Moradi & Rahimi
[2023] FedCFamC1F 528
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Moradi & Rahimi [2023] FedCFamC1F 528
File number(s): SYC 9112 of 2020 Judgment of: BERMAN J Date of judgment: 30 June 2023 Catchwords: FAMILY LAW – CHILDREN – With whom the children live with – Where each party seeks that the children live with them – Where the children have lived in the primary care of the mother and father and not spent significant blocks of time with either parent – Where each party alleges significant risk of the other – Where the orders sought are inconsistent with a contention that there is risk in either party’s household – Where the Court finds the father has engaged in family violence – Where the father is unlikely to support the children’s relationship with the mother – Where the mother has maintained the children appropriately – Where the Court orders for the children to live with the mother.
FAMILY LAW – CHILDREN – With whom the children spend time with – Where the parties agree that the children should spend significant time with the other parent – Where there is a deep mistrust between the parties and their relationship is hostile – Where the parties can communicate but cannot come into physical contact with each other – Where the most significant risk to the children arises from the litigation – Consideration of what orders may limit the need for either party to resort to future litigation – Where the Court finds that time spending with the father should be in one block period – Orders.
Legislation: Family Law Act 1975 (Cth) Div 12A, ss 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 60CC(2A), 61DA, 61DA(2), 69ZN, 69ZT, 69ZT(3). Cases cited: AMS v AIF (1999) 199 CLR 160
Champness & Hanson (2009) FLC 93-407
Mazorski & Albright [2007] Fam LR 518
Rahimi & Moradi [2023] FedCFamC1F 151
Sigley v Evor (2011) 44 Fam LR 439
U v U (2002) 211 CLR 238
Division: Division 1 First Instance Number of paragraphs: 173 Date of hearing: 27-28 February and 1-2 March 2023 Place: Sydney Counsel for the Applicant: Mr Iuliano Solicitor for the Applicant: Swifte Law Counsel for the Respondent: Ms Golovina Solicitor for the Respondent: RMG Law & Associates Counsel for the Independent Children's Lawyer: Mr Holmes Solicitor for the Independent Children's Lawyer: Holmes Donnelly & Co Solicitors ORDERS
SYC 9112 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MORADI
Applicant
AND: MS RAHIMI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BERMAN J
DATE OF ORDER:
30 June 2023
THE COURT ORDERS THAT:
1.All previous orders be discharged.
2.The parties have equal shared parental responsibility for X born 2012 and Y born 2014 (collectively “the children”).
3.The children live with the mother.
4.That the children spend time with the father as follows:
(a)Each alternate weekend from after school on Thursday (or 3.30 pm on a non- school day) until before school on the following Tuesday (or 8.30 am on a non-school day);
(b)During the short term holiday period, for one half in each even numbered year commencing in the last week of school term from Friday after school (or 3.30 pm on a non-school day) and concluding on the second Saturday at 3.30 pm and for the second half in each odd-numbered year commencing on the second Saturday at 3.30 pm and concluding on the Sunday before the next school term resumes at 3.30 pm;
(c)During the term 4 long school holidays, each alternate week commencing in the last week of school term from Friday after school (or 3.30 pm on a non-school day) to the following Friday at 3.30 pm;
(d)On Father’s Day weekend from 10.00 am Saturday until 5.00 pm Sunday. In the event Mother’s Day falls on a weekend when the children are spending time with the father, he shall return them to the mother at 10.00 am on Saturday, being the Mother’s Day weekend;
(e)On the birthday of the children as follows:
(i)If a school day from the conclusion of school until 5.30 pm; and
(ii)If a non-school day from 10.00 am until 2.00pm
(f)During Easter as follows:
(i)In 2023 and each alternate year thereafter, from 3.00 pm Easter Sunday until 5.00 pm Easter Monday; and
(ii)In 2024 and each alternate year thereafter, from the conclusion of school on Easter Thursday until 3.00 pm on Easter Sunday;
(g)Otherwise as agreed between the parties.
5.In relation to the Christmas period, the children spend time with the mother and father as agreed between them in writing, and failing agreement, as follows:
(a)The children spend time with the mother from 2.00 pm on Christmas Eve until 2.00 pm on Christmas day in odd-numbered years and with the father from 2.00 pm on Christmas Eve until 2.00 pm on Christmas Day in even numbered years; and
(b)The children spend time with the mother from 2.00 pm on Christmas Day until 2.00 pm on Boxing Day in even numbered years and with the father from 2.00 pm on Christmas Day until 2.00 pm on Boxing Day in odd-numbered years.
6.The children be permitted to communicate with the father by telephone as agreed between the parties in writing and failing agreement, each Monday and Thursday between 6.30 pm and 7.00 pm with the father to initiate the call and the mother to facilitate the children receiving the call.
7.The children be permitted to communicate with the mother by telephone as agreed between the parties in writing and failing agreement, each Tuesday and Saturday (when the children are not in her care) between 6.30 pm and 7.00 pm with the mother to initiate the call and the father to facilitate the children receiving the call.
8.Changeover shall occur at school, or in the event of a non-school day, shall occur as agreed in writing between the parties and failing agreement at the Suburb M McDonalds Restaurant.
9.The parties be restrained by injunction from discussing with the children or either of them any matter pertaining to these proceedings, or a change of their present residential arrangements, without the prior written consent of the other parent, or by order of this Court.
10.The parties be restrained from denigrating or making negative comments about each other in the presence or hearing of the children, or either of them.
11.The parties be restrained from physically disciplining or verbally chastising the children or allowing or causing any third party to do so.
12.Each party do all acts and things and sign and execute all documents necessary to authorise any school at which the children attend or any medical practitioner upon whom the children attend to provide all requested information in respect to the children to the other party and to discuss all issues relating to the wellbeing of the children with the other party.
13.Each party do all things and sign all documents necessary to authorise and direct any school attended by the children, or either of them, to discuss with each of the parties the children’s school attendance and progress, furnish reports, photos and copies of correspondence, newsletters or other material produced by the school and distributed to parents or relating to the children, or either of them specifically and both parties shall be entitled to fully participate in all and any activities at the school or connected with the school.
14.Each party shall be entitled to attend all school events to which parents are invited to attend such as parent teacher interviews, school concerts, assemblies, prize giving’s and the like save and except that unless the parties agree each of them are not permitted to attend sporting events, extracurricular activities and sport related on field activities if the children are not in their care pursuant to these orders.
15.Each party shall keep the other advised as to significant medical, educational or other issues in respect to the children.
16.Each party shall advise the other party and keep the other party advised as to their current residential address, contact telephone numbers and advise the other party of any changes to these details within 24 hours of such change occurring.
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
BERMAN J
INTRODUCTION
Mr Moradi (“the father”) and Ms Rahimi (“the mother”) are unable to reach agreement in respect of the future parenting arrangements for X born 2012 and Y born 2014 (collectively “the children”).
By Amended Initiating Application filed 17 April 2023, the father seeks orders for all previous parenting orders to be discharged, that the parties have equal shared parental responsibility and that the children live with him and spend time with the mother for a total of five days each fortnight over two block periods.
The mother seeks orders as set out in her Amended Response to Initiating Application filed 22 February 2023 namely, that the parties have equal shared parental responsibility, that the children live with her and that X spends time with the father in accordance with his wishes and Y spends time with the father for four nights per fortnight.
Both parties propose that all handovers occur at school or, on a non-school day, at a McDonald’s Restaurant. They also seek mutual injunctive orders that each party is restrained from consuming alcohol or any illicit drugs. The father seeks a further restraint that the mother’s current partner, Mr C, be restrained from attending handover as well as any school related or extra-curricular activity.
Since separation, the mother alleges that the father has continued to perpetrate family violence towards both her and Mr C including, stalking, intimidating the mother and engaging in coercive and controlling behaviour.
The father alleges that the mother consumes excessive amounts of alcohol which puts the children at risk when they are in her care. The father also raises concerns about the children being in the presence of Mr C and alleges that Mr C was sexually inappropriate, deposing to an incident where he licked Y’s face. As a result of the allegations, on 29 July 2021, Orders were made restraining Mr C from being alone with the children or attending handovers or any school related or extracurricular activities that the father is likely to attend.
The children have endured a considerable amount of changes to the care arrangements including, several changes to their primary carer and significant gaps in time spending with both parents.
Although each party makes detailed allegations and counter allegations regarding conduct of family violence involving the use of illicit substances and excessive consumption of alcohol, the history is no longer the subject of ventilation.
There does however, remain a deep mistrust between the parties and their relationship is hostile. Whilst they both agree that it would be in the children’s best interest to spend significant time with the other parent, the parties are unable to effectively co-parent on an ongoing basis and there is a real risk that their relationship will disintegrate in the future which will directly impact the children’s care arrangements.
Whilst the issue of risk with respect to both the mother and father remains as an issue for the Court to determine, the Independent Children’s Lawyer (“ICL”) highlights that in circumstances where the parties have conceded equal shared parental responsibility and that the other parent should at least spend substantial and significant time with the children, the real issue in this case is the high level of hostility that remains between the parties. Also considered, is the impact that may have on the children and effecting any proposed orders which require the parties to communicate and come into contact with one and other on a regular and ongoing basis.
DOCUMENTS RELIED UPON
The father relies upon the following documents:-
(1)Amended Initiating Application filed 27 January 2023;
(2)Affidavit of the father filed 6 January 2023 (“the father’s trial affidavit”); and
(3)Notice of Risk filed 17 December 2020.
The mother relies upon the following documents:-
(1)Amended Response to Initiating Application filed 22 February 2023;
(2)Affidavit of the mother filed 22 February 2023 (“the mother’s trial affidavit”); and
(3)Affidavit of Mr C filed 28 May 2021.
The Independent Children’s Lawyer (“ICL”) relies upon the following documents:-
(1)Child Impact Report by Family Consultant Ms N dated 3 September 2021; and
(2)Family Assessment Report of Ms P dated 8 November 2022.
All parties filed a Case Outline document at the commencement of the proceedings.
BACKGROUND
The father was born in 1978 and is 45 years of age.
The mother was born in 1978 and is 45 years of age.
The parties commenced a relationship in or about 2008/2009 and were married in Country Q in 2010. The parties separated on a final basis on 28 April 2018.
In proceedings (SYC4013/2021), the father filed an Application for Divorce on 31 May 2021. In response to the father’s Application for Divorce, in proceedings (SYC8679/2021), the mother filed an Initiating Application on 22 November 2021 seeking that the marriage be declared null and void. For the reasons set out in my judgment of Rahimi & Moradi [2023] FedCFamC1F 151, I found that the parties were lawfully married and the grounds for the declaration of nullity do not exist.
The father is a full-time student studying to become an educator. He completed his studies in 2022 and anticipates that he will commence full-time employment as an educator shortly after the conclusion of the proceedings.
The mother is employed on a full-time basis in customer service.
The father has one adult daughter from a previous relationship who he has limited contact with. The father has not currently re-partnered.
The mother has re-partnered with Mr C. They underwent a marriage ceremony in 2018 however, that marriage is no longer valid in circumstances where I have found that the mother’s marriage to the father was valid and is not null and void.
History of the care arrangements and the proceedings
The children have been subject to multiple changes in their care arrangements and there have been significant periods where they have not spent time with either parent. The changes in the care arrangements appear to be as a result of the parties’ fundamental inability to communicate and support a relationship between the children and the other parent when interpersonal issues between the parties arise. It is apparent that there is some difficulty in their ability to co-parent.
At separation, the children remained living with the mother in the former matrimonial home and the father departed to Country R. The mother asserts that whilst the father was in Country R, he would watch her and the children on the cameras inside the home and then telephone the mother to ask what she was doing. The mother deposes at paragraph 46 to 47 of her trial affidavit, that upon the father’s return from Country R, he returned to the former matrimonial home. The mother did not want to live separated under the same roof so she left and found alternate accommodation. She asserts that the father did not allow her to take the children with her.
The mother returned to the former matrimonial home to pick up the children the following day only to discover that the father had changed the locks. The mother telephoned the police who undertook a welfare check on the children and determined that there was no risk to the children and given there were no parenting orders, the children remained at the former matrimonial home in the father’s primary care.
In or about May 2018, the father delivered the children into the mother’s care. The parties reached an informal agreement that the children would live with the mother and spend time with the father each alternate weekend from Friday to Sunday. The mother contends that this arrangement only lasted briefly and that before the end of May, the father was picking up and dropping off the children sporadically, at times that were suitable to him. The mother also deposes to occasions where the father would attend at the children’s school and day-care and unilaterally pick them up without informing her.
In mid-2018, there was an incident at a handover when the mother was delivering Y into the father’s care. Mr C had accompanied the mother to the handover. The father became enraged upon seeing Mr C and the mother asserts that, to avoid an altercation, Y remained in the car and that her and Mr C attempted to drive off. The father got in his car and attempted to run the mother’s car off the road. As a result of the incident, the Police issued the mother and Mr C with an interim Apprehended Violence Order (“AVO”) listing the father as the defendant.
The parties agree that between March 2019 and July 2019, the children returned to the mother’s primary care.
In or about July 2019, the children commenced living with the father. The parties agree that there was a change in the primary care arrangements, however they are in disagreement as to the reason why. The father asserts that the mother could not cope with caring for the children and asked the father to look after them whereas the mother deposes that the father did not make the children available for her to spend time with resulting in a significant decrease of her time spending.
In December 2020, the father sought for the Court to make orders that reflected the time spending arrangements namely, that the children live with him and spend time with the mother for five hours each fortnight. The mother’s Response, sought orders for the children to live with her and spend four nights a fortnight with the father.
On 17 March 2021, an Order was made by consent for the children to live with the father and spend time with the mother as agreed between the parties and failing agreement, each weekend on either Saturday or Sunday for a period of no more than three hours at S Shopping Centre.
By April 2021, the mother filed an Application in a Case deposing to significant concerns she held about the children in the father’s primary care. The mother alleged that the children were involved in a car accident which was caused by the father’s abuse of prescription drugs, that the father was encouraging the children to make false sexual abuse reports about Mr C and that the father was not complying with the Orders of 21 March 2021 by not making the children available for the mother to spend time with them.
On 29 July 2021, Orders were made reversing the primary care arrangements. It was ordered that the children live with the mother and spend four nights a fortnight with the father. An injunction was granted restraining Mr C from being alone with the children.
Following the Orders of 29 July 2021 being made, the mother alleged that the father breached the Orders on multiple occasions by failing to return the children into the mother’s care, attempting to exercise telephone time at unsuitably late hours, and secretly communicating with X for hours via a gaming console. The allegations were denied by the father however, in or about August 2021, the mother ceased the children’s time with the father.
As a result of the foregoing, on 2 September 2021, further Orders were made that stayed the father’s time with the children as set out in paragraphs 5 to 7 of the Orders made 29 July 2021.
Between September 2021 and October 2022, the children spent no time with their father however, the mother asserts that she has facilitated some sporadic communication between the children and the father upon the children’s request.
In October 2022, the mother communicated with the father to organise for the children to spend some time with him during the school holiday period.
Following the conclusion of the evidence on 2 March 2023, judgment was reserved however, the parties reached agreement for interim time spending orders as between the father and the children. The Orders of 2 March 2023 provide that until further order, the father spend time with the children each alternate week from the conclusion of school Friday until the commencement of school Monday and for the second week of the end of term school holidays.
On 23 April 2023, the mother filed an Application in a Proceeding seeking orders that the father’s time with the children pursuant to the Orders of 2 March 2023 be suspended until further order. Following a hearing on 5 May 2023, mutual restraints and injunctions were made prohibiting each party from approaching the children when the children were not in their care. The mother’s Application in a Proceeding was ultimately dismissed.
ISSUES TO BE CONSIDERED
The parties agree that there should be an order for equal shared parental responsibility however, they each contend that the children should live in their primary care but should spend significant and substantial time with the other parent.
The focus of the proceedings, is to determine whether the children should live in the primary care of the mother or the father. The father considers that the mother would not cope with the full time care of the children in circumstances where in July 2019, she agreed that the father should have primary care. The mother considers that if the children lived with the father, he would not support their relationship with the mother.
The parties are in high conflict although, they have developed an ability to communicate with each other. The root cause, and the partial explanation for the father’s aggressive stance towards the mother, is his intense dislike for the mother’s partner, Mr C. If Mr C was not involved, it is likely that the parties would be able to reach agreement.
A further consideration is the extent to which Mr C presents as a risk to the children arising from his conduct in licking Y’s face.
The consideration of the Court is to test the evidence in respect of the competing proposals of the parties, ascertain any issue as to practicality and if possible, consider what orders may limit the need for either party to resort to future litigation.
TREATMENT OF EVIDENCE
At the commencement of the trial, the Court highlighted the provisions of Division 12A of the Family Law Act 1975 (Cth) (“Act”) and in particular, whether the Court should dispense with the provisions of s 69ZT of the Act and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
Neither party nor the ICL spoke against the application of the provisions of s 69ZT of the Act.
I consider that the principles of s 69ZN of the Act will be better served by receiving the evidence of each of the parties relied upon, but exercising my discretion under s 69ZT(3) of the Act as to the weight which will be given to the evidence and in particular if it is contentious.
THE EVIDENCE
The father
The father’s evidence is that from early 2018, the mother consumed alcohol to excess and became verbally and physically abusive towards him. He considers that he was the primary carer of the children which was made necessary by the frequency of the mother going out at night. As such, the father and the children developed a close relationship.
Between April and December 2018, the children lived with the mother but spent regular time with the father. The father considered that it was a reasonable pattern and that the level of communication between the parties was such that a workable arrangement was in place.
In December 2018, the mother delivered the children into the care of the father at a time when Y was at preschool and X was attending kindergarten.
Whilst there is contention as to the extent of time that the mother spent with the children, it is broadly agreed that they remained in the father’s primary care until they returned to the mother’s care in July 2019 because the father was unemployed and did not receive any income.
The children then returned to the father’s care in July 2019 until 29 July 2021 when the father was ordered to return the children to the mother’s care.
The father did not see the children from September 2021 to October 2022.
The father denies that he consumed any illicit drugs and does not have any concern that the mother is a drug user. To underpin the father’s contention, he has taken two hair follicle tests with a negative result.
The tension between the parties, consequent upon the contested litigation, culminated in the father hitting his head with an object in early 2018 which then resulted in a provisional ADVO been taken out against the father with the mother listed as the protected party.
The father conceded that whilst at some stage he either ceased, or certainly lessened, his alcohol intake, he states that both parties at times drank alcohol to excess. The father denies that he ever smoked marijuana or that he was violent or aggressive.
The father did commence using medication prescribed by his medical advisers but he maintains that it was not to excess.
The father was ordered to undertake a hair follicle test within three weeks of the Orders of 17 March 2021. Understanding that the purpose of the Order was to ascertain a history of drug use by the father, he shaved his head and then undertook the test seven weeks out of time. Notwithstanding the efforts of the father, he still tested positive for codeine based pain medication. The mother’s concern arises from her mistrust of the father’s assertion that he no longer uses the prescription medication.
The father did concede that he forwarded email communication to a Judicial Registrar asserting that the mother’s partner, Mr C, was a paedophile with an indication that he would cease the mother’s time with the children if there was any opportunity for the children to come into contact with Mr C.
The father was not able to highlight any positive parenting skill or attribute of the mother and remained firm in his view that living with the mother was not in the children’s interests.
The father was challenged as to his preparedness to comply with Court orders and denies that he told the mother that the Court will do what he wants and that he will not follow orders if they are not to his liking. The father was not a convincing witness in this regard.
I have little doubt that the father has an overarching inability to abide the involvement of the mother’s partner with the children. He is not able to accept the mother’s relationship with her partner and considers it to be volatile and unstable.
The perceived inability of the father to comply with orders was the basis for the cessation of the mother’s time by the father.
The mother
The mother denied that she had offered to discontinue the ADVO if the father provided her with money.
Annexure “A” to the father’s trial affidavit represents a text message exchange between the parties as follows:
Father:I don’t have it to pay. If you give me [a] chance.
Mother: Which do you prefer?
Father:Because thats how ill have to do it to get an emergency payment
Father:Even if i am living here
Mother:Do you want your future or to pay me a lousy couple of hundred
Father:So are you saying if i don’t pay you you will tell the dv officer to proceed with the avo but if i pay you, you will not be contesting it. I don’t have much choice do i.
Mother:Well i need money so ill have to apply for an emergency payment
…
(As per the original)
The mother was not prepared to admit that she engaged in the text message correspondence with the father. The mother’s denial was unconvincing.
The mother was asked to consider a text message sent by her to the father in July 2019 as a precursor to the children going to live with the father. The mother agreed that she had forwarded the following message:-
I cannot cope looking after the children on a full-time basis. I don’t want them to live here anymore. Come and pick up the kids otherwise I’m going to leave them somewhere and then the police will say I’m an unfit mum. I can’t cope I want to wash my hands of everything.[1]
[1] Father’s trial affidavit 6.1.2023 at [62]
Whilst the mother agreed that the tenor of the text message was that the children would live with the father because she could no longer cope, she placed the change of primary care in context in that she considered the relationship between the parties in or around July and August 2019 to be more cooperative and perceived that the father was genuine in his efforts to spend more time with the children and to assist the mother so that she was able to work. It was at this time that the mother contends she considered the children spend four or five nights per fortnight with him.
The mother was favourably impressed with the father’s change of attitude that she considered they may be able to cooperate in a shared care arrangement.
The mother’s evidence is that the situation changed by late 2019 where the parties were no longer able to agree parenting arrangements with the children and the father became vitriolic in his allegations directed to the mother’s partner.
The mother confirms that the father’s time with the children came to an end in July 2021, following her Application for a recovery order.
The mother agrees that the police came to her home in late 2022. She states that she had been very stressed with life, the children, litigation and the father’s continuing allegations in respect of her partner. In addition, she and Mr C had a disagreement and she called the police. She conceded that both she, and Mr C, had consumed alcohol and argued about their finances.
Mr C alleged that the mother had assaulted him whereas the mother told the police that Mr C had either pushed or punched her to the back of the head.
Whilst the mother conceded the incident in late 2022, her evidence was that Mr C was now her “best friend” and she had not experienced any continuing or concerning behaviour exhibited by him.
A focus of the mother’s cross examination was to explore the circumstance surrounding Mr C licking Y’s face. The mother accepted that whilst it was unusual and had caused significant concern to the father, she did not consider that it was sexual in nature but rather that Mr C was being playful.
The allegation by the father, was the subject of a text message exchange between the parties in the following terms:-
Mother: They’re just hot some rules
Mother: And theres nothing wrong with that
Father: What rules. Nor to talk about there dad
Mother: They were normal rules
Father: Or seeing him naked and that he is circumcised
Mother: That was an accident
Father: Or turning them upside down as punishment
Mother: That was [Y’s] game actually
Father: Or licking [Y] all.over the face
Mother: He wint do that again
Mother:It was her cheek.
Father:It was all over her face every night.
Mother:If they are saying some not so nice things
Father:She still has nightmares about it
Mother:But he wasn’t ridey - rude
Father:She wakes up in the middle of the night screaming and saying please don’t lick me. I hate night time
Mother:It’s happened twice. And that’s coz she was biting his nose. And it never happened again[2]
(As per the original)
[2] Father’s Annexure to Affidavit Bundle filed 17 December 2020, page 31.
The issue for the mother is that the involvement of Mr C in her life was a catalyst for the father to make threatening remarks about him but of greater moment, is the damaging consequence of the inability of the parties to reach consensus concerning the parenting of the children.
The mother was asked to explain why X had been away from school for more than ten days in Semester 1, 2022. The mother stated that X was diagnosed with Covid-19, that she took the child to the GP, received a positive diagnosis and then she herself contracted Covid- 19. Y was also absent from school for more than 20 days, seven of which related to Covid-19 isolation and the balance of the absenteeism was made necessary by the children’s poor health.
The mother did conceded that she did not tell the father that Covid-19 had kept the children from school because she considered that to do so would only escalate the father’s threatening communication.
The parties were also not able to agree that the mother was appropriately attentive to the children’s health. In late 2022, the father took the children to his General Practitioner and obtained two medical certificates suggesting that Y and X were both underweight. The father alleges that X is sick on a weekly basis, does not eat much which has resulted in a low immune system, constant illness, stunted growth and bone density issues. The father considers that X’s physical appearance is that of a malnourished child.
The mother does not agree. She contends that she is diligent in respect of their health, that she does not agree with the father’s assessment and that there is no current medical diagnosis that is a source of concern as to the children’s health and development.
The mother’s evidence as to the day to day arrangements for the children was impressive. She set out in detail the morning routine emphasising that before the children go to school they have an appropriate breakfast. After school, the children are collected by the mother and are given an appropriate evening meal.
As discussed, the mother is keen for the children to spend time with the father at least each alternate weekend, the intervening Wednesday night and half of the school holiday periods with a week about arrangement over the end of Term 4 holiday period.
The mother recognised that the observations of the family report writer spoke of the father’s relationship with X in glowing terms.
Whilst the mother is fearful that the father will not respect or fully comply with orders once the children’s time resumes with him, she does concede that it would be in the children’s best interests to spend regular and frequent time with the father thereby maintaining an appropriate and meaningful relationship with him.
The mother was asked to consider whether she would agree that the father could attend X’s sporting games even if they were conducted whilst X was not in his care.
The mother does not want the father to attend at games during her time. She remains concerned that whilst the parties are able to communicate adequately, by respectful email and text messaging, coming into physical contact with each other may well be a bridge too far particularly in a school sports based or social setting.
The mother had given consideration to the children’s education and the children will go to T School which is well located between the homes of the parties and the children’s grandparents.
The mother presented her evidence reasonably and whilst I considered her evidence to be unreliable in terms of the circumstances surrounding the children living in the primary care of the father, her evidence concerning the current arrangements for the children demonstrated insight and careful consideration as to the children’s needs.
Mr C
Mr C presented as a reliable witness.
In particular, Mr C was the focus of a vitriolic and sustained campaign by the father seeking that he cease his relationship with the mother.
Annexed to the affidavit of Mr C is the following extract from a text message sent by the father:-
VERY IMPORTANAT FW: Border Watch – report suspicious student Visas
Hi [Mr C],
This is your last chance to seize all communication with [Ms Rahimi]. If you don’t I will be reporting you and your visa will be cancelled and you will be sent back to [Country U]. I don’t think [Ms Rahimi] is worth being sent back home. You told me you would not contact her again yet you did. You will need to contact me and let me know so I don’t proceed. If you don’t contact me and let me know what is happening you leave me with no choice. I don’t want no more issues. I just want you to be out of my Families [sic] lives forever.
I accept Mr C’s evidence that he has been the subject of harassing phone calls, text messages and threatening emails.
Mr C was questioned as to his relationship with the children and in particular, the basis upon which he had licked Y’s face.
I accept that whilst his conduct was odd, there is no evidence to suggest that it was sexual in nature.
Family Consultant
Following an order made by a Judicial Registrar on 3 June 2022, Ms P, Family Consultant, interviewed the parties, observed interaction between the children and each of the parties including, Mr C, and considered various court documents.
The family consultant identified that the purpose of the assessment was to consider the separate proposals of the parties and in particular, whether the children remain in the primary care of the mother as is currently the position or transition to the primary care of the father.
The family consultant gave careful consideration to the risk factors as between the parties and in particular, that each of the parties alleged that the other had been violent towards him or her.
The father is recorded as expressing a concern that the mother may have returned to her previous behaviour of excessive alcohol consumption. For her part, the mother highlighted her historical concern that the father used prescription pain medication to excess but now concedes that this is no longer problematic.
As anticipated, a significant focus of the father was the extent to which the children should be permitted to remain in the unsupervised presence of Mr C and whether there are violent arguments in the mother’s household.
The mother continued her complaint that the father had been controlling towards her and was cavalier in his noncompliance with court orders namely, her contention that the father would often return the children late or change the arrangements.
As a separate issue, the family consultant identified a potential area of concern was whether the number of changes to the children’s arrangements and the children transitioning between the parties was excessive and likely to fuel a breakdown in the parent’s relationship with each other.
The family consultant considered a range of collateral information comprising notes of the children’s psychologist from early 2021 which identify behaviour that the father considered was of concern namely, Mr C tipping the children upside down, holding Y by the hair and licking her face.
The family consultant had access to Department of Communities and Justice (“DCJ”) records in relation to reports made concerning the children but focusing on their interaction with Mr C.
The notes also revealed allegations made about the children complaining that the father was angry, cranky and had suffered from a medication induced seizure.
As at the date of interview and assessment, X was 9 years of age. He was seen alone and also in the company of each of the parties.
The family consultant recorded that X spoke of a warm relationship with Mr C and that he is good and kind to the children. To the extent that there was behaviour of Mr C that may have been concerning to the father or potentially of upset to the children, X advised that Mr C had not undertaken such behaviour for a long period of time.
Of greater importance, is the observation of X that the Court is “like a war” and that the parties remain in high conflict. Broadly speaking, X was much happier that his time with his father has resumed and he would like to spend each alternate weekend with the parties and alternating days during the week.
Y was eight years of age as at the date of the assessment. She spoke warmly of her relationship with Mr C and the broad impression gained by the family consultant was that she misses her mother’s home when she is with the father.
The family consultant observed the interaction of the children and each of the parties together with Mr C.
The relationship between the children, the mother and Mr C was recorded to be friendly and warm.
Similarly, the relationship with the children and their father demonstrated a close emotional attachment. The children were spontaneously affectionate when in the company of the father.
The family consultant did not consider that the mother was lax in her focus on the children’s schooling.
The family consultant was complementary of the father’s cessation of prescription medication but she remained concerned that his refusal to admit his medication use had become problematic and adversely affected the children may well be corroborative of the concerns raised by the mother that the father was controlling in his behaviour.
The focus of the family consultant was upon the future parenting arrangements for the children and she considered that the least disruptive option was for the children to live primarily in the mother’s care but spend significant and substantial time with the father. The prime focus was the extent to which there could be confidence that the father would support the children’s relationship with the mother whereas there was more confidence that the mother understood the importance of the children being supported in a relationship with the father.
Continuity and stability were considered important but what was required was for the proceedings to be brought to an end given the overarching concern that the very conflict itself was likely to present the greater risk to the children.
In evidence, the family consultant considered that shared care would not be in the children’s best interest given the potential for the spontaneous change in the relationship between the parties from cooperation and consensus to allegation and counter allegation.
PRINCIPLES RELEVANT TO PARENTING ORDERS
I consider it necessary that I adopt the approach that considers the practical reality of the separate parenting proposals of the parties.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interest test is to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I am cognisant of the primary and additional considerations in respect of the matters as set out in ss 60CC(2) and (3) of the Act.
I propose to adopt the following approach:-
(1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act namely, the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
(5)Have regard to additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act are to be considered and if more weight is to be given to one or more of the matters raised, then it must be the subject of delineation and comment;
(7)Section 61DA requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having appropriate regard to the matters as set out in s 61DA(2) which would rebut the presumption if a person or persons living with the child has engage in:-
(a)abuse of the child or another child, (who at the time was a member of the parents’ family), (or the other persons family); or
(b)family violence.
(8)Section 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the Court it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
Section 61DA requires the Court to consider whether to apply the presumptions of equal shared parental responsibility by having regard as to whether the matters as set out in s 61DA (if relevant) would rebut the presumption.
In that respect the provisions of s 61DA(2) are relevant:-
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who at the time was a member of the parent's family (or that other person's family); or
(b)family violence.
The presumption may also be rebutted if there is evidence that will satisfy the Court that it is not in the best interests of the child for the parties to have equal shared parental responsibility.
The parties both agree an order for equal shared parental responsibility. The issue therefore, is whether orders should be made for a shared care arrangement as sought by the father or whether the presumption should be rebutted and if so, whether the Court should make orders as sought by the mother namely, that the children live with her but that Y spends five nights with the father and X spends time with the father subject to his wishes.
I note the directions contained in s 60CC(2A) of the Act. I have regards to the allegations of the mother that the father has engaged in family violence comprising controlling and coercive behaviour. I have also considered the father’s allegation that Mr C, the potential for the mother to resume excess consumption of alcohol and the potential for a domestically violent relationship between the mother and Mr C may present as a risk to the children.
The orders sought by each of the parties are inconsistent with the Court being asked to place significant weight on the perceived behaviour and conduct of each of the parties.
The ICL does not support a finding that the children would be at risk either with the father or with the mother. Whilst a Court is not obliged to accede without proper consideration of orders as may be sought by each of the parties even if there is broad agreement between them, it is reasonable to find that whatever strength of feeling may be retained by each of the parties towards the other, the orders that they seek are inconsistent with a strong contention that there is risk in either party’s household.
As discussed, I do not consider that Mr C presents as a risk to the children. The concerns raised by the father may have been motivated by his desire to disrupt the relationship between Mr C and the mother or out of malice as a result of his upset and distress at Mr C who had been an employee of the father prior to entering into an intimate relationship with the mother.
I am satisfied from the evidence of the family consultant and the exploration and consideration of the police and DCJ investigations, that there should be no restriction placed on Mr C coming into contact with the children.
It is an important consideration that the family consultant observed the children to have a warm and close relationship with Mr C contrary to the allegation that he had acted in a sexually inappropriate manner towards Y.
PARENTING CONSIDERATIONS
Meaningful relationship
The consideration of what is intended by a "meaningful relationship" or "meaningful involvement" is one which is "important, significant and valuable to the child" (see Mazorski & Albright [2007] Fam LR 518).
The Court is entitled to assume that there is a benefit to all children in having a meaningful relationship with both of the parents, but that must always be considered from the aspect of the advantage to the child of having a meaningful relationship with one or other or both of the parties, rather than what outcome will promote a relationship with a parent.
As has been clearly mandated in the decisions of AMS v AIF (1999) 199 CLR 160 at [95] per Gaudron J, at [196] per Kirby J and in U v U (2002) 211 CLR 238 at [37] per Gaudron J, each of the separate proposals of the parties must be first identified and then be the subject of separate evaluation.
In Sigley v Evor (2011) 44 Fam LR 439 in the context of a relocation case, the Full Court undertook a review of the authorities with a view to defining "meaningful relationship" and in doing so at [136] quoted the following from the decision of Champness & Hanson (2009) FLC 93-407 ("Champness") at 83,502:
103.The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a "meaningful relationship" with both parents. This is an incorrect assumption. The Court's obligation is to make the orders most likely to promote the child's best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider "the benefit to the child" of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all the other relevant factors. …
(Emphasis in original)
At [136], the Full Court then went on to further cite the following observations of the Full Court in Champness (supra) at 83,513:-
191.The first and very important observation we would make about this complaint is that the expression "meaningful relationship" is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a "meaningful relationship".
In Mazorski & Albright [2007] Fam LR 518, Brown J commented on the definition of “meaningful” and said:-
26.What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. …when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. …
Whilst the history of the parenting arrangements has been unsettling, each party’s separate proposal, which is supported by their evidence, acknowledges that the children’s best interests are served by them maintaining a meaningful relationship with each parent.
Each of the proposals of the parties would ensure that a meaningful relationship is maintained between the children and their parents.
I am persuaded by the evidence of the family consultant that the mother is more likely to promote the children’s relationship with the father than the converse. The father’s conduct towards the mother has, at times, been vindictive and spiteful albeit motivated by his intense dislike for the mother’s current partner.
Views expressed by the children
The family consultant was impressed by the presentation of the children. Whilst somewhat shy, X was friendly and polite and he appeared to have a good understanding of why he was the subject of assessment.
X was clear that he liked going to his father’s home and was upset that there had been a period of time when had not seen the father.
He also enjoyed his time in the mother’s home and was complimentary of his relationship with Mr C.
X expressed a view that he would like to see each of the parties on an alternate week basis and alternating days during the week.
Y was less precise as to the time that she would like to spend with each of the parties although it is likely her preference is to remain in the mother’s primary care whereas X misses his father and would like to spend equal time in each household.
I do not consider that there is sufficient evidence regarding the views expressed by the children for their wishes to be determinative but rather, it corroborates the position of the parties that whatever the outcome, there should at least be significant and substantial time spent with the non-lives with parent.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in decision making and spend time and communicate with the children
Since 2021, the children have lived in the primary care of the mother. I do not draw any adverse inference in respect of the father’s conduct with having been the basis for no time spending but rather following the mother’s recovery order, the father’s time was ceased.
Each of the parties appear to focus on the importance of the children’s education. The father alleges that he would be best placed to pursue and support the children in their academic pursuits and he remains concerned at the period of time that the children were absent from school.
The mother does not accept the father’s proposition and considers that she has managed the children’s care appropriately.
I note the father’s allegation that he considered the children to be malnourished. No coherent evidence was put to the Court in relation to that particular allegation and I give it no weight.
The family consultant was broadly impressed with the mother’s ability to cater for the needs of the children.
I accept that both parties are interested, engaged and want to remain involved in the children’s care, welfare and development.
The extent to which each of the child’s parents have fulfilled or failed to fulfil the parent’s obligation to maintain the children.
As considered, the children have remained in the primary care of the mother since 2021. Even against the background of the father’s allegations that the mother has been less than diligent in her care of the children regarding health and education, the evidence supports a finding that the mother has maintained the children appropriately.
The level of financial support from the father is minimal and in that regard, the financial needs of the children have been met by the mother’s household and not with significant assistance from the father.
The likely effect of any change in the children’s circumstances including separation from either parent or other children
The parameters of the dispute would see the children’s time with the father increase to five nights a fortnight on the mother’s case and seven nights a fortnight on the father’s case.
Whilst the dispute appears to be of narrow compass, the family consultant considered that the children’s interests will be best served by identifying one parent as having primary care. The mother was considered to be the parent who was most likely to support the children not just in terms of their day to day needs but also in terms of their relationship with the father. The family consultant was not certain that the father would be able to support and promote the children’s relationship with the mother if he gained equal time.
The evidence of each of the parties was marred by mistrust and some level of exhaustion on the part of the mother in terms of the father’s pursuit of the children. The father’s evidence satisfied me that he was not in support of the mother’s household and the children’s relationship with her and in particular, Mr C. It is also problematic that the father does not accept that the children have a strong relationship with Mr C and his opposition to the mother’s relationship with Mr C is unlikely to be compartmentalised by him.
The children are aware of the conflict and consider that their parents have engaged in a “war”. The tragedy of this case is not the conduct of the parties but rather their inability to focus on the needs of the children and the level of upset and distress that has been occasioned to them.
There is merit in the observations of the family consultant and given that the most significant risk for the children is the ongoing litigation and the high level of conflict, the Court should strive to make orders that provide the best level of stability that the circumstances will allow.
I consider that weight should be placed upon the opinion of the family consultant and that the children should remain in the primary care of the mother but should enjoy significant and substantial time with the father.
Practical difficulties and expense of a child spending time with or communicating with a parent
There is not likely to be any practical difficulty in orders that either of the parties seek but in particular, as sought by the mother. At present, the mother has primary care and I have made favourable findings in respect of the weight to be placed on the mother’s current and future parenting arrangements for the children in terms of their education including proposals for High School.
The attitude to the children and the responsibilities of parents demonstrated by each of the children’s parents
I find that the mother is likely to support the children’s relationship with the father but that the converse is not necessarily so certain.
Each of the parties are invested with ensuring that the children are appropriately maintained in terms of their health, welfare and development. There is a proper focus on the children’s education and the parties are invested in ensuring that any health needs are dealt with promptly.
Family violence
Whilst there are aspects of the proceedings that involve allegations of family violence by each of the parties to the other, I am satisfied that the most significant risk to the children arises from the litigation rather than the historical conduct as between the parties.
I am however persuaded that during the course of the relationship and following separation, the father engaged in coercive and controlling behaviour as evidenced by the text messaging and at times, his unilateral and cavalier conduct in relation to the retention of the children.
Order that would be least likely to lead to the institution of further proceedings
I consider that an order for equal shared parental responsibility with the children to live with the mother and spend five nights a fortnight and half school holidays with the father would be in their interests.
I also bring to account the consideration of the family consultant that the number of transitions as between the parties may well be disruptive to the children.
I propose to order that the father’s time with the children be spent in one block rather than four nights in one week and one night in the intervening week.
The less contact that each of the parties have with the other, the less is the opportunity for there to be ongoing conflict.
The parties are however, able to communicate effectively via email or text messages and once the issue of contention is resolved, the parties have the potential to communicate in a civil and proper fashion.
I suspect that after a period of time, the parties may well settle into their own separate routine irrespective of the orders. If that occurs, then that is the best outcome for the children.
Other relevant matters
I note that the orders sought by the ICL support the orders sought by the mother namely, that the children remain in her primary care.
I make orders as appear at the commencement of these reasons.
I certify that the preceding one hundred and seventy-three (173) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 30 June 2023
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