fact that E has been in his father’s care and not spending time with his mother.
The Court does not make findings that the change in living arrangements is the cause for it, but it is something that is remarkable, and it is something that speaks volumes, at least, about the nature of the relationship between the children and their father. Yes, they are separated from their mother. But the father’s relationship is such that these children are going okay, at least at school.
Emotionally, long-term, however, the family consultant opines they are not going okay, and these parties do need to wake up to the situation they have found themselves in and do something to derail this litigation and to stop their conflict. The father was at least open to the Anchor Program suggested by the school while the mother was not. Maybe the parents should revisit that. Maybe they should think again about engaging in this program.
These children love their parents’ partners. Maybe the mother finds that difficult to accept, that D loves Ms EE. It is disappointing that D is of the view that she cannot love Ms EE in front of her mother, where her mother is stridently opposed to it, so much so that D complains the mother ripped up D’s drawing of Ms EE.
There is nothing in the practical difficulty and expense of the children spending time with and communicating with the parent, that the Court gives weight. The capacity of the parents is considered. The Court finds the father has the capacity to provide for the needs of the children, including their intellectual and emotional needs.
Noting the communication between the mother and the school, the Court seriously calls into question the mother’s capacity to provide for the needs of the children, particularly their intellectual and emotional needs. There is a real doubt about that. The Court has real concern about it. The parties do of course have the capacity to provide for their children’s physical day to day needs.
The children are not Aboriginal or Torres Strait Islander children. There is nothing in the maturity, sex, lifestyle and background of the children’s parents that the Court gives real weight. Again, it is disappointing – and I have made a comment to these parties – it is disappointing about the way in which they have engaged with one another in respect of their religion that teaches such things as forgiveness, that teaches such things as redemption.
I considered the attitudes to the children and the responsibilities of parenthood that are demonstrated by each of the children’s parents. The way in which the mother has engaged with the school is undesirable. It speaks something of the mother’s attitude of avoidance of the responsibilities of parenthood. It speaks something of her frustrations.
The Court does not ultimately find in the evidence that the father has a poor responsibility towards parenthood, or mother for the purposes of their decision, except to say this: the responsibilities of parenthood go well beyond just simply providing for the day to day needs of the children. There are responsibilities that go towards looking after these children both physically and emotionally, and these parents are not emotionally looking after these children.
These children have been exposed to conflict for most of their living memory. It is for that reason the family consultant suggested that the most significant issue facing the children is the parental conflict.
There is family violence involving a child or a member of the child’s family. When one breaches an injunctive order preventing the children from being physically disciplined, physically disciplining the children is abuse. The other child who witnesses this taking place is being exposed to family violence. Physically disciplining children, as I have said before, under the Crimes Act is an assault with a defence. And while I make no finding of an assault, the parties need to be aware of the law as it stands. It is not appropriate. There is an injunction. The injunction has been breached.
The children have been abused, and they have suffered family violence. And I make that finding, where there is no evidence available to the Court that would suggest, in the family consultant’s memorandum, that these children have been coached. Instead, as I have said before, it was the family consultant’s view that the Court would need to consider whether the children were safe from excessive physical chastisement. They should have been subjected to no chastisement, excessive or otherwise.
I cannot make orders that would be least likely to lead to the institution of further proceedings; there will be further proceedings. There is not available to me an order that is less likely to lead to the institution of further proceedings.
I turn to the provisions of section 61DA. Subparagraph (3) provides that:
When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
The Court is in a position where it considers it would not be appropriate in the circumstances for the presumption to be applied. The presumption is therefore not applied. This is a difficult case, and one where the Court is concerned about the best interests of the children, and having considered those matters set out at section 60CC (2)(a) and (b), (3)(a) through to (m), subparagraph (b) with primacy over all other considerations, the Court is of the view that it is in the best interests of the children that the orders of the Family Court, should be suspended.
It is the court’s view that the risk that the children have been struck by the mother and her partner is so great, where their disclosures are so strong that the Court must act in order to protect the children’s needs and protect the children when considering section 60CC subparagraph (b).
The court makes the following orders.
I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of Judge Myers
Associate:
Date: 17 December 2019
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