MOHAMMED SALAH & GASTANA

[2011] FamCA 440

FAMILY COURT OF AUSTRALIA

MOHAMMED SALAH & GASTANA [2011] FamCA 440

FAMILY LAW – CHILDREN – Parental responsibility – High level of conflict between parties on almost all parenting issues – Where the parties were never married in accordance with Australian law – Where the mother denies being a party to an Islamic marriage ceremony – Cultural legitimacy of relationship not necessary to determination of children’s issues – Where mother denies a de facto relationship or any financial support from the father – Findings in favour of the mother – Where the father has done nothing to promote or facilitate the children’s relationship with the mother – Where the father is unreserved in his criticisms of the mother’s parenting – Father’s allegations unsubstantiated – Family violence – Presumption of equal shared responsibility does not apply – Court required to decide on the name of youngest child – Father opposes the name suggested by the mother on religious grounds – Evidence of Islamic religious leader supports the mother’s suggested name – Where the mother defers to the father with respect to religion – Mother to have sole parental responsibility for the children, save for decisions of religious upbringing.

FAMILY LAW – INJUNCTIONS – Personal protection – Where the mother seeks orders for her own protection and the safety of her children of an earlier relationship – Father opposes injunctions – Best interests of the subject children to issue protective injunctions.

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

Harridge and Anor & Harridge and Anor [2010] FamCA 445
M and M (1988) 166 CLR 69
Marsden and Winch (No. 3) [2007] FamCA 1364
Cowley v Mendoza [2010] FamCA 597
Goode and Goode (2006) FLC 93-286
MRR v GR [2010] HCA 4; (2010) FLC 93-424

APPLICANT: Mr Mohammed Salah

RESPONDENT: Ms Gastana

INDEPENDENT CHILDREN’S LAWYER: Damien Carter

FILE NUMBER: BRC 6504 of 2009

DATE DELIVERED: 15 June 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 8, 9 and 10 March 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Applicant in person

COUNSEL FOR THE RESPONDENT: Mr G. Andrew

SOLICITOR FOR THE RESPONDENT: Legal Aid Queensland

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr N. B. McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Damien Carter, Carter Farquar

Orders

The Female Child’s Name

1. That each of the parents shall, within seven (7) days of the date of this order, do all acts and things and execute all documents to apply for the Registrar of Births, Deaths and Marriages in the State of Queensland to amend the particulars of the registration of the birth of the child born to the mother and the father in these proceedings on 31 May, 2009, so that her name is registered as A Mohammed Salah.

2. That the said child, A Mohammed Salah, born … May, 2009, shall be identified and known by that name for all intents and purposes in the broader community in which she lives and neither parent shall take any steps to cause her to be registered, enrolled or recorded at any educational, cultural, sporting, health care or other institution, organisation or facility by any other name. 

Parental Responsibility

1. That the mother, Ms Gastana, has sole parental responsibility for the children, M, born …July, 2008 and the said A in respect of the major long-term issues about all aspects of their lives save for their religious upbringing.

2. That the father, Mr Mohammed Salah, has sole parental responsibility for the said children in respect of the major long-term issues about their religious upbringing.

3. That when the parents make decisions in the exercise of the sole parental responsibility conferred on them respectively pursuant to paragraphs (3) and (4) of this order, each shall notify the other in writing of the decision that has been taken.

Parenting and Living Arrangements

1. That the said children shall live with the mother.

2. That the said children shall spend time with the father as follows:-

   (a)       Until M attends Preparatory School

   (i)On a two weekly cycle as follows:-

   (I)In Week 1 from 10:00 am on Friday (commencing Friday 17 June 2011) until 5:00 pm on Sunday two days later;

   (II)In Week 2 from 5:00 pm on Sunday (commencing 26 June 2011) until 5:00 pm on Monday the day after; and

   (b)       After M commences Preparatory School

   (i)From after school on each second Thursday during school term until the commencement of school on the following Monday;

   (ii)For half of each of the school holidays that are given by the school that the children attend and being the second half of those holidays in the year in which M commences his Prep year and each alternative year thereafter and being the first half of those holidays in the year in which M is in Grade 1 and each alternative year thereafter;

   (iii)For the purposes of calculating the school holiday time that the said children are to spend with the father, the school holidays shall be considered to commence at 3:00 pm on the final day of school term and to conclude at 9:00 am on the first actual day of school term that the children are to attend and the children shall be returned to the mother after spending time with the father during the first half of the holidays at 5:00 pm on the day on which the exact half way point of the school holidays, so calculated, actually falls, and the children shall be delivered to the father to spend time with him during the second half of the holidays at 5:00 pm on the day on which the exact half way point of the school holidays, so calculated, actually falls; and

   (c)       Otherwise, from the date hereof

   (i)For Eid days from 5:00 pm on the eve of the first day of each Eid until 5:00 pm on the first day of each Eid.

   (ii)If the children do not otherwise spend time with the father pursuant to this order on the following days, then also as follows:-

   (I)from 5:00 pm on the eve of Father’s Day each year until 5:00 pm on Father’s Day;

   (II)for 3 hours on each of the said  between the mother and the father, or failing agreement, as determined by  the mother;

   (III)for 3 hours on the father’s birthday between such times as shall be agreed between the mother and the father, or failing agreement, as determined by  the mother.

3. That all changeovers at the commencement and conclusion of the times provided in this order for the said children to spend time with the father shall take place at the L Contact Centre when that Centre is open and operational at such times with each party bearing his and her own costs of the use of that Centre and, where that Centre is not open and operational at such times, then at C McDonalds, but after M commences Preparatory School the changeovers at the commencement and conclusion of the times the children spend with the father pursuant to this order shall take place at his school when changeovers are ordered to be at the commencement or conclusion of school but are otherwise to take place at C McDonalds.

4. That the parties shall within seven (7) days of the date of this order take all necessary steps to register, if not already, with the L Contact Centre and they shall, at all times when using the L Contact Centre, comply with the guidelines and rules set by the Centre for its use by parents.

5. That notwithstanding other provisions of this order, the said children shall spend time with the mother as follows:-

   (i)from 5:00 pm on the eve of Mother’s Day until 5:00 pm on Mother’s Day each year;

   (ii)for at least 3 hours on the mother’s birthday between such times as shall be agreed, or failing agreement, as determined by the mother;

   (iii)For at least 3 hours on each of the said children’s birthdays between such times as shall be agreed, or failing agreement, as determined by the mother

   and the other provisions of this order shall yield to the provisions of this paragraph where there is conflict or inconsistency between those other provisions and the provisions of this paragraph.

6. That the mother and the father can, during times that the children are in their respective care pursuant to this order, take the children interstate for periods of up to one week on up to two occasions each year and

   (i)Such periods shall not be less than four months apart;

   (ii)The parent who is travelling interstate with the children shall provide notice in writing of such proposed travel and a written itinerary of the proposed travel no less than four weeks prior to the departure and such information shall include the contact details for the children whilst they are travelling;

   (iii)During such periods away the time spent with the other parent pursuant to this order shall be suspended.

General Parenting Provisions

1. That the parents shall use a communication book to communicate with each other in respect of matters pertaining to the children and that book shall go between the parents with the children.

2. That the mother and the father shall not denigrate the other parent or the other parent’s family to, or in front of, or within the hearing of, the children and each shall take all steps to prevent others from denigrating the other parent or the other parent’s family to, or in front of, or within the hearing of the children.

3. That each of the mother and the father shall inform the other parent by means of the communication book of any medical condition, significant health issue or significant illness suffered by the children and also advise the other parent of the names and contact details of any medical practitioner or other allied health professional who sees the children and this order is sufficient authority for any treating medical practitioner or other allied health professional to release any medical information pertaining to the children to each of the parents.

4. That the mother shall keep the father informed as to any day care provider, school or educational facility and extra-curricular activity provider that the children attend and this order is sufficient authority for any day care provider, school or other educational facility, extra-curricular activity provider to provide each of the parents with information, documents or photographs that they are lawfully able to provide about the children, any cost therefore being borne by the requesting parent.

Injunctions

1. That the father is restrained from assaulting, harassing, stalking, abusing or coming into the immediate presence of the mother or any of the mother’s three daughters, S Gastana, K Gastana, and Z Gastana without the written consent of the mother first obtained

2. That the father is restrained from entering or contacting the place of work of the mother or any of her said three daughters.

Parenting Orders Program

1. That within six months of the date of this order the mother and the father shall each attend and complete a parenting orders program provided by Relationships Australia or Kinnections and each shall provide the other party and the Independent Children’s Lawyer with written proof of satisfactory completion of such a program.

2. The Independent Children’s Lawyer is discharged upon receipt of evidence from the mother and the father that each has completed a parenting orders program.

IT IS NOTED that publication of this judgment under the pseudonym Mohammed Salah & Gastana is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6504  of 2009

Mr Mohammed Salah

Applicant

And

Ms Gastana

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a dispute between the parents of two young children, a boy named M, born in July 2008  (now aged 2, nearly 3), and a little girl, born in May 2009 (now aged 2). The parents have not been able to reach agreement on many aspects of the parenting arrangements for these two children, not the least of which is their little girl’s name. The court is required to decide the name by which their little girl will be registered and known, as well as the time that the two children spend with each of their parents, matters of parental responsibility and other related parenting issues.

2. The matter was commenced by the father in the Federal Magistrates Court in Brisbane on 24 July 2009. Interim orders providing for the two children to spend time with the father were made in October and December of 2009, the latter by consent. From the commencement of the proceedings, the mother has been represented by a solicitor and the father has not had legal representation. An Independent Children’s Lawyer (“the ICL”) was appointed early in the proceedings.

3. The matter was listed for trial on 8, 9 and 10 March, 2011 and, at that time, the Federal Magistrate who was listed to hear it became unavailable for health reasons and the matter was transferred, with the consent of all of the parties, to this Court to be heard by me on the first of those days. At trial, the father was unrepresented, the mother represented by counsel and instructing solicitor and the ICL also instructed counsel.

4. The Court had the assistance of two family reports prepared by Mr. P, an experienced consultant Social Worker in private practice, dated 11 November 2009 and 5 November 2010. Both reports were put into evidence and Mr. P was cross-examined on those reports at the conclusion of the trial.

THE PARTIES’ PROPOSALS

1. Although the father is reported by Mr. P in his November 2010 report to have stated his position as seeking to share with the mother 50% of the children’s care, the proposal he put to the Court at trial was that the children live with him in a two week cycle as follows:-

   ·From 12 midday on Monday to 12 midday on Wednesday in week 1

   ·From 10 am Friday until 5 pm on Sunday in week 1

   ·From 12 midday Tuesday to 12 midday Thursday in week 2

   and that the children live with the mother at other times.

2. Accordingly, the father proposes a shared care parenting arrangement in which the children live with the mother for 3 periods including 8 overnights in a fortnight and with the father for 3 periods including 6 overnights in a fortnight. However, the father did also assert to the Court at trial that the mother is “unfit to have the responsibility of parenting the children unsupervised.” To the extent that she requires supervision of her parenting, the father asserted that professionals from the State Department of Communities (Child Safety Services) could provide that.

3. In contrast, the mother proposes that the children live with her and spend time with the father in a two week cycle as follows:-

   ·From 10 am Friday until 5 pm Sunday in week 1

   ·From 5 pm Sunday to 5 pm Monday in week 2

   but, when M starts school with his Preparatory year, that be changed such that the children spend time with their father from after school on Thursday to before school on the following Monday for one period in each two week cycle.

4. The father proposes that an equal shared parental responsibility order be made whilst the mother initially proposed parental responsibility orders be made that confer sole parental responsibility in respect of the health of the children upon her and shared parental responsibility on both parents in respect of the children’s religious and cultural upbringing, their education and in respect of any relocation of their residence such that would make it significantly more difficult for them to spend time with their father. At the conclusion of the trial, the mother agreed that the father could have sole parental responsibility in respect of the religious upbringing of the children.

5. Additionally, the mother wants to be able to take the children for holiday visits to Canberra where members of her family of origin live, which the father opposes. The mother also wants injunctions to be made for the personal protection of her and her three daughters of an earlier relationship who live with her and the two subject children. The father opposes that.

6. As to the little girl’s name, the father proposes that she be registered as, and known by, the name of H, whilst the mother proposes that she be registered as, and known by, the name A-H.

7. There are a number of other miscellaneous orders that each parent proposes I make but I shall not set them out here.

8. Similarly, I will not set out here the submissions made at the end of the trial on behalf of the ICL in respect of these matters but will return to those later.

BACKGROUND FACTS

1. The father is 43 years of age being born in 1968 in Kuwait of Kuwaiti ethnicity. The mother is 35 years of age being born in 1976 in Canberra of, I understand, Lebanese ethnicity. Both parties adhere to the Islamic faith, being Sunni Muslims, the father clearly asserting to be far more religiously devout than the mother with the mother unashamedly conceding that to be correct.  

2. The mother was previously married, that marriage ending in separation in or around 2005. She has three daughters of that marriage. They are 16, 14 and 9 years of age respectively and live with the mother in Brisbane. Their father lives in Canberra. They spend time with their father by agreement between their parents.

3. The father is married. He was married to his wife long before he met the mother. The father and his wife have four children of their marriage, one son and three daughters. They are 17, 16, 14 and 12 respectively. They live at the Gold Coast.  

4. It was not at all clear to me on the evidence that the father’s marital relationship with his wife was not still current when he met and had a relationship with the mother.  There is dispute between the mother and the father as to the true factual circumstances of their relationship that brings into question the true factual circumstances of the father’s marriage at the same time.

5. Both the mother and the father agree that that they first met whilst the mother and her daughters were still living in Canberra and the father was living with his wife and four children in Brisbane. They met through an online internet ‘chat site’.  A friendship grew between them and the mother visited Brisbane in April 2007 for a holiday, to meet the father and to help her make a decision as to whether she would move with her daughters to Brisbane. The mother said she met the father in person on that visit, as well as his wife and four children. She said that they all went out together on that visit.

6. The mother clearly determined to move to Brisbane and did so, with her daughters, in May, 2007. An intimate relationship between the mother and the father then commenced sometime after that.  

7. The father’s evidence was that he and the mother actually went through an Islamic marriage ceremony, a ‘Nikah’ in the Arabic language, at the B Mosque on 17 October, 2007. He said that the mother’s own mother from Canberra attended the ceremony, along with the mother’s three daughters. Mr. D, an acquaintance of the father, gave oral evidence at the trial, in which he adopted a statement previously written by him and attached as exhibit G to an affidavit of the father filed 3 March 2011. His evidence was that he had witnessed the ‘Nikah’ of the mother and father in October 2007 at the B Mosque, had visited the mother and father at the mother’s home thereafter and that the mother and father and the mother’s three daughters visited his residence often after that night.

8. The mother denied ever having gone through a ‘Nikah’ with the father at the B Mosque or any other place. She denied any knowledge of Mr. D and her counsel challenged Mr. D, asserting that he and the mother had never seen each other before. Mr. D maintained his evidence that they had. I cannot say I was completely convinced by his evidence that it was true.

9. The father did not put any documents from the B Mosque corroborating the evidence about the ‘Nikah’ into evidence. He did not put in any evidence from the Islamic cleric who he says performed the ceremony. One thing is clear, that is that the parties did not marry according to Australian law. They could not because the father and his wife were not divorced then. There is no evidence before me that they ever did divorce.

1. The father’s evidence was that he then moved in with the mother and her daughters at the mother’s Brisbane residence and that they lived as a ‘de facto married’ couple from then until their separation in June, 2009.

2. The mother’s evidence is that the father never moved in with her. She said he had a key to her home and that after she moved to Brisbane, the father would visit her at her home, coming and going as he pleased, sometimes staying over night. In October, 2007, she became pregnant with their son, M. She said her friendship with the father’s wife continued until then.

3. The mother said that in or about November, 2008, the father informed her that his wife wanted a divorce from him. There is no evidence that a divorce was ever obtained in respect of that marriage. In early, 2009, the mother said, the father suffered a heart attack and was hospitalised. The mother says she called his wife to let her know and she visited the hospital to see him. The mother says that she and the father’s wife became friendly again after talking upon leaving the hospital, but that since the breakdown of her relationship with the father in June, 2009, the mother’s relationship with the father’s wife has been less than friendly again.

4. It is not clear where the mother says the father was living during the period that he says he was living with the mother in her home. But there is no doubt that the father says he has been living with his wife and their four children since and that he asserts that they are in a subsisting marital relationship. I am not convinced that there was a time during the period relevant to this matter that they were not.

5. The father made it clear at the commencement of the hearing that he was seeking from the Court a finding that he and the mother had, in fact, undergone the ‘Nikah’ at the B Mosque on 17 October, 2007. He indicated that he considered it important to establish the ‘legitimacy’ of his relationship with the mother according to their Islamic faith and, as a consequence thereof, the ‘legitimate’ birth status of their two children, at least according to their Islamic faith.

6. I made it clear to the father during the hearing that I was not convinced that there was any need for me to actually determine that issue in the context of these parenting proceedings and that I considered it an unnecessary diversion from a determination of the parenting orders that would be in the best interests of the subject children.

7. I remain convinced that my initial thoughts on that matter were correct and that there is no reason for me to have to decide that matter in order to determine the future parenting arrangements for these children. Having heard the evidence on the point, as I have said already, I was less than convinced that the father and the mother had actually gone through an Islamic ‘marriage’ ceremony. Counsel for the mother submitted that findings on the point would assist in respect of determining the credibility of the parties so as to better decide other disputed points of fact.  I have considered that submission and have decided that I can make a determination as to the parenting arrangements that are in the best interests of these children without actually having to decide whether or not the mother and the father actually went through a ‘Nikah’ or not and without actually having to decide what impact such a finding might have on the overall credibility of the father and the mother.

8. The mother’s evidence was not only that the father did not live with her, but further, that the father did not support the mother financially during the period between 2007 and mid 2009. She said she was in receipt of income support from Centrelink during that time. The father denied that he did not support her and, interestingly, he said that since the break up of their relationship he has actually reported the mother to Centrelink for what he asserts is fraudulently obtaining that income support as a sole-parent during the time of their relationship.

9. I must say that I accept the mother’s evidence that she and the father were not actually living together between her arrival in Brisbane and June, 2009 and I accept her evidence that the father did not support her financially or pay bills for her during that time. I reject the father’s evidence to the contrary.

SOME GENERAL IMPRESSIONS OF RELEVANCE TO THE DECISION AT HAND

1. Although the father, unrepresented as he was, conducted himself during the course of the hearing with a commendable degree of self-restraint and apparent respect for the Court, I cannot say that I was, at the same time, impressed by his credibility.

2. It was clear to me from the evidence and from what I saw and heard during the trial that the father has expectations of being in control of the mother and their two children in particular, and that his expectations extend as far as a belief that the mother must simply bend to his will in respect of matters pertaining to their two children. I am satisfied that the father does not appear, at least to this point in time, capable of accepting the independence of the mother from him, the importance of her role in the lives of their two young children and her apparent capacities as a parent to deliver the necessary emotional and physical care and support to these children.

3. The evidence established that from the time of the end of their relationship, just prior to the premature birth of their daughter, until the hearing, the father has subjected the mother to a seemingly relentless campaign of intimidation, harassment and condemnation designed to undermine her self-confidence and her parenting capacities under the guise of his allegedly acting in the best interests of the children.

4. Strangely though, notwithstanding the fact that the father presented a case that the mother’s parenting capacities are to be condemned, he still presented a proposal at the trial that they share the care of their two children. Although he did that, I remain unconvinced that the father really considers such an arrangement to be appropriate and I consider that his true goal is to get full-time care of these two children. Indeed, Mr. P was, clearly, of a similar view. He said in his second report that he would assess the father “as being implacably insistent on the children being in his care.”

5. Despite that which the mother has had to endure, she nevertheless is not critical of the care the two children get in the care of the father. She considers, quite correctly, I have no doubt, that the father is assisted in his care of the children, when they spend time with him, by his wife and four other children for whom the mother has clear regard. Apart from being unsurprisingly troubled by the father’s ‘campaign’ against her since mid-2009, the mother otherwise clearly respects the father’s position in the lives of their children, the importance to the children of maintaining and developing their relationships with him and their father’s family and also the positives that the father can bring to the nurturing and development of their two children. She seems, merely, to seek some respite from the father’s campaign against her. In my opinion, at least, that is a well-founded desire on her part.

PARENTING ARRANGEMENTS TO DATE

1. After the birth of M in July, 2008, the father would spend regular time with the boy when visiting the mother at her home. The relationship between the mother and the father began showing signs of breaking down when in March, 2009, the mother asked the father to stop simply dropping in to see the boy but to text or call the mother first to arrange a suitable time to see him.

2. The father was, around that time, also picking M up and, with the mother’s apparent approval, taking him to his home so that he could spend time with the father’s other children.

3. The relationship between the mother and father broke down completely around the time of the premature birth of their baby girl in May, 2009 and in July of that year the father commenced these proceedings.

4. Soon after, on 11 August, 2009, the father filed an application in the State Magistrates’ Court seeking domestic violence protection orders against the mother that:-

   ·Stopped her calling his wife;

   ·Restricted her communication with others;

   ·Forced her to speak to him about the two children;

   ·Forced her to give him unrestricted access to the two children;

   ·Forced her to allow him to visit the children at her residence;

   ·Restricted members of her family of origin from being with her and the two children.

5. That application was dismissed by the Magistrate at a Magistrates’ Court at a hearing on 20 August, 2009.

6. Because of a lack of support from any person here in Brisbane, she said, the mother then took her three older daughters and the two young children and went back to Canberra. The father immediately obtained an order from a Federal Magistrate requiring the mother to return the two young children to Brisbane and for them to spend time with the father from 10 am until 6 pm each alternate Sunday and from 2 pm until 6 pm each Tuesday and Thursday.

7. Changeovers for the children were fixed to occur at the L Shopping Centre and the father was ordered to attend such changeovers by his wife.

8. The mother and all of her children returned immediately and matters progressed with the children generally spending time with the father as ordered but with the parents remaining in relatively high conflict about matters pertaining to the well-being of the children, including their health.

9. On 22 December, 2009, after the preparation of Mr. P’s first report, further interim orders were made, with the consent of the parents and the ICL, that provided for the children to spend time with the father from 12 midday to 6 pm on Tuesdays and Thursdays during school terms and from 10 am to 5 pm on Tuesdays and Thursdays during school holidays and from 10 Saturday to 5 pm Sunday on the first weekend in every three and then for M alone to spend that same time with the father on the second weekend in every three.

10. Changeovers were to continue to take place at the L Shopping Centre but also, on the weekends, at the L Contact Centre. The father’s wife was still to be the person who attended changeovers and collected the children for the father.

11. There was an order requiring medical appointments to be agreed between the parties unless they were at the W Medical Centre. Clearly, as Mr. P noted in his first report, the parents were having disagreement about medical issues in respect of the children.

12. But for some few occasions, the evidence supports a finding that the children spent time with their father pursuant to the December, 2009 orders through until the time of the trial in March of this year.

13. As I have already noted, the parents want different orders put in place now as to the time that the children spend with the father. I shall return to consideration of that matter later.

THE PRINCIPLES TO BE APPLIED

1. When considering the decision as to the particular parenting orders to make in respect of the two children of these parties I must do so with mandatory regard to their best interests being the paramount consideration. (see s.60CA) 

2. In determining what is in the best interests of the children in the case before the court, I must give consideration to expressly listed “primary” and “additional” considerations. (see s.60CC) One of those “additional” considerations, namely s.60CC(3)(m), lists “any other fact or circumstance that the Court thinks is relevant”. As Murphy J pointed out in Harridge and Anor & Harridge and Anor [2010] FamCA 445 at [35], that listed consideration proves that the enquiry is indeed a broad one.

3. As broad as it is, the enquiry must still be performed within the constraints of the statutory framework of Part VII of the Act. That Part begins with a statement of the objects of the Part and the principles underlying those objects. Those are as follows:-

   S.60B (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. Critically, parenting cases are not about determining parental rights. The High Court clearly stated as much back in 1988, well before the Family Law Amendment (Shared Parental Responsibility) Act 2006 that introduced into the Act that legislative statement of the objects and the principles of Part VII just set out.  In  M and M (1988) 166 CLR 69 their Honours relevantly said (at page 76) :-

   In proceedings of that kind [parenting orders cases] the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in the child’s interests to maintain the filial relationship with both parents.

5. The 2006 amending legislation introduced into Part VII of the Act the current statutory framework within which parenting orders are to be determined in each case in which there is dispute as to the parenting of children.

6. Expressly listed as ‘primary’ amongst the considerations that the Court must consider in determining what is in children’s best interests are two matters (see s.60CC (2). They are:-

   a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

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

   In the Act, it is said that making these considerations the primary ones is consistent with the objects of Part VII – that is, at least those two objects set out in s.60B(1)(a) and (b). (see the Note to s.60CC(2))

7. The two “primary” considerations set out in s.60CC(2) are to “be accorded particular importance in determining what order will best promote the interests of the child” (Marsden and Winch (No.3)[2007] FamCA 1364 per Warnick and Thackray JJ at par 77). In my opinion, that they are separately listed and described as “primary considerations” demands as much

8. On the one hand, consideration of the benefit to the child of having a meaningful relationship with both parents is given particular importance. On the other, consideration of the need to protect the child from being subjected to, or exposed to, abuse is, clearly, given equal importance.

9. As important as is the consideration of the two “primary” considerations, all of the evidence in any case must also be considered and weighed in the light of the s.60CC(3) “additional” considerations and the s.60B objects and principles in order to determine what is in the best interests of the children in that particular case.   

10. Murphy J succinctly set out in Cowley v Mendoza [2010] Fam CA 597, all of those matters that are required, by way of the specific statutory framework of Part VII, to be considered at more than one point in the process. Drawing together the relevant legislation and the principles from the Full Court’s decision in Goode and Goode (2006) FLC 93-286 and the High Court’s decision in MRR v GR [2010] HCA 4; (2010) FLC 93-424, his Honour conveniently summarised the steps that are actually required to be taken to accord with the statutory framework set out in Part VII in any parenting case in which the Court makes or contemplates making a parenting order. I respectfully agree with his Honour’s considered summary. Pursuant to that statutory framework, the Court must:-

    ·apply the presumption of equal shared parental responsibility

    ·determine whether there is abuse of a child or family violence, which means that the presumption does not apply

    ·determine whether the presumption is rebutted by evidence that it is not in the child’s best interests for there to be equal shared parental responsibility

    ·if the presumption applies:

    ·    determine whether it is in the child’s best interests for there to be an order for equal time with each parent

    ·    make findings as to the matters set out in section 65DAA(5) which are:

    Reasonable practicality: In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

    (a)how far apart the parents live from each other; and

    (b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

    (c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

    (d)the impact that an arrangement of that kind would have on the child; and

    (e)such other matters as the court considers relevant.

    ·    as a result of this enquiry, make findings as to whether an “equal time” order is reasonably practicable

    ·    if an equal time order is not reasonably practicable, carry out the same process in respect of a “substantial and significant time” order

    ·if there is no equal time or substantial and significant time order, proceed to determine what orders are in a child’s best interests.

THE PRESUMPTION OF EQUAL SHARED RESPONSIBILITY

1. In this case, the parents of the two children and the ICL ask me to make parenting orders in respect of M and his little sister. I will be doing so. Accordingly, the first thing I will have to do in the course of so doing, is to apply the presumption that it is in the best interests of these two little children for their parents to have equal shared parental responsibility for them. (s.61DA(1))

2. However, pursuant to s.61DA(2), the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in “abuse” of the child or “family violence”. Both “abuse” and “family violence” are defined, quite broadly, in s.4 of the Act. Without setting out those two definitions, it is sufficient to acknowledge that the mother in this case asserts that the father has engaged in family violence towards the mother. Indeed, the father also asserts that the mother has engaged in abuse of the children.  

1. If I determine that there are reasonable grounds to believe that any of the alleged “abuse” or “family violence” actually occurred, the presumption does not apply.

2. Of course, if I determine that any of the alleged “abuse” or “family violence” did not occur, that is not the end of it. I must still consider whether there is evidence that supports a finding that the presumption that it is in the best interests of these children for their parents to have equal shared parental responsibility for them is rebutted. If it is, I can make specific orders in respect of parental responsibility that I determine are in their best interests.

DETERMINATION OF RELEVANT FACTUAL MATTERS

1. I have absolutely no difficulty accepting the opinion evidence of Mr. P, given in his second report, that:-

   Both subject children have a very loving relationship with each parent and the respective family members on each side of the dispute.

2. Accordingly, there can be little doubt that making orders that allow the children to spend time with their father will benefit them by allowing each of them to have a meaningful relationship with him. What I must also consider, as part of the determination, is the benefit to them of maintaining the relationships they currently have with their mother, that are also, quite clearly, very meaningful to them. Orders should not be made, in my opinion, that detrimentally impact, in any way, upon the loving nature of the relationships that they currently have with their mother. The evidence satisfies me that the mother is the parent with whom these two children are most significantly emotionally attached at this young age. The maintenance and development of their emotional well-being depends greatly, in my view, upon the attachments to their mother not being put in jeopardy. I bear that in mind when considering all of the evidence and what orders I should make as to with whom the children live and with whom they should spend time that will be in their best interests.

3. Mr. P said, in his second report, that “the father has many and various criticisms of the mother’s care of the children.” Some of that criticism surrounds the issue of religious observance. The father criticizes the mother because she drinks alcohol. He also accuses her of living an immoral lifestyle, and asserts that she has been “consorting” with a number of different men in recent times.

4. Mr. P records that the father had “gleaned this information by accessing a Web site” subscribed to by the mother’s 14 year old daughter, K. Interestingly, Mr. P said that he could make little sense of the competing allegations in this regard.

5. This issue formed one of the most intriguing and revealing parts of the trial. The father put into evidence an affidavit attaching hundreds and hundreds of pages of transcript of internet based ‘chat’ or ‘conversation’ between the mother’s young teenage daughter, K, and a fictitious young teenage boy, J. The father claimed that, without his knowledge, his 16 year old teenage daughter, Y, pretended to be a boy named J and began this internet friendship with K out of concern for the well-being of her younger brother and sister who were in the mother’s care. The internet friendship went on for several months at the end of 2009.  The father said that he only learned about it after many months when his wife told him of it. He said that his wife told him that she had sent the transcripts of the internet ‘conversations’ to the ICL out of apparent concern for the well-being of the two young children having regard to matters said to have been revealed by K in these ‘conversations’. The father also clearly based some of his most strident criticism of the mother on matters said to have been revealed in the transcripts.  

6. The Court was informed that the ICL never received any such transcripts from the father’s wife and only saw them for the first time attached to the father’s affidavit filed 15 February 2011.

7. The mother’s evidence was that she believed that the person who pretended to be the fictitious ‘J’ was not Y but rather the father himself. She said that her daughter, K, had “fallen for” this boy on the internet and had become very emotionally attached to ‘him’ and was totally devastated and “heart broken” when she discovered that J was a hoax and did not exist. The mother pointed to this as an example of how far the father was prepared to go in his obsession in respect of the mother without regard to the consequences for the young teenage girl, K.

8. The father denied that it was him who pretended to be ‘J’ and he asserted that he had appropriately disciplined his daughter, Y, for carrying on the hoax. Curiously, at the start of the hearing, the father denied that there was any suggestion in the transcript of the ‘conversation’ that J was seeking to induce K into a ‘romantic’ relationship. He further denied assertions that there was any suggestive sexual content in the conversations emanating from ‘J’. I asked the father during the trial to take me specifically to the parts of the transcribed ‘conversations’ that he relied upon as supporting his criticism of the mother. He was given time, overnight during the trial to do that. He never did it. In fact, a reading of the transcript of the internet ‘conversations’ that went on for months clearly reveals that ‘J’ did induce K into a ‘romantic’ relationship of trust, did make sexually suggestive comments to her on many occasions and did clearly encourage K to give him information about her mother, her mother’s conduct, relationships etc and about the care of her younger brother and sister.

9. In the end, I was left with very little doubt at all that the person who pretended over many months to be ‘J’ was indeed the father and not his daughter, Y, who he sought to unashamedly blame for what was clearly predatory, exploitative and irresponsible conduct of an adult man towards a young teenage girl for no good reason but to try and gather evidence against the mother in this case. The lack of insight and judgment on the part of the father that was shown by actually putting hundreds of pages of transcript of these internet ‘conversations’ into evidence, when it achieved nothing beyond seriously discrediting him, is rather alarming. He even sought to put into evidence an unsigned ‘statement’ said to be written by his daughter, Y, in which she claimed responsibility for the ‘J’ hoax but in which she still tried to raise as serious issues against the mother matters said to have been revealed to her her by K. This attempt further damaged the father’s credibility in the proceedings, in my mind, at least. Nothing in the transcripts caused me to have any serious concerns for the mother’s parenting.

10. The mother said in her evidence that she is worried about the father denigrating her in front of the children. She said that the way he communicates with her causes her to worry about what he might be saying in front of the children. She also said that when the children move from her care to the father’s care at changeovers, through his wife and older children, they, too, often say negative things about her. I have little doubt, having seen all the evidence in this case, that the father and his family would be unrestrained in their criticism of the mother in their home, even around the two children.

11. There is no evidence suggesting though that the children are in any form of physical danger at the hands of the father or in his household. The mother does not suggest that. In contrast though, the father filed two Notices of Child Abuse or Family Violence during the course of the proceedings. The first was on 2 October 2009 and the second was on 16 August 2010. The father’s first Notice contained allegations that the mother’s daughters of her previous marriage had been abused sexually, physically and verbally by their father and that the mother herself had been abused and raped by her former husband. The father asserted that the mother emotionally and mentally blackmailed her daughters to cover up the truth of those allegations and that he feared his two children might suffer the same abuse at the hand of the mother’s former husband if exposed to him.

12. The mother denied the allegations and the evidence also revealed that Queensland Department of Communities (Child Safety Services) staff had investigated the allegations, interviewing the teenage daughters. The evidence revealed that the teenage daughters of the mother confirmed none of those allegations. All the evidence I saw convinced me that the mother can be expected to act protectively in respect of her two young children around members of her extended family of origin and otherwise, and that there is no unacceptable risk to these two young children presented by the mother taking them to Canberra for holidays as she seeks to spend some time seeing her family there.

13. The second of the two Notices of Child Abuse contained allegations that the mother exposed the two young children to abuse which caused them harm, that she is negligent and unable to provide adequate care and supervision which causes the children harm, ongoing psychological disorders, constant ill health and frequent physical injuries, that she exposed the children to a large number of strangers, her “illegal” sexual conduct and alcohol consumption and that she failed to provide expedient medical attention for at least the child, M.

14. Mr. P also reported, in his second report at paragraph 70, that the father is insistent that the children are being neglected emotionally and physically in their mother’s care.

15. I find that the father did not make out his case in respect of any of these allegations. I find that there is nothing to be concerned about in respect of the welfare of the two young children in their mother’s care notwithstanding all of these allegations. A consideration of the evidence the father relied upon as supporting him in these allegations highlighted the misplaced nature of the father’s opinions about the mother in respect of these matters. For example, the father alleged the mother had jammed M’s fingers in a sliding door, had allowed him to burn himself on his arm at a BBQ and also allowed M to travel unrestrained in a motor car such that he had bumped his nose causing a serious nose bleed. The father relied on these mattes as serious examples of maternal abuse and neglect, highlighting, he claimed, the mother’s incapacities as a parent to care for the children.

16. The mother gave careful explanations of the circumstances of each of these occasions. I am satisfied that each was an accident such as those that often happen with little children in a regular household even when the utmost care is being provided. I am satisfied that there was nothing wilful or seriously negligent about the mother’s care of the child on each of these occasions or the manner in which she responded to the presenting circumstances. I consider the father elevated these matters way beyond reasonable proportion, simply as part of his determination to find matters upon which to condemn the mother’s parenting to support his fundamental view that the children should be living with him.

17. I am satisfied that consideration of the need to protect these two children from harm from being subjected to, or exposed to, abuse, neglect or family violence in this case focuses attention more on the point of interaction and communication between the father, his family and the mother. Reduction of the opportunity for conflict to occur, which could easily occur, I find, if there is face to face contact between the parents, or even the father’s family and the mother, is important to try and achieve. So too, is the reduction, where possible, of the exposure of the children to denigration and negative comment and sentiment by their father and his family of and about their mother. At the same time, that has to be balanced with the benefit to these children to be gained by having an ongoing relationship with their father and his family to achieve what is in the best interests of these children.

18. The mother asserted the belief that the father does not support her in her role as a parent of their children. I accept that her belief is well founded.

    
    

    There was ample evidence supporting that. The father did not dispute that he encourages the children to call his wife “mummy” or “mummy z” and the mother’s evidence was that M even appears confused about this issue when talking to the mother, saying “I don’t want to go to that mummy” when he saw the father’s wife approaching at one changeover in October 2010.

19. It is not in dispute, and the father was seemingly proud of his efforts, from my observations during the hearing, that the father has:-

    ·Commenced proceedings against the mother in the Magistrates Court and the District Court, the latter being proceedings seeking $250,000 in damages for alleged perjury by the mother (not a known cause of action to my mind)

    ·Complained to the Queensland Ombudsman’s office and the Anti-Discrimination Commission of Queensland in respect of the mother and person’s connected with her case;

    ·Commenced proceedings against the Registrar of Births, Deaths and Marriages in respect of the issue of the baby girl’s name and its registration;

    ·Complained to Centrelink about the mother allegedly fraudulently claiming benefits;

    ·Complained to the Department of Communities (Child Safety Services) about the mother and her care of the children and her teenage daughters;

    ·Complained to the Legal Services Commission about the alleged unprofessional conduct of the solicitor at the Legal Aid Office, Queensland, who was representing the mother in the first instance, such that the solicitor ceased representing the mother in circumstances where I, at least, saw no evidence that gave me any cause for concern about the professionalism of that solicitor’s conduct;

    ·Threatened the solicitor at the Legal Aid Office, Queensland, who is currently representing the mother that he would report her to the Legal Services Commission also for alleged unprofessional conduct in circumstances where I, at least, saw no evidence that gave me any cause for concern about the professionalism of that solicitor’s conduct;

    ·Complained to the Australian Medical Board about the professionalism of the medical practitioner who has been treating the children where I, at least, saw no evidence that gave me any cause for concern about the professionalism of that doctor’s conduct;

    ·Complained about a Psychologist who the mother took the child M to see for failing to do that which he expected that Psychologist to do in circumstances where I, at least, saw no evidence that gave me any cause for concern about the course the Psychologist took in the circumstances.

1. The mother said that she feels that the father, by doing these things, is attempting to undermine any help or support that the mother receives in relation to the children. It does not surprise me that the mother feels that way. I consider that her feelings are well founded. I find that is what the father is actually doing when he is taking all those steps just outlined. The father asserts it is all legitimate activity. I consider it is part of his ‘campaign’ to have the children living principally with him and his family. I am far from convinced that the father is really willing or able to facilitate, and encourage, a close and continuing relationship between the children and their mother.

2. Mr. P said (see paragraph 56 of his second report):-

   I consider that the level of dispute between the parents will not abate. I would assess the father as being implacably insistent on the children being in his care.

3. I consider Mr. P’s opinion soundly based and am very concerned that the longer the time the children were to spend in the father’s care the more their relationship with their mother might be subject to serious risk of undermining.

4. On the other hand, I am satisfied that the mother is, notwithstanding that which she has had to endure, willing and able to facilitate and encourage the children’s relationship with their father.

5. Changing the parenting arrangements from that which are currently in place to that proposed by the father, would increase the amount of time the children spend in the care of the father and his family and reduce the amount of time they spend in the care of the mother and her daughters. It also leaves in place the requirement for multiple changeovers in each two week period.

6. The mother reported to Mr. P (see paragraph 47 of his second report) that she finds the mid-week “contact” onerous, difficult and unsettling for the children. Mr. P said (at paragraph 52) that when he pointed out to the father that his proposed arrangement would be difficult in the long term, particularly when the children reached school age, the father is reported to have said this was not an issue as they now only attend a child care centre and that when it came time for them to attend school he would then “apply for their full custody.”

7. Mr. P expressed reservations (see paragraph 53 of his second report) about the father’s proposal and expressed the opinion that a far better outcome now would be to arrive at “a current disposition which would transfer smoothly to other arrangements at a time when the children were ready for school.” He expressed the view that he found “considerable merit in the mother’s proposal that the contact should move towards a fortnightly, admittedly expanded weekend, which would give the children a degree of stability in the meantime.”

8. I accept that the current arrangements are unsettling for the children, particularly given that which I find they are probably being exposed to in the father’s household in so far as outward expression of attitudes towards their mother are concerned. I consider that reducing the number of times the children go back and forth between the households is likely to reduce the unsettling nature of the current arrangements as well as reducing the number of changeovers from family to family that the children have to deal with. I do not consider that the children will suffer emotional detriment by a change in the formatting of the time they spend with their father and his family. Certainly, Mr. P was not concerned that they would and I accept the correctness of his opinion on that matter.  

9. The father is, clearly, greatly assisted in the practicalities of day to day parenting of the two little children when they are with him and his family by his wife and their children. Without their assistance, I consider that he would struggle with those practicalities.

10. Whist the mother concedes the father’s parenting capacities are sufficient for the children to spend the time with him that she proposes, as I have indicated I am concerned about his capacities to provide for the emotional needs of the children, particularly in so far as their need for the maintenance of their emotional attachments to their mother to remain sound and intact is concerned. I must consider that in framing the appropriate parenting arrangements for these children.

11. Both parents are of Arab ethnic background, although originating from different parts of the middle-east. They both speak Arabic as well as English and they both adhere to the Islamic faith, although to differing degrees of devotion. The mother was born in Australia and, unsurprisingly, considers herself Australian. The father appears to me to have a strong commitment to the maintenance of his Arab-Islamic culture. The children, if living principally in their mother’s household, will still grow up immersed in their Arab-Australian culture and that will be further reinforced when they spend time with their father and his family.

12. The mother indeed recognises, clearly with some degree of deference and respect, the father’s apparent devotion to their faith and is quite prepared to concede parental responsibility for matters pertaining to their faith to the father. That is yet more evidence, in my opinion, that demonstrates the mother’s capacities, in the face of adversity, to put the children’s needs first by deferring to the importance of the role she believes the father can play in the children’s religious upbringing, when he is a more devout follower of their religious faith than she is.

1. I have no hesitation in accepting the evidence of the Immam. The father did not challenge the Immam’s expertise to express the view that the name “[A]” for a female child was not offensive to Islam. In these circumstances, I am, therefore, left with evidence from an Immam that the name the mother prefers, namely “[A]” is not offensive to Islam as the father asserts but that he cannot be certain that the names “[H]” or “[A-H]” are not offensive to Islam as he does not know what “[H]” means. Given the Immam’s apparent unchallenged expertise, it seems strange to me indeed that the father vehemently opposes naming the child “[A]”, a name sanctioned by the Immam as inoffensive to Islam and proposes the child be named “[H]”, a name the Immam could not similarly sanction as inoffensive to Islam. I just cannot accept the father’s assertion that the name “[H]” is inoffensive to Islam in these circumstances, as although a devout Muslim, the father’s expertise in this area is far from certain.

2. I do not consider it a matter that I should now simply leave to the mother to determine as a matter of sole parental responsibility. I do not consider it in the child’s best interests that she be registered by a name, which in all the circumstances could still potentially be offensive to Islam. I also do not consider it appropriate to place the mother in a situation where she could now unilaterally act in some different way than is currently indicated, so as to provoke or upset the father in some way. I do not want to leave her in a situation where she could still register the hyphenated name where it may be offensive to Islam and, in any event, so clearly offends the father and I do not want there to be any uncertainty about the naming of the child moving forward that could potentially lead to more proceedings being brought.

3. I consider now that the child should, in all the circumstances, be registered as “[A]” and “[A]” alone. Her mother, who was caring for her single handed at birth, and who has done so, principally, ever since, decided on reasonable reflection to name her “[A]” at birth for what were, I accept, clearly good enough reasons. She did so after also having considered and clearly rejected the name that the father has come to prefer. I accept the mother’s evidence that the child is now generally known to the world as “[A]” save for within the father’s household and his wider circle. I am drawn to the conclusion that the father’s opposition to the name “[A]” is yet another example of his determination to control the mother and her parenting of these two children.

4. All of these matters fortify me in determining that it is in A’s best interests for her to be formally registered with the Registry of Births, Deaths and Marriages by this name alone and for her to be known by that in her daily life. As I said during the trial, I do not expect that any determination I make in this regard will prevent the father and his household from still calling the child “[H]” but, as I have already said in this judgment, I expect the child will grow coping with this. I will though, having regard to the father’s propensity to take his own unilateral steps with external agencies to try and achieve what he desires, make orders making it clear that it is my intent that the child is known to the rest of the world as A.

PARENTING ORDERS PROGRAM

1. The mother proposed that I make an order that the father attend a Parenting Orders Program and when she was asked about that by counsel for the ICL she reasoned that his attendance at such a program may improve their communication. Section 11E requires me to consider seeking advice from a family consultant about the services appropriate to the needs of the parent and the most appropriate provider of those services before I exercise power to order a parent to attend such a course. I do not consider that I need to seek that advice as I am satisfied already on the evidence that it would be in the best interests of the two subject children for both of their parents to attend, albeit separately, a Parenting Orders Program with the hope that it may improve their communication in respect of the children and I intend to so order.

INJUNCTIONS

1. I also consider it in the children’s best interests for the injunctions the mother seeks for her personal protection and the protection of her three daughters to be granted. The father’s conduct towards the mother must be modified so that she is able to get on with parenting the two subject children with confidence that she will be left alone by the father. Injunctions restraining him from coming into her immediate presence and from assaulting or abusing her should help.

CONCLUSION

1. It is to be hoped that these two parents will now be able to move forward in their parenting, with certainty as to their roles in the lives of their children. I expect that the father will be extremely disappointed with my findings and the orders that I have determined to make. It is important, I consider, that he understands that the well-being of his two young children now very much depends upon his acceptance of this decision and the cessation of all action that undermines the mother’s parenting capacities. It remains to be seen whether the father has the capacity to understand and accept that but it is with optimism that I make the orders that I now do.

I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 15 June 2011.

Associate: 

Date:  15 June 2011