Mawad & Hassen (No 2)
[2024] FedCFamC2F 356
•11 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mawad & Hassen (No 2) [2024] FedCFamC2F 356
File number(s): PAC 3649 of 2019 Judgment of: JUDGE MURDOCH Date of judgment: 11 April 2024 Catchwords: FAMILY LAW – PARENTING – Where the subject child is 7 years of age – Where the child has spent supervised time with the father for a period of two years – Where both parties have unilaterally taken the child overseas post separation - Where there are significant allegations of family violence perpetrated against the mother and the child by the father –Where the mother seeks orders that the child spend no time with the father - Where the father alleges that the mother’s partner has sexually abused the child – Where despite the father’s allegations of sexual abuse perpetrated by the mother’s new partner he seeks that the child live with the parties on an equal shared care arrangement – Where the Father alleges the mother has fabricated allegations to alienate the child from him - Where the father relies on the mother allowing unsupervised time between him and the child post separation as the basis of the orders sought by him – Findings made that the father perpetrated family violence including coercive and controlling behaviours upon the mother and the child – Finding made that the father cannot positively support a relationship between the child and the mother – Finding that the parties’ parenting relationship is reflective of a dynamic arising from the father’s controlling family violence - Finding that the family violence perpetrated by the father is a contradiction to an order for equal shared parental responsibility - Finding that the culmination of risks posed by the father cannot be sufficiently ameliorated by supervision or otherwise – Orders made that the child spend no time with the father. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB(1), 60B, 60CC, 60CC (3), 65D, 61DA(1), 65DAC
Cases cited: A v A (1998) FLC 92-800, 84,996
Amador & Amador [2009] FamCAFC 196
B & B [1993] FamCA 143
B & K [2001] FamCA 880
Blanch & Blanch & Crawford [1998] FamCA 1908
Blinko & Blinko [2015] FamCAFC 146
Britt & Britt (2017) FLC 93-764
Carter & Wilson [2023] FedCFamC1A 9
De Roma & De Roma [2013] FamCA 566
Gorman & Huffman & Anor [2016] FamCAFC 174
Hendy & Pennigh [2018] FamCAFC 257
Illgen & Yike [2018] FamCA 17
Isles & Nelissen [2022] FedCFamC1A 97
Keating & Keating [2019] FamCAFC 46
Lenova & Lenova (Costs) [2011] FamCAFC 141
M & M [1988] HCA 68
Moose & Moose [2008] FamCAFC 108
Ramzi & Moussa [2022] FedCFamC2F 1473
Whisprun Pty Ltd v Dixon [2003] HCA 48; and
Zuen & Lhao [2020] FamCAFC 84
Division: Division 2 Family Law Number of paragraphs: 324 Date of hearing: 29 November 2023 to 1 December 2023, 15 February 2024 Place: Sydney Solicitor for the Applicant: Mr Clack Solicitor, Legal Aid Campbelltown Counsel for the Respondent: Ms Coulton Solicitor for the Respondent: Berry Family Law Counsel for the Independent Children’s Lawyer: Ms Yu Solicitor for the Independent Children’s Lawyer: Harb Lawyers ORDERS
PAC 3649 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MAWAD
Applicant
AND: MR HASSEN
Respondent
INDEPENDENT CHILDRENS LAWYER
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
11 APRIL 2024
THE COURT ORDERS THAT:
1.The mother shall have sole parental responsibility for the child X born in 2017.
2.X live with the mother.
3.X spend no time nor communicate with the father.
4.Pursuant to s 68B of the Family Law Act 1975 (Cth) the father be and is hereby restrained by injunction from:
(a)approaching or remaining within 100 metres of the mother and X:
(b)attending, approaching or remaining within 100 metres of the home of the mother and X:
(c)attending, approaching or remaining within 100 metres of the of the school X attends, his mosque, any sporting or other activities X attends;
(d)contacting the mother and the mother’s partner and/or X in any way or form whatsoever including using a third party to make such contact; and
(e)being within 100 metres of or attending any function to which the mother and/or X are attending or any venue they attend and if he sees them he shall immediately remove himself from the venue or event.
5.Within seven days of the making of these Orders the father provide to the mother all identification documents in his possession in relation to X including but not limited to X’s:
(a)Australian Passport;
(b)Country C travel card;
(c)Australian citizenship certificate:
(d)birth certificate; and
(e)immunisation book.
6.The mother have sole parental responsibility for giving consent and making arrangements for the application, renewal and issue of a passport for the child, X born in 2017.
7.Pursuant to section 11(b) of the Australian Passports Act 2005 (Cth) the mother is permitted to apply for and obtain the issue and renewal of passports for the child, X born in 2017 under the provisions of the Australian Passports Act 2005 (Cth) without the knowledge and consent of the father.
8.The Australian Federal Police be directed to remove the name of the child X DOB 2017 from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
9.Pursuant to s 65Y of the Family Law Act 1975 (Cth) the child X DOB 2017 be permitted to travel with the mother out of the Commonwealth of Australia without the father's consent.
10.Within 90 days the Father pay to Legal Aid NSW the sum of $9,003.50 in payment of his contribution toward the Independent Children’s Lawyer’s professional costs.
11.All extant applications and responses thereto are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
This matter relates to the parenting arrangements for the child X currently aged 7 years.
The parties commenced their relationship in 2005 and married in 2012. They separated under the same roof in mid-2018.
X has experienced major disruptions to his caregiving arrangements subsequent to the parties’ separation. The mother took X to Country C without notice to the father for a period of three months shortly after the parties’ separation. The father then took X to Country C without notice to the mother for a period of 11 months from mid-2019 to mid-2020. X has been spending supervised time with the father for a period of two hours a fortnight at a professional contact centre since March 2021.
The mother alleges that the father occasioned serious family violence upon her including the perpetration of physical and sexual assaults. She asserts that the father presents a risk of unacceptable risk of harm to X that cannot be satisfactorily mitigated. Such risk arises from a culmination of the risk of X being exposed to the father’s continued perpetration of family violence, the father’s inability to promote a meaningful relationship between X and the mother, the highly conflictual nature of the parties’ parenting relationship and the negative impact X spending time with the father would have upon her parenting capacity.
The father broadly denies the mother’s assertions of family violence and asserts that the mother has fabricated such allegations so as to alienate X from him. He asserts that the parties should both share a meaningful relationship with X and seeks an equal-time shared-care arrangement.
THE EVIDENCE
A direction was made at the commencement of the hearing that no annexures to affidavits or exhibited documents would be read in the matter unless they were individually tendered.
The mother relied on the following documents: -
·The Amended Initiating Application filed 17 January 2023;
·The Case Outline filed 27 November 2023;
·Her trial affidavit filed 31 March 2023;
·The affidavit of Mr D filed 31 March 2023; and
·Documents tendered throughout the course of the hearing.
The father relied on the following documents: -
·The Amended Response filed on 16 February 2023;
·The Case Outline filed on 27 November 2023;
·His trial affidavit filed on 31 March 2023;
·The affidavit of Ms E filed 19 July 2023;
·The affidavit of Mr F filed 14 February 2024; and
·Documents tendered throughout the course of the hearing.
The Independent Children’s Lawyer relied on: -
·The Case Outline filed 21 November 2023;
·The Family Report of Ms B dated 25 October 2022; and
·Documents tendered throughout the course of the hearing.
Whilst I have read and considered all of the material relied upon by the parties and the Independent Children’s Lawyer in these proceedings, I do not propose to traverse all of the evidence in these reasons but rather address the evidence that grounds the reasons for my decision: Whisprun Pty Ltd v Dixon [2003] HCA 48.
THE PARTIES’ POSITIONS
The applicant mother seeks orders broadly that:
·She have sole parental responsibility for X who is to live with her.
·X is to spend no time nor communicate in any way with the father.
·The father be restrained by injunction from approaching or attending within 100 metres of X and the mother as well as their residence, school, mosque or any sporting or social functions that X or the mother are attending.
·The father provide to the mother within seven days all of X’s identification documents in his possession including his passport, Country C travel card, Australian citizenship certificate, birth certificate and immunisation book.
·The mother have sole parental responsibility for giving consent and making arrangements for the application, renewal and issue of a passport for X, that X be permitted to travel overseas with the mother and to this end that X be removed from the Family Law Watchlist.
The father seeks extensive orders on a final basis broadly as follows: -
·That the parties have equal shared parental responsibility for X who shall ultimately live with the parties on a week-about basis with X to move between each parties’ households each Friday afternoon.
·That X’s time with the father move to an equal shared care on a graduated basis such that X will spend time with the father: -
·For a period of eight weeks from 3pm until 7pm each Wednesday and from 9am till 7pm each Saturday,
·For a period of eight weeks from 3pm each Wednesday until 9am on Thursday and each alternate week from 9am Saturday until 6pm Sunday;
·For a period of eight weeks, each Wednesday from 3pm until 9am on Thursday and each alternate week from 3pm Friday until 9am Monday;
·For a period of eight weeks in week one from 3pm Wednesday until 9am Thursday and in week two from 3pm Friday until 9am Tuesday;
·In week one from 3pm Monday until 9am Thursday and in week two from 9am Thursday until 3pm Monday;
·During the school holidays at the end of terms 1, 2 and 3 X spend equal time with each other parents on a week about basis with changeovers occurring on Friday at the end of school, commencing with the child being in the father’s care from 3pm on the first Friday of school holidays.
·X is to spend the first half of the Term 4 school holiday periods each year with the father.
·X will spend further special occasion times with each of the parties including during Eid, X’s birthday, Mother's Day and Father's Day.
·X will have telephone/video communication with the parent who does not have care of him each Tuesday and Thursday.
·Injunctive orders restraining each of the parties from denigrating the other parent or members of the other parents’ family to, or in the presence of X.
·Other people are permitted to effect changeover of X.
·Both parties are to share equal cost of parenting including schooling, medical or any sports activity that X is enrolled in.
·Both parties and their partners be at liberty to attend all of X’s school, sporting and extra curriculum activities and ensure that X attends same, “with the costs to be shared equally”.
·Each party be permitted to enrol X into extra-curricular activities during the school term and the party who decides to arrange this will bear the entire costs, unless it is a joint decision.
·Both parties receive all school reports and correspondence and medical reports relating to X’s performance at school and pertaining to his health, welfare and treatment.
·Each party is to keep the other party advised of the names and addresses of any medical practitioners upon whom X attends and that “each parent be at liberty to attend appointments with our child of said professionals and be able to attend at least every second appointment and these be organised at minimum 5 days before each appointment.”
·That each party be at liberty to seek professional medical or psychological support for X and the costs be shared equally.
·Each parent shall as soon as practicable contact the other parent to advise in the event that X becomes seriously ill, is hospitalised or is involved in an accident requiring the attention of a medical practitioner or admission into hospital.
·Each party keep the other informed of their contact details, including residential address, landline and mobile telephone numbers and email.
·The parties “be restraint from moving further away from each other without agreement, that if there needs to be a move that it be within 30 kilometres of the other parent’s residence”.
·X remains on the Family Law Watchlist unless agreed in writing by both parties.
·If either party needs to travel, X should remain in the care of the other party “only and nobody else. Travelling parent should give at least 15 days prior written notice of the intended trip.”
·The Australian Federal Police be directed to remove the name of the father from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
By consent the father’s name was removed from the Airport Watchlist in early 2023.
The Independent Children’s Lawyer supports the making of orders as sought by the mother.
THE ISSUES
Pursuant to directions the parties filed a joint statement of issues to be determined at the final hearing as follows:
·The allocation of parental responsibility;
·Whether X should live with the mother or live in an equal time arrangement with both parties;
·Whether either parent has or will negatively influence X’s views against the other and thereby undermine his relationship with the other parent.
·Whether the mother has engaged in parental alienation.
·Whether the mother’s partner poses any risk of sexual harm to X.
·Whether the father poses an unacceptable risk to X by reason of allegations of family violence and coercive/controlling behaviour made by the mother and her partner against the father.
·Whether X should spend any time with the father.
·If X is to spend time with the father:
·Whether such time should be professionally supervised and for how long;
·What, if any, capacity the father has to pay for professional supervision;
·The availability of professional supervision for an extended or indefinite period of time;
·When (if at all) time should become unsupervised;
·If that time is to become unsupervised, how that time should progress (including whether it should progress to equal time);
·Whether the commencement or progression of time ought to be conditional upon meeting any requirements such as the completion of parenting or behavioural change courses.
·Whether X should remain on the Airport Watch List until the age of 18.
·Whether either parent should be permitted to obtain an Australian passport for X without the written consent of the other.
·Whether either parent should be permitted to travel overseas with X and if so, whether there ought to be a monetary bond imposed as a condition of such travel.[1]
[1] Exhibit J1.
THE LEGAL PRINCIPLES
Section 65D of the Family Law Act 1975 (Cth) (“the Act”) compels the court to make such parenting orders that are considered proper. In deciding whether to make a particular parenting order the court is to regard the best interests of the child as the paramount consideration. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC of the Act. The primary considerations are the benefit to the child of having a meaningful relationship with both of their parents and the need to protect them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In balancing these considerations, the court is to give greater weight to the need to protect the children from harm.
Each party also seeks that I make injunctions for the welfare/protection of X and in that regard my decision will be informed by the provisions of s 68B of the Act.
In reaching my decision I have considered all of the relevant sections of the Act. I am not required as a matter of law to specifically address each such consideration.
The mother’s proposal which is supported by the Independent Children’s Lawyer that X spend no time with the father would mean that X would have no relationship with the father. I am conscious of the serious consequences of such an order. As stated by the Full Court in Blinko & Blinko [2015] FamCAFC 146:
[30] …Whilst s 60CC(2A) demands that greater weight be given to the consideration in s 60CC(2)(b) – something entirely consistent with the approach of the Courts since the commencement of the Act – the particular facts and circumstances of each individual case nevertheless require a careful evaluation and balancing of Considerations, and all the more so when what is at stake is the potential for a child to never know their parent.
I am not to assume that there is a benefit to X in having a meaningful relationship with the father but rather am required to ascertain whether there is a positive benefit to X in the circumstances of such a relationship.
[122] …No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests. [2]
[2] McCall & Clark (2009) FLC 93-405, 83,476 at [118]-[119]; [2009] FamCAFC 92.
The father’s proposal that X live in an equal time arrangement with either party would result in X sharing a meaningful relationship with both parties.
Family violence is defined in s 4AB(1) of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.”
The terms “coerce” and “control” are not defined in the Act. Justice Gill in Illgen & Yike [2018] FamCA 17 at [123]-[125] stated that:
125. The phrase “coerces or controls” is expressed disjunctively. However it may be seen that the two concepts are closely related. Together they form an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command…
Judge Beckhouse in Ramzi & Moussa [2022] FedCFamC2F 1473 stated at [45] that:
generally, coercive control is understood as a course of conduct aimed at dominating and controlling another person, including a family member.
In Carter & Wilson [2023] FedCFamC1A 9 Deputy Chief Justice McClelland and Justice Campton sitting as the Appellate Division stated at [10] that:
The assessment of whether conduct that falls within one of the provided examples constitutes family violence as defined in s 4AB(1) of the Act necessarily requires that conduct to be considered in the context in which it occurred.
In these reasons a statement of fact is a finding of fact, unless it is obvious from the context that I am reciting the position of one of the parties. The standard of proof with respect to such findings is the balance of probabilities: see s 140 of the Evidence Act 1995 (Cth). When considering X’s best interests, it is not necessary to make findings of fact on every factual dispute of the parties.
Findings should be made in relation to abuse or family violence if “they are available and necessary to determine what is in the best interests of the child”.[3] Proof to the reasonable satisfaction of the court “should not be produced by inexact truths, indefinite testimony, or indirect references”.[4]
[3] Amador & Amador (2009) 43 Fam LR 268, 282 at [88]; [2009] FamCAFC 196.
[4] M v M [1988] HCA 68.
A party does not require their evidence as to family violence to be corroborated before it can be accepted by the court: Keating & Keating [2019] FamCAFC 46. As the Full Court stated in Amador & Amador [2009] FamCAFC 196:
[79] …To the extent that it is submitted that the mother’s allegations of “horrific domestic violence” could only be accepted if objectively corroborated, we do not find that any such requirement exists. Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. We have not been referred to any authority in support of such a proposition.
…
[81] The victims of domestic violence do not have to complain to the authorities or subject themselves to medical examinations, which may provide corroborative evidence of some fact, to have their evidence of assault accepted. Clearly if they do so it is evidence which may assist the court in determining an allegation.
THE CHILD
X appeared to the Court Child Expert as a quiet child whose manner and appearance was consistent with his chronological age. He provided answers to the questions asked of him by the Court Child Expert but did not spontaneously offer information.[5]
[5] Family Report, paragraph 64.
X is presently in year two at school. The mother deposes he enjoys learning about geography, learning new and interesting facts about planet earth, and reading. He has made good friends at school with whom he spends time with at their respective homes.[6]
[6] Mother’s affidavit filed 31 March 2023, paragraph 480-150 (“Mother’s affidavit”).
FACTUAL FINDINGS INCLUDING AS TO FAMILY VIOLENCE
The mother makes serious allegations as to the perpetration of family violence by the father upon both herself and X.
The father broadly denies that he has ever subjected the mother or X to “any sort” of family violence. The father however did concede to the Court Child Expert that he has yelled at the mother.[7] The father does not depose as to any of the specific allegations deposed to by the mother in her affidavit, nor did he seek leave to give oral evidence to respond to same.
[7] Family Report, paragraph 45.
The thrust of much of the father’s cross examination of the mother was the proposition that the mother could not seriously hold concerns as to the care of X with the father as she has previously facilitated X spending unsupervised overnight time with the father. The mother gave evidence that she did so as she felt pressured to do so by members of both her and the father’s family. This assertion must be seen in the uncontested context that culturally for the parties, if the mother was to remarry X would move to live with the father. I accept the mother’s unchallenged evidence that she felt pressured to allow X to spend unsupervised overnight time with the father. I do not in those circumstances place significant weight on the mother’s past agreements as to X’s time care arrangements. In any event, it is for the court to determine whether X is at risk in the care of the father and whether such risk is unacceptable so that it is unable to be sufficiently ameliorated by orders of the court.
It was further put to the mother in cross examination that the allegations of assault giving rise to the five assault charges against the father were fabricated in order to punish the father and stop him from seeing X as she had been jealous since 2018 about what she perceived as an affair with the father’s now current wife. The mother readily deposed that she was angry about the affair but not jealous. She readily conceded that the parties had arguments about this and deposed that she began videotaping the father on some occasions during these arguments as he used to make her angry, video tape her reaction and then show the video to his aunts and “everyone.” This evidence was not challenged, and I accept it.
Similarly, the mother was cross examined at length as to her non-reporting of her alleged family violence to the New South Wales Police or a medical practitioner until subsequent to separation in mid-2019 at a time when the mother alleges the father was unilaterally retaining X in his care. The Act does not require independent verification of allegations of family violence for a court to be satisfied that it has occurred.[8] I do not place weight on the delay in the mother reporting her allegations. It is a common feature in matters where the perpetration of family violence is alleged.[9]
[8] See Amador & Amador (2009) 43 Fam LR 268.
[9] See Hendy & Pennigh [2018] FamCAFC 257.
In cross examination by the Independent Children’s Lawyer the mother deposed that the father was verbally abusive to her. He would say things to her such as his current partner is a better mother than her and that she is not a good mother. He would tell her that if she left him Allah will punish her, that she had an illicit relationship with the father and she is not allowed to keep X because she is not a good Muslim. When X would misbehave, and the mother told the father about it both he and his current wife would laugh and tell her that he only does that in her care. This was not put to the father in his cross-examination and I am not satisfied that the mother has met her evidentiary burden to ground such a finding.
In his written material the father alleges that the mother’s new husband has sexually assaulted X. The father affirmed this belief in cross examination. Whilst no finding of fact was sought with respect to this allegation, it will be discussed later in these reasons.
The father asserted to the Court Child Expert that the mother had slapped him. He conceded that he had not put this in affidavit as “I didn't want to put these things” but he told the court reporter as she had asked him. He further affirmed that he told the Court Child Expert that the mother has a chemical imbalance and believes that sometimes she is not stable. Despite believing this, the father confirmed in his oral evidence that this is still somebody who he thinks he should share care of X with.
The father further reported to the Court Child Expert that the mother had threatened to kill him in his sleep and was controlling during the relationship especially in relation to him contacting paternal family members. He asserted that the mother did not like it if he sent the paternal grandparents money. He further alleged that the mother was verbally abusive, denigrating the paternal grandparents. Again, such assertions are not deposed to by the father and I make no findings in this regard.
The father ultimately asserts that upon the mother's arrival in Australia she experienced homesickness, was depressed, having dark and suicidal thoughts and that she had been prescribed medication to help rectify her “chemical imbalance.”[10] The father deposes that the mother's depression and loneliness and his unwillingness to move back to Country C made the mother verbally and emotionally abusive towards the father often in front of X.[11] He vehemently denies ever subjecting the mother to any form of family violence and deposes that he is a calm, collected, non-confrontational and peaceful person. The father further asserts that he is a loving father and would never do anything to hurt X or put his safety at risk.
[10] Father’s affidavit filed 31 March 2023, paragraph 12.
[11] Father’s affidavit, paragraph 14.
The father alleges that the mother is using the court and government processes as a means of hurting the father, his reputation, and his relationship with X. The father gives the following examples in his written evidence:
·The mother requesting welfare checks on X when he is in the father’s care.
·The mother issuing proceedings in Country C and then failing to attend court.
·The mother issuing proceedings in Country C seeking that he be prevented from leaving Country C while knowing there were orders in place in Australia for X’s return.
·The mother lodging an application for Dissolution of Marriage in another Country C state and failing to appear.
·The mother making false allegations of family violence to which the father was found not guilty of.[12]
[12] Father’s affidavit, paragraph 57.
No submissions were made on behalf of the father that the mother has engaged in systems abuse toward the father.
The actions of each of the parties in this matter are best understood in a recording of events in chronological order. Thus I will for the most part make findings of fact, including as to the allegations of family violence, in such a manner.
The mother was born in 1987.
The father was born in 1988.
Between 2005 and 2006 the parties commenced their relationship in Country C. They married in 2012.
In 2013 the father migrated to Australia.
In 2014 the mother migrated to Australia on a dependent spouse visa. The father obtained a permanent visa in 2015.
English is a second language spoken by each of the parties. The mother’s parents and siblings live in Country G. Her extended family live in Country C. The father’s family, including his parents and siblings, live in Country C.
Between 2015 and 2016 the mother commenced seeing a psychologist.
X was born in 2017.
In 2017 Ms E migrated to Australia on a skilled migration visa. In the same month Ms E moved in with the parties and X as their flatmate in Suburb H.
The father became an Australian citizen in 2017.
In 2017 the parties and X travelled to Country J to meet with the maternal grandfather. In the same month the mother and X travelled from Country J to Country C. The father joined them in Country C in 2018. The family returned to Australia in 2018. The mother is reported as having told the police that until this time she and the father had a good relationship. This assertion was unchallenged, and I so find.
The mother is recorded as stating to the police that upon her return to Australia from Country C she observed the father and his now wife to be “very close” and she suspected they were having an affair. I accept the mother’s unchallenged evidence as to her belief.
The mother deposes that she recalls the first time the father assaulted her was in 2018. At this time the parties were arguing over Ms E as the father had brought her a gift from overseas and the mother suspected that she and the father were having an affair. During this argument the father threw a souvenir on the ground, picked up a heavy object and started beating the mother on the head. The mother deposes the father then pulled her leg and slapped her face a number of times telling the mother “whatever I’m doing to you, you deserve it. You are not a good person.” She asserts that X was present for the entirety of this incident.[13]
[13] Mother’s affidavit, paragraph 112 to 113.
The mother was cross-examined as to this incident and specifically with respect to her written evidence and its inconsistencies with the statement made by her to New South Wales Police on in mid-2019. I accept the mother’s unchallenged evidence that she did not have a copy of the statement she made to the police when she swore her affidavit. In the police statement the mother is recorded as having told the police that the father “hit me at least three times” with the object and then grabbed her by the legs and pulled her off the bed. She hit the ground heavily and her neck began to ache. The mother reports that she landed facing the bed, so the father picked her up and stood her on her feet so that she was facing him. Using an open right hand the father slapped the mother across her face twice and then left the house. The mother telephoned her sisters in Country C about what had happened. The words attributed to the father on this occasion by the mother in her written affidavit do not appear in the police statement of mid-2019.
When challenged, the mother firmly denied that she had made this allegation up. It was her unequivocal oral evidence that the police asked her to specifically detail the incident and provide the story “detail by detail.”
They [the police] said you can’t leave a single detail out of it…. the police asked me very specific question like even what hand he slapped me with, and everything…. I told the whole story to my lawyer.
The mother gives no evidence that she suffered any visible injuries arising from this alleged assault. The apparent inference sought to be drawn from the cross examination of the mother that this did not occur as “you didn’t take a video or any photo of this incident” is ludicrous. It does not assist the father’s case.
The mother was further cross examined as to alleged inconsistencies between her evidence and an intake record prepared by the assistant manager of the K Contact Service dated early 2021. In circumstances where the mother did not agree that the alleged inconsistencies were a correct recording of her reporting to the assistant manager and this person was not called to give evidence, I place little weight on any such inconsistencies.
Whilst I accept there are inconsistencies between the written affidavit evidence of the mother and the recorded statement given to her to the police in mid-2019, her recording of this event has an overall consistency as to the father’s actions. I take into consideration that English is the mother’s second language. I accept the mother’s firm and unequivocal evidence that more detail as to this incident was provided to the police arising from the nature of their questioning of her. The father does not provide any alternate version of events of this day and broadly denies all incidents of family violence as recorded earlier in these reasons. I am satisfied to the requisite degree that the father perpetrated a physical assault upon the mother in early 2018 whereby he hit her with an object and slapped her face with an open hand.
The mother deposes that in the same month she was breastfeeding X at home when the father walked over to her and slapped her leg. He then slapped X’s leg so hard that he left finger marks and X began to cry. The mother told the father she was going to call the police and the father responded, “Okay call them, I don’t care, then I’ll teach you a lesson.” The mother deposes that she did not call the police as she was scared of the father.[14]
[14] Mother’s affidavit, paragraph 114.
The father’s evidence in cross examination was that this incident never occurred. The mother was not cross examined as to this incident. I accept the mother’s coherent unchallenged version of this incident and find that the father perpetrated a physical assault on her and on X on this date as alleged.
Ms E moved out of the Suburb H property in early 2018.
In mid-2018 the paternal grandmother arrived in Australia and resided in the parties’ Suburb H home for one year.
In mid-2018 the parties separated on a final basis. On this date the mother travelled with X to Country C without advising the father that she intended to do so. It is the mother’s evidence that she did this as she wanted to get away from all the fights she and the father were having, but she knows she did the wrong thing in not obtaining the father’s consent prior to leaving. The mother deposes that the day prior she had spoken to the paternal grandmother and said to her: “I am going to Country C tomorrow. I need a few weeks to refresh myself and then come back and think about everything.”[15] Her evidence that she spoke to the paternal grandmother about X staying in Australia with the father whilst she travelled overseas and the paternal grandmother telling her to take X with her was unchallenged. The paternal grandmother did not give evidence. The father confirmed in his cross examination that the mother had told him subsequent to her travelling to Country C with X that the paternal grandmother and paternal family knew she intended to do so. It was her oral evidence that the first time she informed the father of her travels with X was via a text message when she and X were on the plane. I accept and find that the paternal grandmother was aware of the mother’s intention to travel to Country C with X. I accept that the mother did not advise the father of her intention.
[15] Mother’s Affidavit, paragraph 28.
In Country C the mother and X stayed with both the maternal and paternal families.
The father travelled to Country C in 2018. The father and mother met and talked about their marriage. During this time the mother took X to see the father at the paternal grandfather’s home. The father returned to Australia three days later whilst X and the mother remained in Country C for a total period of two months. There is no evidence the father made any attempts to have X returned to Australia. The father does not give any evidence that he did not consent to X and the mother remaining in Country C for this period of time.
The father gave oral evidence that in late 2018 he sent the mother a text message informing her that he would take X away from the mother for the same period of time that she had taken X away from him. The father would not concede in cross examination that this message was a threat but rather that he was “just telling her… I was upset.”
The mother deposes that whilst she and X were in Country C in late 2018 the father threatened to make a pornographic video of her. The father told the mother that he would “make a video about you like the pictures I have of your affair with me before marriage.” The mother deposes that the father has photographs of her without clothes on and the parties had made an explicit video during the course of their relationship. For this she feels that she has failed in the eyes of Allah. The mother holds concerns that the father will “ruin her life” with the use of such videos.[16]
[16] Mother’s affidavit, paragraph 115.
The father in cross-examination conceded sending the message of 26 September 2018 to the mother. The father conceded that the parties consensually made an explicit video during their relationship. It was his evidence that he disposed of such video two months prior to the final hearing. The father denied threatening to post explicit videos of the mother on the internet and ever showing or attempting to show another person such video.
In evidence are additional intake notes relating to the father for K Contact Centre dated 11 February 2021 which state the following:
[the father] reports whilst they were dating, [the mother] requested he make a video of the two of them having sex. [the mother] set up the camera. [the father] reports if I show you the video you will see it is her setting up the camera and asked could he show the manager. Manager refused to look at the video and told [the father] that if he needs to show anyone he needs to show his lawyer. [the father] stated that he just wanted the manager to know the truth.[17]
[17] Exhibit M8.
The father conceded in cross-examination that he had offered to show this video to the manager of the K Contact Centre. The father asserted that he only intended on showing the manager the part of the video in which he alleges the mother is seen setting up the camera. The father agreed that culturally making such videos would be frowned upon, but he denied that he threatened posting such videos to ruin the mother’s reputation within the community. He conceded that there was no need for the manager of the contact centre to view such a video.
I accept that the father has demonstrated a willingness to show the said video to others. This gives credence to the mother’s firm and unequivocal evidence that the father has threatened to do so and I so find.
The father concedes that in late 2018 he sent the mother text messages that:
next time if you tell anyone about my affairs then I’ll also tell them about your abortion.[18]
[18] Exhibit M9.
The mother did not respond. The father then sent a text message:
the video I’ll make will be a bit more intense now.[19]
[19] Mother’s affidavit, paragraph 116.
Later the father sent a text message to the mother:
Don’t try be oversmart [sic] with me
Because u don’t know me yet and u will never know me[20]
[20] Ibid.
The father conceded in cross examination that he sent these text message to the mother. It was the father’s oral evidence that his reference to the video he would make was a video about himself. No explanation was provided by the husband as to what he meant when he stated that such a video would be “more intense.” In any event, I accept on the father’s own admission that the father threatened to humiliate and embarrass the mother so that she would behave in a manner that suited him. The father himself conceded that his latter text message to the mother was a threat.
In late 2018 the mother and X returned to Australia and remained living in the Suburb H property with the father and the paternal grandmother. The mother asserts that it is at this time that the father began demanding X’s passport.
In late 2018 the mother deposes that she was having a conversation with the father about X’s passport with X present in the room. The father said to the mother “give me his passport, if you won't give me his passport...” The father then preceded to pick X off the ground holding him only by his throat. The mother screamed and ran to the paternal grandmother but by the time she had re-entered the room the father had put X down and was being affectionate with him.[21] In cross-examination the mother conceded that X was one year of age when this alleged incident occurred. She conceded that she did not report this incident to the police. This is a very serious allegation. It lacks detail. I am not satisfied that the mother’s evidence is sufficient to ground a finding that this incident occurred as alleged.
[21] Mother’s affidavit, paragraph 118.
On the same day the mother deposes that the father said “I'm going to kill your baby, not you, so that you will be unhappy for the whole of your life. I will be happy to go to gaol, but I'll be more happy to make you unhappy for your whole life.” The mother deposes that she recorded such conversation however the father was speaking in the Country C language.[22]
[22] Mother’s affidavit, paragraph 119.
In evidence is a certified transcript of a portion of the mother’s video recording of this alleged conversation. Such translation was only obtained during the trial in circumstances where I indicated that tendering a video recording of the parties’ conversation would be of little assistance to me when such conversation was not in English. It is uncontested that the male speaker depicted on the certified transcript of the conversation is the father and the female speaker is the mother. The translated transcript tendered by the mother reads:
MALE SPEAKER: [not clear] What is acceptable for you and what is not.
FEMALE SPEAKER: Acceptable to me; you are not acceptable at all to me.
MALE SPEAKER: Alright. It is not a problem. You are not acceptable to me with him. Alright. And I know that I will not get him and neither will you. That is why I have made proper arrangements for him. If you get ten guards, I will get fifty guards. Whether you go to [Country G] or anywhere else in the world. Alright. Remember my words. Regardless of what you have thought of me, I am a big deal.
FEMALE SPEAKER: Not [Country C], this is not [Country C]. There is nothing you can do to him.
MALE SPEAKER: Alright?
FEMALE SPEAKER: You can’t even touch him with a finger.
MALE SPEAKER: I can do it to him now. It is locked for four years/there is imprisonment for four years. Don’t make me mad.
FEMALE SPEAKER: Where will your conscience go after that? After hitting/killing your own child.
MALE SPEAKER: I will have the satisfaction that you have not satisfaction. What do you think… [23]
[23] Exhibit M1.
The mother asserted in cross-examination that as between the words “hit” or “kill” the word used by the father in the Country C language specifically means to kill. It was put to the mother that the Country C word “[…]” which specifically means to kill was not used by the father. The mother accepted this but asserted “the meaning is the same and he understood that.” The mother did not accept that the father intended to say the word “hurt.”
Prior to the final day of the hearing the father also obtained an independent certified translation of a much longer conversation between the parties and the father’s mother. It is clear that X is present during this conversation as he is recorded as saying “Mum.” At one point the paternal grandmother tells the father to behave himself and asks him why he is “getting rude.”
This version differs in some respects to the mother’s translated version. Additional material arising from this translation is underlined. Where the mother’s version has additional material or differs it is in italics. I have not addressed where such differences are inconsequential as to the meaning or context of what is being said.
FEMALE SPEAKER: Then, it is fine. Let us wrap up, [Mr Hassen]. That is it, you get out of my life. I get out of your life.
MALE SPEAKER: I will not even let you live with such an ease. Ok. If you think that you will take him (pointing to the child) as you did it before. Now, I will first take him, then I will come back. Then, you may come up with the terms, whatever these may be. What is acceptable you and what is not acceptable to you?
FEMALE SPEAKER: Acceptable! You are not acceptable to me at all.
MALE SPEAKER: Okay. It does not matter. You are also not acceptable to me with him (Pointing towards the child). Is it okay? And I know that neither I nor you will get him. So, I have made some firm arrangements for this. If you hire 10 guards, I will hire 50 guards. You may go to [Country G] or anywhere in the world. Okay. Remember my point. You have underestimated me; I am a big gun. You may not take undue advantage of my nobleness.
FEMALE SPEAKER: Nobility!
MALE SPEAKER: Exactly, do not take advantage of it.
…
FEMALE SPEAKER: Then, it is okay. You will not get [X]. This is Australia.
MALE SPEAKER: Why will I not get him?
FEMALE SPEAKER: This is not [Country C], [Mr Hassen]! This is not [Country C]… you cannot do anything to him.
MALE SPEAKER: Is it so?
FEMALE SPEAKER: You cannot even touch him with your finger.
MALE SPEAKER: I can do it to him now. The punishment is imprisonment for four years. Okay. Do not make me a fool. (mother’s last translated sentence is “Don’t make me mad”).
FEMALE SPEAKER: Afterwards, what will you do with your conscience?
MALE SPEAKER: Conscience?
FEMALE SPEAKER: After hitting your child? (mother’s translated sentence is “after hitting/killing your own child).
MALE SPEAKER: I will get the satisfaction that you will not remain peace. (the mother’s translated sentence is “I will have the satisfaction that you have not satisfaction.) You take yourself as...[24]
[24] Affidavit of Mr F filed 14 February 2024.
The father in cross-examination asserted that he did not threaten to kill X but rather the parties were having a “silly conversation… it was about taking him overseas.” As to whether the father intended the words “hit” or “kill” it was the father’s oral evidence that “no I meant I could just touch him with a finger... I thought if I took him overseas it was four years gaol.” The father would not concede that his comments to the mother on this occasion were threats and were designed to intimidate the mother. The father’s refusal or inability to understand this threat is cause for serious concern.
I am unable to make a definitive finding as to whether the father said “hit” or “kill” during this conversation. However, even accepting the father’s translated version, this conversation causes me serious concerns as: -
·The father threatens to take X overseas without the mother’s consent (which he concedes that he later did);
·The father then threatens that neither of the parties will have X in their care;
·The father even on his own version of the conversation threatens to hit X and that afterwards he will have the satisfaction knowing that the mother does not have peace; and
·Whilst I am unable to make a positive finding that the father directly threatened to kill the child, the father threatened that the mother “will have no peace” or no “satisfaction.” The father is threatening to act in a manner to deliberately cause the mother psychological harm - to have “no peace” or “no satisfaction.” Whilst I am unable to make a finding as to what it was that the father was threatening to do with/to X to upset the mother in this manner, clearly it is of such significance that the father is of the view it would render him liable to incarceration for a period of four years.
It was the mothers clear and firm evidence in cross examination that she told the father that he is “not in Country C”, as in Country C the paternal family has contacts, influence and money. She deposed that when she was in Country C the father's own aunt and sister told her that she was not safe there. It was the mothers clear and firm evidence that it is her belief that when the father is recorded as saying “I can do it to him” she understood that to be the father telling her that if he kills X, it is only four years gaol. She deposes that the father told her that if he killed her there is no real punishment but if he killed X it is just four years. She deposed that this made her scared and angry; his mother was there too “and told him to shut up.” The mother is of the belief that the father told her that she would be forever unhappy because her child would be gone but he would have the satisfaction that her child would not be living with her. I accept this evidence. Thus, whilst I am unable to make a definitive finding that the father threatened to kill X, I am satisfied and find that the mother believes that this was the father’s threat and this made her scared and angry.
In late 2018 X was playing with the father and lightly hitting the father on his hand. The mother deposes that both herself and the paternal grandmother were in the room at the time when the father became so angry that he slapped X across the face so hard that it left a mark on his face. Later that day the mother deposes that the father said to her “I bet you're going to call your parents and tell them that I did this to X.” The mother deposes that she did not tell anyone about this incident as she felt threatened by the father.[25]
[25] Mother’s affidavit, paragraph 120.
In cross examination it was simply put to the mother that this incident did not happen; no alternative version of events was proffered by the father. The mother was firm in her evidence that this incident did occur; the paternal grandmother was present at the time and the father told X that he needed to “learn some manners.” The mother accepted that she did not take X to the doctor on this occasion. Again, it appears to be the father’s case that the mother should not be believed if she did not report each incident of alleged family violence as and when it occurred and documented it in some form so that she had corroborative evidence. This view is outdated and is rejected in its entirety. The paternal grandmother was not called to give evidence on behalf of the father. I accept the mother’s clear evidence which was not successfully challenged that the father slapped X across his face so hard on this date that it left a mark.
Between late 2018 and early 2019, the mother deposes that she recalls three occasions where the father pushed her face and shoved her against a wall or window. The mother deposes that often the arguments revolved around the father’s affair with Ms E or from the mother wanting to move out of the home.[26] She asserted that X was present on each occasion. I am not satisfied having regard to the broad assertions and lack of detail that the mother has met her evidentiary burden to ground a finding as to these alleged incidences.
[26] Mother’s affidavit, paragraph 117.
In late 2018 the mother gave the father X’s Australian passport but not his Country C travel card. The mother alleges that the father said to her “You gave me his passport. Don’t worry I’m not going to take him right away. I will inform you before going to Country C. But I will take away X so you can understand the pain of not having the baby with you.”[27] The father conceded making this statement to the mother in cross-examination. This is yet another example of the father threating to unilaterally remove X from the mother’s care.
[27] Mother’s affidavit, paragraph 33.
The mother deposes that in early 2019 the parties had an argument about the father's alleged affair in their bedroom whilst X was laying on the bed. The mother deposes that the father pushed her into the window and put his hands around her throat so that she could not breathe properly. The father then held the mother’s neck and took her face and “hit my face on the mirror and then on the window again.” The paternal grandmother entered the room and said, “enough is enough.” The father immediately walked out.[28]
[28] Mother’s affidavit, paragraph 121.
The mother was again cross-examined as to her police statement of mid-2019 which in relation to this incident reads:
In [early] 2019, [Mr Hassen] and I were in our bedroom and [X] was lying on our bed, when [Mr Hassen] and I began to argue about his affair. I would describe our bedroom as a normal room containing one double bed. On the opposite side of the bedroom door is a glass window. During the argument, [Mr Hassen] and I were standing facing each other at the end of the bed. Suddenly [Mr Hassen] grabbed me by my head and pushed me towards the window and bounced my head off the window. I was frightened but the glass did not break, nor did I have any injuries. He moved his hands to my neck and began to squeeze. I don't remember how long he squeezed my neck for, but it felt uncomfortable. It wasn't long enough for me to stop breathing. As [Mr Hassen] had hold of my neck, [Mr Hassen]'s mother entered the room and told him to stop and said, "enough is enough". [Mr Hassen] said that its ok and we were just talking.[29]
[29] Exhibit F5.
The criminal charge of assault arising from this incident was dismissed by the Local Court.
The mother was cross-examined as to the inconsistencies in her written evidence and the police statement particularly with respect to the order in which she alleges the husband pushed her into the window and the mirror. The mother’s oral evidence was that the version of events she deposes to and what she told the police in mid-2019 are the same however “the police told me you have to be very specific.”
Significant cross examination of the mother surrounded her written affidavit evidence where, in contrast to her statement to the police, she deposes that the father hit her face into a mirror and then a window whereas the police statement asserts that the father pushed her into the window. It was the mother’s consistent oral evidence that she told the police she did not remember each and every detail of each incident and that the sentence “he hit me on the window and the mirror” are the same thing - it is her view that the meaning is the same:
I think it’s the same. He did it against the window and the mirror……
It’s the same. The window and the mirror – whatever you call it. I told them specifically.
The mother confirmed that the only mirror in the room is opposite to the placement of the window.
The father was cross-examined as to this incident by the Independent Children’s Lawyer. He conceded that the parties had an argument about Ms E on this date and that the topic of Ms E was a cause for many of their arguments. The father denied the balance of events as deposed to by the mother on this occasion.
The mother’s evidence is detailed. I accept that she used the word “mirror” and “window” interchangeably, as to her the window has a “mirror”. There is an overall consistency with respect to her recounting of this incident. The paternal grandmother was, on the mother’s version of events, present in the home during this event and intervened to stop the father’s behaviour. She was not called as a witness by the father. I accept and find that the father assaulted the mother in early 2019 as alleged by her. I find that the father pushed the mother’s head to the window. I accept that she did not come into contact with the mirror on the opposite side of the room.
In early 2019 the parties were arguing in the lounge room. The mother deposes that the father scratched her arm so hard that it left scratch marks on her.[30] In the mother’s statement made to the police she is recorded as telling the police that the father scratched her arm that broke her skin and that she bled minimally. In evidence is a photograph of the mother’s arm in which a raised scratch can be seen.[31] The mother denied in cross examination that she is simply making up this allegation.
[30] Mother’s affidavit, paragraph 122.
[31] Exhibit ICL2.
The father was cross-examined as to this incident. He conceded that there was a photograph which showed a scratch on the mother’s arm. He denied causing such injury to the mother. He did not provide any alternate reason as to how the mother obtained such a scratch. I accept the mother’s clear and consistent evidence that the father assaulted her on this occasion as alleged by her.
In the same month the mother deposes that she was sitting with her friend Ms L who was their tenant at the time. The mother deposes that the parties were discussing their marriage and the arguments they were having around this time. The mother deposes that the father said on this occasion “I'm so disturbed I'm going to do something with X.”[32] The mother was cross-examined with respect to this incident and she confirmed that this event occurred. She accepted that she did not report this incident to the police. This is a very serious allegation. There is no evidentiary context provided by the mother as to the asserted statement of the father. The parties’ tenant, Ms L was not called as a witness in the mother’s case. I am not satisfied that the mother in those circumstances has met her evidentiary burden to ground a finding that the father said this on this date.
[32] Mother’s affidavit, paragraph 123.
The mother deposes that in early 2019 she was sitting on the carpet in her bedroom. The father came into the room and the mother informed him of her intention to move out of the Suburb H property with X. She deposes that the father became angry and kicked the mother very hard on her body. X witnessed this and after the father left the room he “tried to kick me as well.”[33]
[33] Mother’s affidavit, paragraph 124.
The mother was cross-examined with respect to this incident and her statement made to the police in mid-2019 which reads:
Later that month, I was lying on the ground on top of some pillows watching a video on my phone at the end of my bed. [Mr Hassen] entered the room and told me that I was a liar and began to swear at me. He was angry at me because I had told him that I was going to find a new place and move out. As I laid on the ground, [Mr Hassen] raised his leg and kicked me. He struck me so hard that it caused me to roll over towards the wall. I was in immense pain and sat up crying in agony. [X] was in the room with me and witnessed [Mr Hassen] kick me. [X] then kicked me and walked out with father.[34]
[34] Exhibit F5.
It was put to the mother that she failed to include in her written evidence that the kick caused her to roll over toward the wall and that she was in immense pain and sat up crying in agony. The mother repeated her oral evidence that “the police asked me in detail, that’s why I gave the full statement to the police… the police asked me in detail question after question.” The mother was then challenged on the basis that her written evidence reads that X “tried” to kick her whilst the police statement notes X did kick her. The mother repeatedly confirmed that X did kick her on this occasion. She did not accept there was a difference in these versions of events.
Again, English is the mother’s second language. She gave detailed and coherent evidence that her reporting to the police is different to her written affidavit as the police asked her numerous questions to ensure that her statement was detailed. She was firm and unequivocal in her evidence as to the effect on her of the father kicking her and that this action was repeated by X. I place little weight on the discrepancy in these circumstances between the mother’s reporting to the police and her written affidavit. I accept and find that the father perpetrated a physical assault upon the mother in early 2019 by kicking her, causing her immense pain. This assault was witnessed by X who then imitated the father’s action by also kicking the mother.
The mother was cross examined about her statement to the police that the father threatened to harm X in early 2019. The mother conceded that this allegation is not deposed to in her written affidavit. She denied that it is not in her affidavit as is it is an untruth. She further denied that she does not hold fears that the father will kill X. It was the mother’s oral evidence that she later told a previous lawyer of this threat when she went to him to obtain assistance in having X returned to her. The lawyer was a male lawyer from Country C who is a Muslim. He told her that he did not give weight to the father's threats as in Country C father’s tend to threaten to mother that they will do something to the child but they don't. This is referred to in paragraph 147 of these reasons. The mother deposes that even her lawyer in Country C said the same thing. She confirmed that neither of her male lawyers were taking her alleged threats seriously.
It is unfortunate that the solicitor’s file was not subpoenaed by either of the parties. In circumstances where this incident is not deposed to at all by the mother in her affidavit I am not satisfied she has met her evidentiary burden to ground a finding as to the alleged threat made by the father specifically in early 2019.
In early 2019 the mother refused the father’s request to provide him with X’s travel card.
The mother deposes that the father was unhappy about her plans to move out of the home with X and they had exchanged various text messages about this. The father conceded that in early 2019 he sent the mother a text message stating:
I’ve made up my mind to treat you well and said sorry
Now you will fuk [sic] my mind again if you go
Stop playing with [X]’s life.[35]
[35] Mother’s affidavit, paragraph 35.
When the father was asked what he meant with respect to treating the mother well his response was “I was not talking to her…it was the same dispute that she was going to take X away so I said I would be nice and start talking to her again.” The father did not concede that this message was threatening to not treat the mother well if she left the home; stating “I was just angry.” I accept and find that this was a threat by the father to not treat the mother well if she left the home.
The mother deposes that in early 2019 she was asleep on the lounge in the lounge room. The father entered the room, woke her up and told her that he was no longer having an affair. The father then asked the mother if she wanted to have sexual intercourse with him and she said no. The mother deposes that despite saying no, the father tried to cuddle her on the lounge, and she pushed him off her. The father then scratched her.[36]
[36] Mother’s affidavit, paragraph 125.
The mother was again cross-examined as to her police statement in mid-2019 with respect to this incident which reads:
[In early] 2019, I was sleeping on the sofa of our lounge room. [Mr Hassen] sat down and started a conversation with me. He asked me why I was moving out and told me that he had left [Ms E]. He then told me that he wanted to have sex with me. I told him no and asked him to leave me alone otherwise I would call the Police. At this time [Mr Hassen] was standing over the top of me when he leant in and attempted to cuddle me. I pushed him away using my hands and told him it was too late in the night. He placed his hands on the left-hand side of my [body and] scratched his hands across my [body]. I felt an instant sharp pain in this area…it left two red marks.[37]
[37] Exhibit F5.
The mother was challenged as to the difference in the description in her affidavit and the statement made to the police. It was put to the mother that she did not make reference to her body being scratched in her affidavit and her response was that she placed her hand on her body to show the police officer where she had been scratched and she thought this was her body part. It was put to the mother that she had simply made this allegation up to gain an advantage in these proceedings. The mother firmly denied this.
In cross examination the father simply denied that this occurred.
The father does not dispute that during his intake session with the K Contact Service he told the contact worker that a friend had told him that the mother wanted the father to “forcefully have sex with her” but after speaking with friends and receiving advice from them that if he did this he was “stupid”, he did not do so. This friend is not on evidence.
I am perplexed as to why the father felt it necessary to say these things to the contact centre worker. He does not provide any evidence as to his reasoning why. It was not put to the mother that she had told the friend that she wanted the father to act in this way. His motive in saying these things to the contact centre worker is incomprehensible and disquieting.
The mother’s oral evidence was detailed and responsive. It did not appear to be rehearsed. Her assertions have an overall consistency. I accept her unchallenged evidence as to the mother thinking that the position of her injury would be classed as her body, again noting that English is her second language. I accept and find the mother’s evidence as to this incident.
In early 2019 the mother and X moved out of the Suburb H property into a rental property. The mother deposes that she did not tell the father the address of her new home as she was scared he would harass her. The father did not dispute that he told the contact worker at the intake session that the mother told him to not follow or stalk her as she did not want him to know where she was living. The father reported that they argued about this at first as he did not understand why he could not know where the mother lived but he eventually agreed, and the mother moved out.[38]
[38] Exhibit M8.
The father concedes that at 5:20am on this day he sent the following text message to the mother:
I m telling you again and again don’t go
Try to forget the past and live normally
[X] needs both mother and father together
If u go u will fuck my mind again
And a minute later the father sent the mother a further text message:
U r a very selfish person that doesn’t care about your son
Disgusting mom u r.[39]
[39] Mother’s affidavit, paragraph 37.
On 3 April 2019 the mother took X to the father's house to spend time with him and the paternal grandmother. The mother deposes that whilst she was at the father's house the father began yelling at her calling her a “bad girl” and “prostitute.” The paternal grandmother told the father to stop such behaviour and the father then whispered to the mother “I’m going to put your porn videos on the website. Just wait.”[40]
[40] Mother’s affidavit, paragraph 126.
The father was cross-examined as to this incident. He denied the entirety of the event as deposed by the mother. It was simply put to the mother that this event did not happen. The mother was firm in her reply that it did. I am satisfied having regard to the detail of the mother’s evidence and the similarity of a situation where the paternal grandmother is present and intervenes to tell the father to change his behaviour that it is probable that this incident occurred as alleged by the mother and I so find.
It is not disputed that between 1 April 2019 and 17 April 2019 the mother facilitated X spending regular time with the father; on one or two occasions overnight. This occurred at either a park or at the father’s home.
The mother did not facilitate X seeing the father on 5 April 2019 as she had an injury and could not take him to see the father. Upon being shown the text message in cross examination the father conceded that on 6 April 2019 the father sent the mother a text message that said:
Have some manners bitch u don’t let me see my son u r a fucking bitch. [41]
[41] Mother’s affidavit, paragraph 38(d).
The father conceded in cross examination that this was not an example of him treating the mother well and then stated, “I’m really sorry about this.”
The mother deposes in early 2019 the father called her to ask if he could have X for the night as he was not working, and the father wanted to take X to a party. The mother agreed to drop X off to the father at a railway station at 2:30pm. At approximately 9:30pm that evening the mother deposes the father called her and they had the following conversation:
FATHER: We are done, I want to go and work, come and pick up [X] from the station. Or else tell me your address and I will drop him.
MOTHER: No I won’t tell you my address.
FATHER: If you don’t pick him up, I’ll just drop him off anywhere I like. You are not going to talk badly about me or my family. [X] is with me, I’m going to do something to [X].
The mother then attended the railway station to collect X. She deposes that upon meeting the father he yelled at the mother and said, “you are a prostitute, I shouldn’t have married you. I should have used you like a tissue paper and thrown you away.” The mother deposes that the father then sat in his car in front of the mother whilst she was waiting for a lift home after having called a taxi. The mother became uncomfortable and so moved onto the train platform when the father entered the station and attempted to repeatedly call the mother whilst he watched her. The mother did not answer the phone. The father waked down on the platform opposite the mother and shouted to her in Country C: “Don’t worry, I am going away OK” and then left.[42]
[42] Mother’s affidavit, paragraph 39-42.
The father was cross-examined as to this incident. He accepted that he asked the mother on this occasion if he could return X to her care so that he could go to work. The father accepted that he met the mother at the train station at 10:00pm when X was two years of age. The father denied calling the mother a prostitute or telling her that he should not have married her. His oral evidence was that it was very dark when he handed X over and so he stayed to see that the mother was safe on the train platform. He denied stalking or intimidating the mother on this occasion.
The cross examination of the mother as to this alleged incident was brief. It was put to her merely that the father did not call the mother a prostitute and did not stalk her. The mother was not successfully challenged on her firm evidence that the father did act as deposed to by her.
COUNSEL: In paragraph 40 of your affidavit, you say he says I’m going to do something to [X] and you say to the court now he said I’m going to harm the baby.
MOTHER: I can understand what he was telling me in my language, but when it is translated there is some difference. He was telling me on the phone and when I was living with him – I’m going to harm him, I’m going to do something with him so I was telling this.
COUNSEL: So you’re saying it’s a translation problem.
MOTHER: I speak what I know.
COUNSEL: The words im going to harm the baby are a translation issue.
MOTHER: Yes.
COUNSEL: That conversation didn’t take place. He didn’t say I’m going to harm the baby or I’m going to do something to [X].
MOTHER: No that is incorrect, it happened.
The mother unequivocally and firmly asserted at various times during the course of her cross examination that the father would threaten to harm X on multiple occasions and not only the alleged threat made in early 2019 that has been dealt with earlier in these reasons. The mother makes allegations that the father has threatened to harm, and on some occasions to kill X. Whilst I have recorded and (for the most part) made findings as to specific incidences and allegations made by each of the parties as to the perpetration of family violence, it is necessary when considering and making findings as to the perpetration of coercive and controlling behaviour to look at the evidence as a whole – not just through the lens of one incident at a time in isolation to the balance of the evidence. In Britt & Britt (2017) FLC 93-764 the Full Court at [34] observed that:
[T]he probative value of a particular piece of evidence should not be considered in isolation from the rest of the evidence, including the proposed evidence. This is particularly so where the court is asked to draw an inference from all of the evidence, that is to say, all of the circumstances of the matter. This is because one piece of evidence may affect the probative value of another and a number of pieces of evidence when considered together may have a probative value greater than if each is considered individually.
The mother conceded that she did not go to the police but she “should have.” Much was made of the mother’s actions in allowing X to spend unsupervised time with the father despite these alleged threats. It was constantly put to her in cross examination that the mother allowed the father to spend unsupervised overnight time with X right through 2019 and 2020.
COUNSEL: You stayed in that house with [Mr Hassen] and you then, gave him right throughout 2019 up until he left Australia and 2020, unsupervised time, overnight.
MOTHER: Yes, because he threatens to kill the baby whenever I say something to him. That’s what he used to do. He used to use it against me like, whenever I would say something to his family [he would say] oh I’m going to do something to [X], or if you don’t give me the passport I would do something to him. That was his usual sentence he used to use.
COUNSEL: He never used those words.
MOTHER: He did.
COUNSEL: If he has used those words you would gone to the police because you would have been very concerned about your child being killed by [Mr Hassen].
MOTHER: I should have done that.
COUNSEL: You didn’t do that because it didn’t happen, and you were never, and you still are not, concerned about the safety of your child whilst in his care.
MOTHER: I am concerned. He’s the one that used that word again and again.
Again the mother was cross examined on the premise that by entertaining these options it ought to follow that she held no concerns for X in the care of the father. Such questioning fails to understand the nuance of the mother’s evidence. She felt that X was safe only if she allowed X to spend time with the father as this was what the father wanted. She didn’t feel X would be safe if she didn’t allow such time. she did so because the father threatened to kill X – thus she allowed time so that the father would not hurt X: “Yes he threatened to kill the baby. He would always use it against me.”
The mother further clearly deposes that: -
Whilst I had some reservations about allowing [X] to spend time with [Mr Hassen], I was concerned about causing further trauma to [X] by not allowing him to see [Mr Hassen]. I was also fearful that [Mr Hassen] would physically or mentally harm me if I did not allow [Mr Hassen] to spend some time with [X]. I was also concerned that [Mr Hassen] would spread rumours about me in the local [Country C] community in Sydney.[43]
[43] Mother’s Affidavit, paragraph 80.
I accept the mother’s clear and consistent evidence in this regard. I accept and find the mother’s consistent written and oral evidence that the father would threaten to harm X if the mother did not accede to his wishes and she thus allowed X to spend time with the father so that he would not do so. I accept that the mother acted out of fear for X’s safety.
The mother deposes that after this incident she felt scared of the father and did not want him coming near her or X. She told the father over the phone that “I won’t let you meet X again. If you want to see him, you can go to court and get an order.” The mother then blocked the father on social media however she asserts the father continued emailing her which made her feel pressured.[44] The mother did not facilitate time between X and the father from 20 April 2019 to 12 May 2019.
[44] Mother’s affidavit, paragraph 44.
The father conceded in cross examination that on 27 April 2019 he emailed the mother:
I should have valued you and give you the honour and respect u [sic] deserve… I lost my temper and personality.[45]
[45] Mother’s affidavit, paragraph 45.
The father further conceded that he sent emails to the mother in mid-2019 and in one such email he stated:
I don’t want you to use bad things I’ve said when I was angry against me in court… and then I’ll have to live with that for my entire life.[46]
[46] Mother’s affidavit, paragraph 46.
The father’s oral evidence about these emails was improbable. He would not concede that in these messages he was apologising for his past behaviour but asserted that they were just “general emails.” He would not concede that his reporting to the mother that he had “accepted his mistakes” were referring to him assaulting or stalking the mother but rather his mistakes “overall.” The father then stated: “You should also realise she did not try to make everything right…it is both of our fault.” I find the father’s explanation for such clearly worded emails to be vague and inherently unbelievable. He clearly concedes that he has lost his temper with the mother and I so find. He clearly concedes that he has said bad things when he has been angry with the mother and I so find.
I am satisfied having regard to the clear, detailed and consistent evidence given by the mother that the father has threatened to harm X in order to have the mother behave as he wished. I accept and find that after one such a threat she ceased time with the father from April to May 2019.
I am not satisfied that these are genuine concerns held by the father when at the same time he seeks that X live with each of the parties on a week about basis.
The father reported to the Court Child Expert that he is concerned that the mother's mental health affects her parenting capacity. He asserted that the mother's doctor had said that the mother is “not physically and mentally capable of taking care of X”. He stated that the mother is not “stable”.[88]
[88] Family Report, paragraph 59.
There is no evidence to support any finding that either party is living with mental health issues that would affect their ability to care for X.
The father alleges that the mother refers to Mr D as the father and the father as X’s stepfather. This is denied by the mother, who deposed in cross examination that after a visit at the contact centre with the father X told the mother in the car that the father had told him that he is his father and Mr D is the stepfather and X wanted clarification, which she provided. The mother’s evidence was not challenged and I accept it.
Mr D readily deposed during his cross-examination that he told the Court Child Expert that if the court orders that X spends time with the father, he and the mother would propose that X live with the father and spend no time with the mother. He stated to the Court Child Expert that the father “has an evil mind” and his actions will “ruin” the relationship between himself and the mother. He further stated that the father would use X to hurt the mother, and thus X living in only one house would ultimately be better for X as he would not be divided by the father's actions.[89]
[89] Family Report, paragraph 54.
Mr D disagreed with the proposition put to him that this position meant that he had no concerns for the safety of X if he were to spend time with the father rather, “the reason behind this statement is for the safety.” He deposed that it was his view that if X spends time with the father, then he should spend no time with the mother and himself. When questioned again he again confirmed that he does care for X and has concerns about his safety. The following exchange was enlightening:
COUNSEL: You have no concerns for his safety.
[MR D]: Of course I do.
COUNSEL: The fact is, if the father gets time with the child, then it’s your view that you and the mother should have no time with the child.
[MR D]: Yep.
COUNSEL: In you taking that position, you have no concerns about the safety of [X] in the care of [Mr Hassen].
[MR D]: I have concerns.
COUNSEL: Well, you wouldn’t say to the reporter that he live full time with the father.
[MR D]: Because there is no actual harm if [X] is living in one home. Because if he will become a football like from one house to another, he will be apart from those issues between two families then the safety of [X] is concerned. Then he will be used to manipulate the other party. But if he will be staying at one house, which is preferable, like live with his mother, then there is no safety concern. I believe that if he lives at one place. The best thing would be if he lives with the mother. The second best would be for him to live at least one place.
The Court Child Expert’s opinion that Mr D’s position with respect to X’s residence came from a place of desperation was unchallenged and I accept it:
COUNSEL: Clearly, this [[Mr D]’s position] indicates that [Mr D] did not consider the father physically harmed or would physically harm the child.
COURT CHILD EXPERT: I can’t answer what [Mr D] was thinking but that’s not how I took it at the time. I believed it was a desperation in terms of the behaviour they were seeing from [X] when he was, in their allegation, manipulated by the father or the mother and [Mr D] were denigrated by the father. I took it that he was not wanting [X] to be put in the middle and that was the desperate solution.
I further accept that Mr D’s stated position is to shelter X from being manipulated by the father if he was required to spend time and move between the parties’ households.
DETERMINATION
Parental Responsibility
As the court is being asked to make orders as to parenting, the first question to be determined is whether the presumption in s 61DA(1) of the Family Law Act 1975 (Cth) (“the Act”) that it is in the best interests of the child that the parents have equal shared parental responsibility is rebutted as there are reasonable grounds to believe one of the parties (or a person who lives with a party) has engaged in abuse of a child or family violence.
Having regard to the findings made above as to the perpetration by the father of family violence upon the mother the presumption is rebutted.
Pursuant to s 65DAC of the Act, an order for equal shared parental responsibility requires the parents to make together (and jointly) decisions about major long-term issues affecting the child. The mother reported to the Court Child Expert that she and the father do not have a co-parenting relationship, with no communication occurring between them. It was the mother’s clear oral evidence that, “whenever I have shared responsibility with him – he makes me feel disturbed.” The father confirmed this and stated that this is “one less problem” for him.[90]
[90] Family Report, paragraph 62.
Further, having regard to the findings of family violence made above including the tone and tenor of the father’s communications with the mother which are derogatory and insulting, I am not satisfied that it is appropriate for the mother to be required to communicate with the father in an attempt to reach a joint decision regarding X’s long term parenting arrangements. The untenable nature of requiring the mother to do so in light of the findings made above is the father’s assertion that the mother is lying when she says she is afraid of him. Further, it is uncontroversial that the parties have not communicated at all for a number of years. The parties have not been able to reach any agreements as to X’s care during the course of these proceedings.
It was the Court Child Expert’s opinion that it is unlikely the parties will be able to develop a cooperative co-parenting relationship given the perpetration of family violence by the father upon the mother and recommended that the mother have sole parental responsibility for X. The Court Child Expert affirmed her opinion in this regard during the course of her oral evidence.
I am satisfied that, having regard to the orders made below as to the time that X spends with the father, that the mother should be allocated sole parental responsibility.
X’s Live With and Time With Arrangements
Despite his various serious allegations as to the risks arising to X in the mother’s care, the father accepts and actively seeks that X live with the mother in an equal shared care arrangement. I have not made any findings that there are risks to X continuing to live with the mother.
The issue for determination thus becomes what time, if any, X should spend with the father. I must therefore undertake an assessment of the potential risk of harm to X were he to spend time with the father. The assessment of risk requires the consideration of two elements; the consideration of whether it is likely that some harmful event will occur and then a consideration of the severity of the impact caused by such harmful event. I must assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable: M & M [1988] HCA 68. The assessment of unacceptable risk is a predictive exercise, postulated from known facts and present circumstances. It is not required to be proven on the balance of probabilities: Isles & Nelissen [2022] FedCFamC1A 97. The Court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which are proved to that standard. The concept of “unacceptable risk” falls within the broader issue of determining what is in the child’s best interests and to which the resolution of the existence of an “unacceptable risk” is subservient: see M & M [1988] HCA 68 and B & B [1993] FamCA 143.
The Court Child Expert did not agree with the father's proposition that as a result of the criminal charges and the Apprehended Domestic Violence Order being dismissed that her recommendations could change such that X should spend time with the father. It was the Court Child Expert’s clear and unequivocal evidence that a consideration could be given to X spending time with the father if:
·the father's was able to support X’s relationship with the mother;
·the risk of the father making unfounded allegations was ameliorated; and
·the court found that the father did not perpetrate family violence.
I accept the court child expert’s unchallenged opinion in this regard. Thus, it is not simply a consideration of whether the father has been found to have perpetrated family violence that will ground a determination as to whether spending time with the father is in X's best interests but rather a more nuanced approach is required, with a consideration of the various factors as set out above.
I accept the Court Child Expert’s unchallenged opinion that in the absence of unacceptable risk X is likely to benefit from maintaining a positive and loving relationship with the father.
For [X] a relationship such as this relationship is likely to impact his self-esteem, how he views himself, his confidence and his relationships in the future. [Mr Hassen] would be able to assist [X] during his development by providing open and loving interactions and allowing [X] to discuss what is occurring in his life, including what occurs in [Mr Hassen]’s household.[91]
[91] Family Report, paragraph 74.
The father even on his own evidence has perpetrated family violence upon the mother. I have found further instances of family violence occasioned by the father upon the mother both during the relationship and post-separation. Such family violence included sexual, physical and verbal abuse including:
·The father scratching the mother.
·The father kicking the mother in the presence of X.
·The father slapping X so hard that it left a mark on his face.
·The father slapping the mother on the face with an open hand and hitting her with an object.
·The father pushing the mother’s head into the window in their bedroom.
·The father slapping the mother and X on the leg leaving finger marks.
·The father calling the mother a prostitute and a fucking bitch.
·The father telling the mother she had ruined X’s personality.
·The father threatening to publicise explicit content of the mother.
The father engaged in coercive and controlling behaviour, again both during and post-separation including: -
·The father removing X from Australia and not allowing the mother to see him for a period of 10 months.
·The father attending upon the mother’s home knowing she did not want him to know her home address.
·The father sending the mother a multitude of emails correspondence.
·The father intimidating the mother, Mr D and Mr D’s family by making reports to authoritative bodies and the Country C community about their relationship which resulted in threats being made to Mr D and his family.
·The father threatening that neither party will have X in their care and that the mother that will have no peace or satisfaction.
·The father offering to show a contact worker explicit content of the mother.
Both parties have unilaterally removed X from Australia. This does neither party any credit. To simply find however that each party has acted in a manner that is not child focussed is too simplistic. The actions of each of the parties must be seen in context. The Court Child Expert opined that X appears to be placed in the middle of the conflict with each parent taking him to Country C without permission from the other parent.
There is no allegation made by the father that the mother did not maintain contact with him during her time overseas, noting as opined by the Court Child Expert that due to X’s age at the time, it is likely that he was only speaking a few words and was unlikely to meaningfully participate in a telephone or video call.
In contrast, it is the mother’s clear evidence that during the father’s time overseas with X he prevented her from maintaining contact with X. The father maintains that the mother was not interested in contacting X. I do not accept the father's assertion in this regard having regard to the lengths the mother went to have X returned to her care.
In a situation where coercive and controlling family violence is happening, the perpetrator utilises a variety of tactics including psychological abuse, restriction of movement and contacts, and incidents of actual harm to cause a victim to feel fear and intimidation, which leads to submission or compliance by the victim and, on some occasions, the victim can respond with violence.[92]
[92] Ibid.
I accept that the mother left Australia with X as she felt overwhelmed. I accept and find that the father’s actions in removing X from Australia and not allowing the mother to see him for a period of 11 months is a further example of the father acting in a coercive and controlling manner.
Whilst I have made no findings that the mother has perpetrated family violence, even if such findings were made, the Court Child Expert opined that the father's account of the mother's behaviour could be indicative of conflict instigated violence, however the reported behaviour appears to be most consistent with violence resistance behaviour; that is, defensively responding to violence instigated by the father. I accept this unchallenged opinion.
In matters concerning the welfare of a child, family violence and the effect of exposure to family violence must be considered and given weight: Zuen & Lhao [2020] FamCAFC 84 citing B & K [2001] FamCA 880. The Court Child Expert clearly articulates the risks associated with a child spending time with a perpetrator of family violence:
Exposure to family violence, including witnessing and/or hearing incidents of family violence or being cared for by a victim-parent whose parenting is impaired as a consequence of the perpetrator’s choices and actions, is known to have a detrimental impact on children. Exposure to family violence can be experienced as traumatic by children, irrespective of the age at which the exposure occurs, which can contribute to a range of psychosocial and relational difficulties, including an increased risk of emotional and behavioural disturbance for a child or a child engaging in interpersonal relationships that feature family violence.
There is of course the risk that the child themselves will be exposed to further perpetration of violence, either towards the victim-parent or the perpetrator’s new partner. As clearly articulated by the Full Court in Blanch & Blanch & Crawford [1998] FamCA 1908, such exposure raises the serious dangers that children can:
…suffer insecurity, fear, unhappiness, anxiety and hypervigilance from witnessing abusive behaviour of a parent. Such effects present a threat to their emotional development.
Probably the worst danger to children is the role model that a violent parent provides which can lead to children themselves coming to suffer the serious social disability of using violence in their dealings with other people including those they love. Such a disability can destroy the most intimate relationships and bring the person into conflict with other people, the police and the law…
The Court Child Expert opined that the allegations made by the mother to her as to the father's conduct appears to be consistent with violence that is aimed at coercing and controlling the victim parent and that:
There is concern, if it has veracity, about the potential lethality of [Mr Hassen] choking [Ms Mawad].[93]
[93] Family Report, paragraph 72.
I accept this unchallenged opinion. In light of my findings made above, the risk of lethality at the hands of the father is thus a serious risk for the mother.
The following exchange took place during the course of the hearing:
HER HONOUR: The mother gives evidence of an incident in [early] 2019 whereby she asserts that the father kicked her in [X]’s presence and subsequent to that [X] who had observed that assault take place walked over to the mother and effectively mimicked the father’s actions in attempting to kick her as well. If I find that incident occurred, both the assault by the father and the mimicking behaviour by [X], is there any comment you would like to make, or anything you can opine about that alleged incident?
COURT CHILD EXPERT: It is very common for children to copy behaviour of their parents or what they have seen, and it may be a child trying to maintain the relationship or do what one parent wants because they are trying to make that parent happy. Witnessing violence is very detrimental on a child’s wellbeing. It affects their brain development; it puts them in a space of fear and that negatively affects their development because a child fundamentally needs to feel safe to develop appropriately. It impacts the risk of having a mental health disorder so depression or anxiety are more common, they can have physical complaints, their sleep and relationships with others. So being witness to that is very detrimental to a child’s wellbeing.
I accept this unchallenged evidence.
The Court Child Expert clearly opined that if it is determined that the father is perpetrating coercive controlling violence to the mother and/or there is ongoing conflict between the parties, the negative consequences of this on both X and the mother are likely to outweigh the benefit of X maintaining a relationship with the father:
In this instance, [X]’s well-being is likely to be negatively affected. It could increase the chance of him experiencing depression and anxiety, it could increase his emotional distress, and negatively affect his self-esteem and his social relationships. It would also likely negatively affect [Ms Mawad]’s parenting ability due to her increase in distress and this in turn would negatively affect [X].[94]
[94] Ibid.
The Court Child Expert was not dissuaded from this opinion during the course of cross examination and I place significant weight on it.
The Court Child Expert’s evidence was that the father’s non admittance of the perpetration of family violence upon the mother despite admitting to sending verbally abusive texts to her demonstrated a lack of understanding on his part that violence does not only constitute physical actions. Further, the Court Child Expert opined that if someone does not take responsibility for their actions it reduces their capacity for change and the consequences of this can be long term.
I accept and find that the father has not taken responsibility for his perpetration of family violence upon the mother and X. The interim orders of 19 November 2020 required him to enrol into a Men’s Behaviour Change Program. He enrolled into such a program but did not complete it as he was not accepted – it was the father’s evidence that he told them he would “not be guilty in the court” and he told them he had not been violent. The Court Child Expert opined that if it is determined that the father has perpetrated coercive and controlling violence it would be recommended that he attend a Men's Behaviour Change Program. However:
…this is unlikely to result in meaningful change if [Mr Hassen] maintains his position that he has not acted in this fashion and hence takes no responsibility for his behaviour. In this circumstance, [X] spending time with [Mr Hassen] should not be contingent on [Mr Hassen]’s engagement with such a program, but rather with his ongoing demonstration of significant behaviour change including taking responsibility for his past behaviour choices.[95]
[95] Family Report, paragraph 75.
The Court Child Expert opined that the highly acrimonious parenting relationship (which may be reflective of a dynamic of coercive controlling family violence perpetrated by the father) appears unlikely to improve in the future and certainly not at a rate that may be developmentally protective of X. She further opined that it appears that X will not be able to enjoy a relationship with each party into the future without being exposed to high levels of parental conflict and further allegations as to problematic care or abuse which, overtime will negatively impact on X’s development, wellbeing, mental health and capacity to establish and maintain satisfying relationships.[96]
[96] Family Report, paragraph 81.
The Court Child Expert developed her evidence in this regard during the course of cross examination and deposed that the negative impacts on X could include his engagement with school, his learning, and sleep which would affect his wellbeing with children being more prone to stomach aches, headaches, feeling unwell and nauseous, and not meeting their milestones. It can further affect how their brain develops if they do not believe they are safe when exposed to conflict, adrenaline and cortisol and this can impact on their nervous system. It would further negatively impact X’s capacity to maintain satisfying relationships and friendships as, generally, a child does not have the capacity to allow for positive and meaningful friendships because they believe that people are going to leave or hurt them.
I accept this unchallenged expert opinion. I further reject the notion that the parties’ relationship is an acrimonious one as this imports a mutuality of behaviour by each of the parties. I accept having regard to my factual findings as to the father’s behaviour that the parties’ parenting relationship is reflective of a dynamic arising from the father’s controlling family violence.
It is significant that the Court Child Expert did not ground her recommendations solely on a determination as to whether the father has perpetrated family violence. She reiterated during the course of her oral evidence that she holds numerous concerns as to the father’s ability to support X’s relationship with the mother. These concerns are held despite the father's outstanding criminal charges being dismissed.
I have made findings above as to the father's denigration of the mother and Mr D to X. The Court Child Expert’s unchallenged evidence is that acting to negatively influence X against the mother who is a capable and loving parent can have negative effects on X’s wellbeing and is a form of abuse to X. Further:
It can engender low self-esteem and self-hatred in the child, with them thinking that there is something wrong with them that their parent does not love and care for them. It can also cause a child to have difficulty trusting others and increase the chance that they will experience anxiety and depression.[97]
[97] Family Report, paragraph 77.
I accept this evidence.
The Court Child Expert opined that there is a potential negative impact for X on losing an important relationship with the father but the weighty issue for her was the safety of X and the father's ability to support X’s relationship with the mother's family in a positive way. The Court Child Expert opined that if the father is unable to support such a relationship then “the benefits do not outweigh the risks that presents.” I place significant weight on this expert opinion.
The Court Child Expert’s evidence that such behaviour would appear to be a continuation of coercion and control in attempting to incite fear and negatively affect the mother's relationship with Mr D was uncontested and I so find. It was the Court Child Experts clear and unequivocal opinion that if this is found to have veracity it would be recommended that X spend no time with the father.
It was the mother's oral evidence that she is not comfortable with X spending any unsupervised time with the father and would only be comfortable when X reached an age where he understands that he cannot be manipulated or coached.
Mr D gave coherent, clear and firm oral and written evidence as to his concerns should X spend time with the father in the future. Having regard to my findings made above, his concerns are legitimate and accepted. Mr D deposes that he is concerned that the father has used X to manipulate and control the mother and the decisions they make in their family. For example, the father has sent the police to the mother’s home three times as they had received information that there was a child abuser at the house. Mr D believes that the father will continue to use X to manipulate their family in the future if X spends time with the father by either directly manipulating X or making anonymous accusations to authorities such as the police, child protection and immigration. Mr D believes that the father will encourage X to question the mother and Mr D's authority at home.
If [Mr Hassen] was a good person, we would be more than happy for [X] to spend time with his father on a regular basis, however [Mr Hassen]'s behaviour to date has not shown this. [Mr Hassen]'s manipulative behaviour will affect [Ms Mawad] and [X]s mental health and [Mr Hassen] continued manipulation through [X] before September 2020 created a lot of distress for [Ms Mawad] and in our family life…….
I am concerned about future allegations that [Mr Hassen] might make about my relationship with [X], as I believe that [Mr Hassen] will not stop until he gets what he wants and that I will have to continue to prove myself time and time again to people like child protection and the police.[98]
[98] Mr D’s Affidavit, paragraph 52 and 53.
I accept and find that Mr D’s stated concerns in this regard are reasonable having regard to my findings made above as to the possibility that the father has made an allegation not based on any disclosure made by X.
I am satisfied having regard to the findings that I have made above that the risks that arise for X were he to spend any time with the father in the future are multi-faceted. They are the risks arising to X from: -
·the father being the perpetrator of serious family violence including the perpetration of coercive and controlling behaviour and his inability to take responsibility for his actions;
·the impact on X of the likely exposure to continued conflict between the parties as a result of the father’s behaviour;
·the inability of the father to support X’s relationship with the mother and her role as X’s mother;
·the potential psychological damage of exposing X to further allegations made by the father arising from his care in the mother’s household; and
·the potential undermining by the father of the mother’s parenting capacity and the negative impact this would have on the mother’s parenting capacity.
I accept and find that cumulatively the above risks present an unacceptable risk of harm to X were he to spend time with the father.
The question then remains if such a risk could be ameliorated so that the risk is acceptable. The mother gave evidence that she did not have difficulty with X spending supervised time with the father but was concerned as to such time graduating to be on an unsupervised basis. It was the Court Child Experts clear and unequivocal evidence that indefinite supervision of X’s time with the father is not ideal as it is not a natural environment and that: “if they need long term supervision then is the relationship beneficial or more damaging?”
Whilst the making of orders for supervised time is an exercise of discretion, the Full Court has given specific guidance where such orders are to be made for an indefinite or indeterminate period: see Moose & Moose [2008] FamCAFC 108. Clear reasons are to be provided when such an order is made: Gorman & Huffman & Anor [2016] FamCAFC 174.
The following evidence was given by the Court Child Expert:
HER HONOUR: Paragraph 81 of your report suggests to me that for you, a serious consideration was the high conflict between these two parties and how [X]’s continued exposure will have negative effects upon him. Is it your opinion that those negative effects of that high conflict relationship, if I’m to find that, could not be sufficiently ameliorated by supervised time continuing?
COURT CHILD EXPERT: No, the experiences that were told to me and the examples of the behaviour including [X] being taken on an overseas and not being able to communicate with the other parent. There seemed to be a number of examples of the inability of the parents to coparent effectively. [Ms Mawad] was driven by fear due to her report and that will impact [X]’s wellbeing going forward.
I accept the Court Child Expert’s unchallenged opinion in this regard.
There is no evidence as to the practical nature of how such long-term supervision time would occur including the payment of same in circumstances where neither party is employed. I cannot make determinations as to X’s best interests in an evidentiary vacuum. The Court Child Expert did not agree that supervision would sufficiently ameliorate the risks of harm to X spending time with the father. I cannot make an order on the evidence before me that long term supervision of X’s time with the father is in his best interests. Thus I can not be satisfied that the unacceptable risk of harm to X arising from him spending time with the father can be sufficiently ameliorated by such time being supervised.
ANCILLARY ORDERS SOUGHT BY THE MOTHER
The father conceded in cross examination that he has in his possession X’s Country C travel card, his birth certificate and passport.
The mother also sought orders which would permit her to obtain a travel document for X without first obtaining the consent of the father. The holding of sole parental responsibility does not entitle that party to obtain a passport for children absent the consent of the other parent. Where orders are to be made that X spend no time with the father, it is proper for the mother to be able to obtain a passport for X without the consent of the father and to be able to travel with him as she wishes. In these circumstances, it is also appropriate that X’s name be removed from the Family Law Watch List as sought by the mother.
It was the mother's oral evidence that to apply for a travel card both parties need to sign for X. It is not possible for her to apply without the father's consent.
ANCILLARY ORDERS SOUGHT BY THE FATHER
The father seeks an order that the parties share the equal cost of parenting including schooling, medical or any sports activity that X is enrolled in. The court was not advised of the head of power relied upon to ground such an order being made. The order sought was not the subject of evidence nor submissions by the father. In those circumstances, I refuse to make the order as sought.
The father further seeks an order restraining each of the parties from relocating further away from each other without agreement and that “if there needs to be a move” that it be no further than 30 kilometres from the other party's residence. Apart from the draconian nature of the order sought, it is vague and unenforceable. In any event, in light of the findings made above such an order is not in X’s best interests and will not be made.
The father seeks a raft of orders regulating the parenting of X including but not limited to:
·Both parties and their partners being at liberty to attend all activities relating to X;
·an order requiring the parties to ensure that X attends all such activities with each party being permitted to enrol X in activities it appears during the times that he is with the other party;
·the provision of school and medical records and the attendance by each of the parties at medical appointments;
·the parties being at liberty to seek professional medical or psychological support for X.
If X is to spend time with the father, the Court Child Expert opined that this should not preclude the father from obtaining information about X’s school and medical conditions or concerns about X’s wellbeing. If it is determined however that X would be at unacceptable risk of harm if he was to spend time with the father, the Court Child Expert recommended that there be no obligation for the mother to share information with the father.[99]
[99] Family Report, paragraph 83
In light of the orders and findings made above I refuse to make such orders as they are not in X’s best interests. Further there is no evidence to support for example, the necessity for X to obtain psychological support.
THE COSTS OF THE INDEPENDENT CHILDREN’S LAWYER
The Independent Children’s Lawyer at the conclusion of the trial sought that the father contribute to the costs of the Independent Children’s Lawyer in the sum of $9,003.50. No contribution is sought from the mother in circumstances where she is legally aided.
The father does not submit to the court that he would suffer financial hardship if he was ordered to contribute to the costs of the Independent Children’s Lawyer; merely that no application was made for the mother to so contribute and the parties are likely to be in similar financial circumstances as they are both first generation Australians from Country C. I reject this submission.
Whilst the father submits that he has a modest income and his weekly income as a self-employed person and expenses both total $400, the father’s legal representatives in this matter are privately funded. The Notice of Costs filed by his solicitors on 12 February 2024 record that as at that date the father had paid $84,478.17 in legal fees. The source of such legal costs was recorded as “income and personal funds.” In any event, even if the father has limited financial resources, financial impecuniosity is no bar to the making of an order for costs.[100]
[100] Lenova & Lenova (Costs) [2011] FamCAFC 141.
It has been held that the intention of section 117(5) of the Act is to provide protection to the public purse, and parties who can contribute towards the costs of the Independent Children’s Lawyer should do so.[101]
[101] De Roma & De Roma [2013] FamCA 566.
Having regard to the legal fees paid privately by the father to date, I am not satisfied that the father would suffer financial hardship were an order made for him to contribute to the cost of the Independent Children’s Lawyer. The father will be ordered to contribute to the costs of the Independent Children’s Lawyer as sought, and I will allow him three months to do so.
CONCLUSION
I have made findings that the father has perpetrated serious family violence, both upon X and the mother. I am not satisfied the father has undergone the necessary changes for him to appreciate his actions and to ensure that he does not continue to perpetrate family violence in the future. I am not satisfied that the father is able to support X’s relationship with the mother. I am satisfied that there is a risk that the father will make unfounded allegations as to the mother and Mr D in the future. The accumulation of these risks presents an unacceptable risk to X of being subjected to physical and psychological harm and of serious lethal harm to the mother. Such risks cannot be sufficiently ameliorated by long term supervision.
I thus will make orders as sought by the mother and the Independent Children’s Lawyer that X spend no time with the father.
I certify that the preceding three hundred and twenty-four (324) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 11 April 2024
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