Mudin & Bashar
[2022] FedCFamC1F 234
•11 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mudin & Bashar [2022] FedCFamC1F 234
File number(s): SYC 4881 of 2013 Judgment of: MCCLELLAND DCJ Date of judgment: 11 April 2022 Catchwords: FAMILY LAW – PARENTING – Islamic divorce – Where the child has not spent time with the father since 2015 – Where the mother has failed to facilitate the child’s supervised time with the father – Where the father disengaged from the proceedings for almost three years – Both parents engaged in coercive and controlling conduct against each other – Mother has made false allegations of physical violence against the father – Mother has influenced child’s negative view of the father – Change of residence would be traumatic for the child – Supervised time not viable – Order made for mother to have sole parental responsibility – Father to communicate with the child on special occasions – Child placed on airport watch list. Legislation: Evidence Act 1995 (Cth) s 140(2)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2A), 60I, 61DA, 65DAA, 65DAC, 121
Cases cited: A v A (1998) FLC 92-800; [1998] FamCA 24
Blinko & Blinko [2015] FamCAFC 146
Cotton & Cotton (1983) FLC 91-330
Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5
Hon Richard Chisholm ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010) 15
M and M (1998) 166 CLR 69; [1988] HCA 68
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 250
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Picton and Crowley [2017] FamCA 811
R v C [1993] FamCA 62
Sigley v Evor (2011) 44 Fam LR 439
Stott and Holgar [2017] FamCAFC 152
Division: Division 1 First Instance Number of paragraphs: 282 Date of hearing: 27–29 September 2021, 1 October 2021, 7–8 October 2021, 16 November 2021 Place: Sydney (via videolink) Counsel for the Applicant: Mr Strik Solicitor for the Applicant: Jack Rigg Solicitors Counsel for the Respondent: Ms Kaiti Solicitor for the Respondent: A & J Montgomery Legal Counsel for the Independent Children's Lawyer: Ms Messner Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 4881 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MUDIN
Applicant
AND: MS BASHAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
11 APRIL 2022
THE COURT ORDERS THAT:
Parental responsibility
1.The mother have sole parental responsibility for X born in 2012 (“the child”).
Live with
2.The child live with the mother and spend time with the father as follows:
(a)in respect to the period until the child turns 13 years of age, as agreed to between the father and the mother in writing; and
(b)as and from the time that the child turns 13 years of age, in accordance with the wishes of the child.
Communication
3.The father may communicate with the child by way of cards, gifts and letters on the child’s birthday and during Eid, with such correspondence to be posted to the child at the child’s place of residence.
4.The mother shall, on receipt of any correspondence or items from the father in accordance with Order (3) above, provide such correspondence or items to the child.
Exchange of information
5.The mother shall forthwith notify the father of the following information:
(a)The address at which the child resides;
(b)The name of the school that the child attends;
(c)The name of the child’s treating general practitioner and any other medical treatment provider; and
(d)The details of any extracurricular activities that the child is involved in.
6.The parents shall otherwise keep one another informed at all times of:
(a)Their current residential address and contact telephone number and advise the other parent of any change in such details within 24 hours of such change occurring;
(b)Any medical problems or illnesses suffered by the child while in their respective care;
(c)Any medication that has been prescribed for the child; and
(d)Any other matter relevant to the child’s welfare and development.
7.In the event of the child suffering a medical emergency requiring medical attention whilst in the care of either parent:
(a)The other parent is to be notified as soon as practicable via SMS text message;
(b)The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable; and
(c)The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and information retained by them upon request.
Restraints
8.Both parents are restrained by injunction from using or attempting to use any surname other than the surname Mudin in respect of the child, either formally or informally, for any purpose whatsoever.
9.The parents are restrained by injunction from denigrating the other parent, or members of the other parent’s family, to or in the presence or hearing of the child and shall immediately remove the child from the vicinity of any other person doing so.
10.The parents are restrained by injunction from physically disciplining the child or permitting any other person to physically discipline the child.
Airport Watch List
11.That each party, MR MUDIN born in 1983 and MS BASHAR born in 1983, and their servants and/or agents are hereby restrained by injunction, irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing, attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia until 14 May 2030.
12.IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist, in force at all points of arrival and departure in the Commonwealth of Australia, and maintain the child's name on the Watchlist until the above date or unless the Court orders its removal.
Procedural Orders
13.Within seven (7) days of the date of these Orders, the Independent Children’s Lawyer meet with the child, either by Microsoft Teams or in person if permitted, to explain to the child the Orders made by the Court.
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 the pseudonym Mudin & Bashar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION
These are parenting proceedings in respect to X, born in 2012 (“the child”), who is nearly 10 years of age. The applicant is the child’s father, Mr Mudin, born in 1983 (“the father”). The respondent is the child’s mother, Ms Bashar, born in 1983 (“the mother”). The parties have been in dispute regarding parenting arrangements since the child was approximately 8 months of age. The child has lived with his mother all of his life. He has not seen his father since 2015. The mother has re-partnered and the child now lives with his mother, his stepfather and two half-brothers. The father has also re-partnered and the child has two half-sisters who he has never met.
I have found that it is likely that volatility, mutual disrespect and controlling and coercive behaviour have been features of the parties’ relationship during its course, and that volatility has remained in periods where they have interacted subsequent to the termination of their relationship. I have not, however, accepted the mother’s evidence that the father has engaged in acts of serious physical violence against her, as she alleges. There are, however, indications that the father has engaged in controlling and coercive conduct and, equally, there is evidence that the mother has engaged in manipulative conduct directed towards the father.
I have found that the conflict between the parties is such that it has also embroiled the parties’ broader family members.
I have found that the mother has acted in a grossly irresponsible manner in failing to facilitate the child spending time with the father including in accordance with orders of the Court. Equally, I have found that the father acted in an irresponsible manner in disengaging from the proceedings between 2016 and 2019 which has, in large part, contributed to the current circumstances where the child has not spent time with the father during the child’s formative years.
The child is emphatic in the expression of his wish not to spend time with the father and there is a substantial issue as to the extent to which it can reasonably be expected that the parents would cooperate in facilitating the child attending family therapy, with a view to the child’s relationship with his father being repaired. I have found that there is little likelihood of the mother facilitating the child having a relationship with the father, even with the support of a family therapist.
In circumstances where the evidence indicates that the child is a well-adjusted child, is performing well at school, is participating in appropriate extra-curricular activities and is engaging appropriately with his peers, I have determined that the benefit of the child having a meaningful relationship with his father is outweighed by the risk to the child of being exposed to ongoing parental and broader family conflict that would inevitably occur if orders are made mandating the mother to facilitate the child having a relationship with the father.
I have, nonetheless, made orders providing for the father to communicate with the child by sending cards, letters and small gifts on special days. Hopefully, this will sow the seeds of a relationship that can be acted upon by the child at a point in time where he is not as influenced by the mother in his negative views of the father, which have resulted in the child’s unwillingness to spend time with his father.
BACKGROUND
Length of marriage and subsequent relationship
The father was born in 1983 and is now 38 years of age. The mother was born in 1983 and is also 38 years of age. The parties have one child from their relationship, X, born in 2012 and now aged 9.
The father is employed as a transport professional and the mother is employed as a professional.
The parties met in August 2008 and married by way of an Islamic marriage contract that was formalised in March 2009, with the wedding ceremony taking place in July 2009. There was a controversy in the proceedings as to whether the parties’ marriage was an arranged marriage. It has not been necessary to resolve that issue for the purpose of this decision.
It was not disputed that, in or about October 2012, the marital tension between the parties was such that the father moved out of the marital bedroom and began sleeping on the couch. I am satisfied that the relationship between the parties during the period that they cohabited was volatile. The parties subsequently separated in January 2013.
The father remarried in 2015 and has two children with his current partner, while the mother remarried Mr A in 2017.
Events during the relationship
The mother alleges that throughout the parties’ relationship, the father would:
·Forcefully require her to engage in sex with him;
·Make violent contact with her including frequently pushing her to the ground;
·Dictate what she would wear;
·Insist on knowing her whereabouts;
·Constantly belittle her;
·Regularly insult her including calling her vulgar names including in front of his parents; and
·Encourage his family to insult the mother.
The father denies that he engaged in any such conduct.
For reasons which I set out below, I am not satisfied that the father engaged in the acts of physical violence as alleged by the mother. On the other hand, there is at least one aspect of the father’s evidence that gives me reason to believe that he may have engaged in controlling conduct directed towards the mother, both during the course of their relationship and in respect to at least one incident after their separation.
In early 2013, the father filed for an Islamic divorce. An agreement was subsequently drawn up by the Islamic Judicial Council which included:
·Age appropriate visitation rights;
·That the father pay $300 weekly for 3 months in addition to child support; and
·After 3 months, that the father pay $75 in addition to child support.
There is a dispute between the parties as to the extent to which that document was consensual. However, it has not been necessary to determine that issue as the terms of any such agreement have not influenced my decision in this matter.
Post separation events
For a relatively brief period following the parties’ separation, the child spent some time with the father as organised between the parents. Regrettably, however, those arrangements broke down when the child was about 15 months old following a dispute that occurred between the parties in a park located near the mother’s sister’s residence.
The mother contends that the incident which gave rise to her ceasing to facilitate the child having contact with the father occurred on 31 August 2013, when she attended the park usually attended to facilitate changeover with the child, accompanied by her brother-in-law, to meet the father. The mother contends that aggressive conduct on the part of the father motivated her decision to stop facilitating the child spending time with the father. The father has spent very little time with the child since that time. The father disputes that he was aggressive and contends that the aggression was displayed by the mother and her brother-in-law.
The father commenced proceedings in the Federal Circuit Court of Australia, as it was then known, on 23 August 2013, at which time the mother was living at her sister’s residence in Suburb B.
There have been several orders of the Court requiring the mother to cooperate with a supervised contact regime by taking the child to visit the father at several different contact centres. For reasons which I set out below, I am satisfied that the mother has failed to cooperate with the purpose and intent of those orders and, indeed, has acted in a manner to deliberately thwart the success of those contact visits, thereby depriving the child of the opportunity to have a relationship with his father.
The father has not spent time with the child since supervised contact occurred in December 2015 at a contact centre in Suburb C.
At paragraph 51 of his affidavit filed 9 September 2021, the father attests that “in late 2017 I indicated my intention to withdraw from court proceedings as I felt [the mother’s] hindrance of proceedings and disregard for court orders was delaying any chance of forming a relationship with [the child].” The father further contends that this decision resulted from the fact that he was financially unable to commit to the mounting legal costs associated with the proceedings and unfortunate health concerns regarding his daughter from his new relationship. There are, however, inconsistencies in the father’s explanation as to why he effectively withdrew from the proceedings in 2017.
As will be set out below, there has been a protracted litigation history which, in large part, has been a result of the father failing to engage in the proceedings. This has been a contributing factor to the current situation where the child has not spent time with the father since 2015.
The evidence presented to the Court is that the child does not wish to have contact with his father.
While his initiating application pressed for orders for a change in residence, the father’s case was substantially modified during the course of the proceedings, such that he is seeking orders that would have the effect of re-establishing the child’s relationship with him.
LITIGATION HISTORY
On 23 August 2013, the father filed his initiating application and affidavit in the Federal Circuit Court, as it was then known.
On 31 October 2013, the parties attended the first mention before Judge Walker, who appointed an Independent Children’s Lawyer (“ICL”).
On 19 December 2013, there was a further mention before Judge Walker, who entered orders for the parties to participate in an intake assessment at the Contact Centre D. The parties were also directed to attend a child dispute conference with a family consultant.
On 4 April 2014, there was a further mention before Judge Walker, at which time orders were made by consent. Those orders provided for the child to live with the mother and spend time with the father once per week at the Contact Service E.
On 4 September 2014, there was a further mention before Judge Walker who made orders for the preparation of a family report.
On 14 November 2014, the father filed an amended initiating application seeking orders, inter alia, for there to be a change in the child’s residence.
On 17 December 2014, the family report prepared by Dr F dated 10 December 2014 was released to the parties.
On 18 December 2014, the father filed an application in a case seeking interim orders for the child to spend time with him on Sundays from 12 pm to 3 pm. The father also filed a contravention application on the same day.
On 4 February 2015, the matter was mentioned before Judge Henderson who directed that the matter be transferred to the Family Court of Australia, as it was then known.
On 2 July 2015, the matter was mentioned before Le Poer Trench J, who ordered that the child spend supervised time with the father for a period of two hours per fortnight at the Contact Service D.
On 27 August 2015, there was a further mention before Le Poer Trench J, who made an order restraining the father from taking photos of the child. This injunction was a condition precedent to the mother signing the service agreement for the Contact Service D.
On 14 October 2015, there was a further mention before Le Poer Trench J, who ordered that the mother was to facilitate the child spending time with the father at the Contact Centre G in Suburb C. His Honour made further orders requiring the mother to bring the child to the Court on 27 October 2015 in order for the child to spend some time with the father under the observation of a family consultant. The mother subsequently failed to comply with that order.
On 28 October 2015, Le Poer Trench J made in chambers order releasing the Limited Issues Report of Ms H and also requiring the mother to bring the child to the Court on 11 November 2015. The order further provided that if the mother did not comply with that order, the ICL and/or the father had leave to apply for a warrant for the mother’s arrest or delivery of the child to the father’s care.
On 11 November 2015, the child spent time with the father under the supervision of family consultant Ms H at the Family Court Registry in Sydney. The family consultant reported positive interaction between the child and the father and stated that no concerns arose.
Also on 11 November 2015, Le Poer Trench J made orders for the child to spend ongoing time with the father fortnightly at Contact Centre G, on the basis that the cost of that supervision was met by the father.
On 9 February 2016, the matter was again listed for mention before Le Poer Trench J, at which time directions were made for further listing for the Court to hear the father’s application in a case seeking that the child spend unsupervised time with him. That matter was listed on 4 March 2016. Further orders were made with a view to requiring the mother to cooperate in the child spending time with the father at Contact Centre G.
On 24 February 2016, the father requested that the interim hearing scheduled for 4 March 2016 be vacated. This was the commencement of the period where the father appeared to disengage from the proceedings. It was noted that the father had remarried in early 2016, however this was not put to the father as being the motivating factor for him withdrawing from the proceedings. Accordingly, while one can only speculate as to the father’s reasons, the fact remains that he did withdraw from prosecuting the proceedings for a period of almost three years.
On 23 August 2016, there was no appearance by the father or his legal representative at a telephone mention before a registrar of the Court.
On 14 September 2016, the matter was listed before me for mention where I ordered for the proceedings to be set down for final hearing over five days on dates to be allocated and the parties to be notified of such dates.
On 10 May 2017, the matter came before me for further mention, at which time I set the matter down for final hearing for four days, commencing 11 December 2017. Orders were also made to obtain an updated family report. Further orders required the parties to undertake to comply with orders for the child to spend supervised time with the father.
The parties were scheduled to attend appointments with the family consultant on 25 September 2017 for the purpose of obtaining an updated family report. The father refused to attend such an appointment until he had supervised contact with the child. The mother contacted Child Dispute Services on the morning of the appointment and advised that she was unable to attend as a result of feeling unwell.
Further appointments were therefore made for the parties to attend Child Dispute Services on 29 September 2017. The mother again contacted the Court on the morning of the scheduled appointments to advise that she was unable to attend due to poor health. The father did not attend the interviews on that day.
On 3 October 2017, orders were made for the release of the updated family report of Kelly J and the matter was listed for case management directions on 18 October 2017.
On 18 October 2017, there was no appearance by the father and I made orders that the final hearing scheduled to commence on 11 December 2017 for four days be vacated. The parties were given liberty for the matter to be relisted on the basis that the parties inter-alia:
·File affidavits indicating they are in a position to prosecute their case;
·Undertake to comply with all procedural directions of the Court, including attending upon a family consultant.
On 16 January 2018, I made orders in chambers which provided for the ICL to be discharged unless a party serves an affidavit indicating they are in a position to prosecute their case.
On 2 August 2018, the mother filed an affidavit requesting that the Court reopen the proceedings.
On 17 December 2018, I made orders which, inter-alia, provided that the parties were to file and serve, respectively, amended initiating applications and responses together with supporting affidavits.
On 15 February 2019, I made orders for an updated family report to be prepared and for the matter to be relisted on 16 December 2019 for further directions consequent to the receipt of that report.
On 19 November 2019, the family report prepared by Ms K, dated 11 November 2019, was released to the parties.
On 16 December 2019, I made orders appointing a single expert witness to provide a comprehensive psychological assessment of the mother. The parties were to share the cost of the report, however, neither party took steps to arrange for that to occur.
On 4 May 2020, the mother filed an application in a case seeking orders for the discharge of the ICL appointed in the proceedings and for the appointment of a new ICL.
On 5 May 2020, the matter was listed for further directions before me. I indicated to the parties that the Court was not prepared to set the matter down for hearing until a report from Ms L was available and noted that, in the absence of one or other of the parties meeting the costs of the report, further delay in the proceedings was a distinct possibility. Neither party agreed to pay the cost of Ms L despite those orders.
On 12 May 2020, the matter was listed before me at which time I noted that the mother discontinued her application in a case filed on 4 May 2020.
On 15 June 2020, the proceedings were set down before me for final hearing commencing 22 March 2021 with an estimated hearing time of five days.
On 10 February 2021, orders were made adjourning the final hearing from 22 March 2021 until 13 September 2021.
On 9 August 2021, trial directions were made for the matter to be heard electronically by way of Microsoft Teams for four days commencing 13 September 2021.
On 7 September 2021, orders were made adjourning the commencement of the hearing until 16 September 2021.
On 15 September 2021, the matter was listed before me in order to hear the mother’s application to adjourn the final hearing set to commence on 16 September 2021. The matter subsequently proceeded to final hearing on 27 September 2021 for three days, with further hearing on 1, 7 and 8 October 2021.
DOCUMENTARY EVIDENCE
The father relied upon the following documents:
·Affidavit of the father filed 9 September 2021;
·Affidavit of the father’s partner filed 30 July 2021; and
·Family report of Dr F dated 10 December 2014.
The mother relied upon the following documents:
·Response filed by the mother on 19 December 2013;
·Affidavit of the mother filed 6 August 2021;
·Affidavit of Mr M filed 6 August 2021;
·Affidavit of the mother filed 7 September 2021;
·Notice of Risk filed by the mother on 19 December 2013;
·Affidavit of psychologist, Mr N, filed 22 September 2021; and
·Tender bundle of documents produced under subpoena, provided 26 September 2021.
The ICL relied upon the family report of Ms K dated 11 November 2019.
APPLICATIONS
To their credit, each of the parties significantly modified their initial applications in the context of evidence presented during the course of the proceedings.
The final minute of order proposed by the father, as set out in Exhibit 12, is as follows:
Parental Responsibility
1.That the mother and father have equal shared parental responsibility for [X] born […] 2012 (“the child”).
Live with
2. That the child live with the mother. Time with
3. That the child spend time with the father as follows:
3.1For a period of four (4) weeks, from the conclusion of school on Friday or any other school day that’s available, or 3pm if that day is a non-school day, until 7pm, to be supervised by a private supervision agency such as [Supervision Service O], with such costs of supervision to be borne by the father.
3.2Following the time provided in Order 3.1 herein, for a period of four (4) weeks, from 9am until 2pm each Saturday or Sunday with changeover to be effected with the assistance of a private supervision agency such as [Supervision Service O], with such costs of changeover to be borne by the father.
3.3Following the time provided in Order 3.2 here, for a period of eight (8) weeks, from the conclusion of school on Friday or 3pm if that day is a non-school day, until 5pm on Saturday in each alternate week, with changeover to be effected with the assistance of a private supervision agency such as [Supervision Service O], with such costs of changeover to be borne by the father, if changeover is not taking place at the child's school.
3.4 Thereafter:
3.4.1During school term time, from the conclusion of school on Friday (or 9am if that day is a non-school day) until the commencement of school on Monday (or 5pm if that day is a non-school day) in each alternate weekend.
3.4.2During the school holiday periods at the conclusion of Terms 1, 2 and 3, for one (1) week commencing at the conclusion of the last day of school term until 9am on the following Saturday at the midpoint of the school holiday period, unless otherwise agreed between the parties in writing.
3.4.3During the school holiday period at the conclusion of Term 4, for two (2) separate one (1) week periods, taken in separate blocks, the first to commence at the conclusion of the last day of school until 9am on the morning of the 8th day thereafter, and the second to commence at 5pm at the conclusion of the 3'd week of the school holiday period until 9am on the morning of the 8'h day thereafter, unless otherwise agreed between the parties in writing.
4.That the father notify the mother and the child's school of the start date for supervised time pursuant to Order 4.1 herein.
Special Occasions
5.That unless otherwise agreed between the parties in writing, the child spend time with the father from 9am on the day of Eid-ul-Fitr until 5pm three days later.
6.That unless otherwise agreed between the parties in writing, the child spend time with the mother from 9am on the day of Eid-ul-Adha until 5pm three days later.
7.That notwithstanding any other Order herein, the child spend time with the mother from 5pm on the night immediately before Mother's Day until the commencement of school on the Monday immediately after Mother's Day.
8.That notwithstanding any other Order herein, the child spend time with the father from 5pm on the night immediately before Father's Day until the commencement of school on the Monday immediately after Father's Day.
Therapeutic assistance
9.That this Order authorise the father to engage the assistance of a child and family therapist (“the therapist”) to provide a forum for the child to discuss any difficulties encountered with the time arrangements and the father shall forthwith provide to the mother the name of the therapist and details of any appointment scheduled between the child and the therapist.
Changeover
10.That to effect changeover of the child where not specified in these Orders, unless otherwise agreed in writing, the father shall collect the child from school or the maternal grandfather's residence at the commencement of his time and the father shall return the child to school or the maternal grandfather's residence at the conclusion of his time.
Exchange of information
11. That the mother shall forthwith notify the father of the following information:
11.1 The address at which the child resides;
11.2 The name of the school at which the child attends;
11.3The name of the child's treating general practitioner and any other medical treatment provider; and
11.4The details of any extracurricular activities that the child is involved in.
12. The parents shall otherwise keep one another informed at all times of:
12.1Their current residential address and contact telephone number and advise the other parent of a change in such details within 24 hours of such change occurring;
12.2Any medical problems or illnesses suffered by the child while in their respective care;
12.3 Any medication that has been prescribed for the child;
12.4Any social, school or religious functions which the child is to attend; and
12.5 Any other matter relevant to the child's welfare
13.In the event of the child suffering a medical emergency requiring medical attention whilst in the care of either parent:
13.1 The other parent is to be notified as soon as practicable;
13.2The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable; and
13.3The medical practitioner or facility is to be advised that both parents have access to the child's medical records and information retained by them upon request.
Communication
14.The parents shall communicate in relation to all matters concerning the child including any decisions to be made in regard to the child's education, health and extracurricular activities, by email or by text, save for in an emergency, where they shall communicate via text message.
15.In the event that the parties are unable to reach agreement regarding the child's education, health and/or extra-curricular activities, they are to both forthwith attend upon a mediator, with the mother to provide three names of proposed mediators within 48 hours and the father to select one 48 hours thereafter, to resolve the dispute.
Restraints
16.That the mother be restrained from attending the child's school at the commencement of the father's time or authorising any other person to attend the child's school at the commencement of the father's time.
17.That both parents are restrained by injunction from using or attempting to use any surname other than the surname [MUDIN] in respect of [X], born […] 2012, either formally or informally for any purpose whatsoever.
18.That the parents are restrained by injunction from denigrating the other parent or members of the other parent's family to or in the presence or hearing of the child and shall immediately remove the child from the vicinity of any other person doing so.
19.That the parents are restrained by injunction from physically disciplining the child and permitting any other person to physically discipline the child.
Airport Watch List [MR P]
20. That each party, [MR MUDIN] born […] 1983 and [MS BASHAR] born […] 1983 and their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child, [X] born […] 2012 from the Commonwealth of Australia until 14 May 2030.
21.AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist until the above date or unless the court orders its removal.
Procedural Orders
22.That the parties have liberty to apply on 7 days' notice to the Court and to the other party in the event of non-compliance with these Orders
(As per the original)
The final orders sought by the mother, as set out in Exhibit 13, are as follows:
1)All previous parenting Orders be discharged.
Parental responsibility
2)The mother have sole parental responsibility for the child [X] born […] 2012.
Live and Communication
3)The child live with the mother.
4)The child shall spend no time and have not communication with the father.
5)The Father communicate with the children by way of cards, gifts and letters on the child’s birthday and Eid with such correspondence to be posted to the child to a postal address to be advised by the mother to the Father within seven days of these Orders and the mother to advise the Father of any change in postal address within 48 hours of such change.
6)The mother shall on receipt of any correspondence or gifts from the Father in accordance with Order 5 herein be permitted to exercise her discretion to provide such correspondence or gifts to the child after reading any content.
7)The mother provide the father by way of email copies of the child’s school reports.
Other orders
8)[X] born […] 2012 is permitted to travel internationally without the consent of the father to be provided to the issue of a passport to [X] born […] 2012
9)The mother shall be the only person with ‘parental responsibility’ of the child [X] born […] 2012 for the purposes of applying for and being issued with an Australian passport for [X] born […] 2012.
(As per the original)
The orders sought by the ICL, as set out in Exhibit 11, are as follows:
1. That all previous parenting Orders be discharged.
Parental Responsibility
2.That the mother and father have equal shared parental responsibility for [X] born […] 2012 (“the child”).
Live with
3. That the child live with the mother.
Time with
4. That the child spend time with the father as follows:
4.1For a period of four (4) weeks, from the conclusion of school on Friday, or 3pm if that day is a non-school day, until 7pm, to be supervised by a private supervision agency such as [Supervision Service O], with such costs of supervision to be borne by the father.
4.2Following the time provided in Order 4.1 herein, for a period of four (4) weeks, from 9am until 2pm each Saturday, with changeover to be effected with the assistance of a private supervision agency such as [Supervision Service O], with such costs of changeover to be borne by the father.
4.3Following the time provided in Order 4.2 here, for a period of eight (8) weeks, from the conclusion of school on Friday or 3pm if that day is a non-school day, until 5pm on Saturday in each alternate week, with changeover to be effected with the assistance of a private supervision agency such as [Supervision Service O], with such costs of changeover to be borne by the father, if changeover is not taking place at the child’s school.
4.4 Thereafter:
4.4.1During school term time, from the conclusion of school on Friday (or 9am if that day is a non-school day) until the commencement of school on Monday (or 5pm if that day is a non-school day) in each alternate weekend.
4.4.2During the school holiday periods at the conclusion of Terms 1, 2 and 3, for one (1) week commencing at the conclusion of the last day of school term until 9am on the following Saturday at the midpoint of the school holiday period, unless otherwise agreed between the parties in writing.
4.4.3During the school holiday period at the conclusion of Term 4, for two (2) separate one (1) week periods, taken in separate blocks, the first to commence at the conclusion of the last day of school until 9am on the morning of the 8th day thereafter, and the second to commence at 5pm at the conclusion of the 3rd week of the school holiday period until 9am on the morning of the 8th day thereafter, unless otherwise agreed between the parties in writing.
5.That the father notify the mother and the child’s school of the start date for supervised time pursuant to Order 4.1 herein.
Special Occasions
6.That unless otherwise agreed between the parties in writing, the child spend time with the father from 9am on the day of Eid-ul-Fitr until 5pm three days later.
7.That unless otherwise agreed between the parties in writing, the child spend time with the mother from 9am on the day of Eid-ul-Adha until 5pm three days later.
8.That notwithstanding any other Order herein, the child spend time with the mother from 5pm on the night immediately before Mother’s Day until the commencement of school on the Monday immediately after Mother’s Day.
9.That notwithstanding any other Order herein, the child spend time with the father from 5pm on the night immediately before Father’s Day until the commencement of school on the Monday immediately after Father’s Day.
Therapeutic assistance
10.That this Order authorise the father to engage the assistance of a child and family therapist (“the therapist”) to provide a forum for the child to discuss any difficulties encountered with the time arrangements and the father shall forthwith provide to the mother the name of the therapist and details of any appointment scheduled between the child and the therapist.
Changeover
11.That to effect changeover of the child where not specified in these Orders, unless otherwise agreed in writing, the father shall collect the child from school or the maternal grandfather’s residence at the commencement of his time and the father shall return the child to school or the maternal grandfather’s residence at the conclusion of his time.
Exchange of information
12. That the mother shall forthwith notify the father of the following information:
12.1 The address at which the child resides;
12.2 The name of the school at which the child attends;
12.3The name of the child’s treating general practitioner and any other medical treatment provider; and
12.4The details of any extracurricular activities that the child is involved in.
13. The parents shall otherwise keep one another informed at all times of:
13.1Their current residential address and contact telephone number and advise the other parent of a change in such details within 24 hours of such change occurring;
13.2 Any medical problems or illnesses suffered by the child while in their respective care;
13.3 Any medication that has been prescribed for the child;
13.4Any social, school or religious functions which the child is to attend; and
13.5 Any other matter relevant to the child’s welfare
14.In the event of the child suffering a medical emergency requiring medical attention whilst in the care of either parent:
14.1 The other parent is to be notified as soon as practicable;
14.2The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable; and
14.3The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and information retained by them upon request.
Communication
15.The parents shall communicate in relation to all matters concerning the child including any decisions to be made in regard to the child’s education, health and extracurricular activities, by email, save for in an emergency, where they shall communicate via text message.
16.In the event that the parties are unable to reach agreement regarding the child’s education, health and/or extra-curricular activities, they are to both forthwith attend upon a mediator, with the mother to provide three names of proposed mediators within 48 hours and the father to select one 48 hours thereafter, to resolve the dispute.
Restraints
17.That the mother be restrained from attending the child’s school at the commencement of the father’s time or authorising any other person to attend the child’s school at the commencement of the father’s time.
18.That both parents are restrained by injunction from using or attempting to use any surname other than the surname [MUDIN] in respect of [X], born […] 2012, either formally or informally for any purpose whatsoever.
19.That the parents are restrained by injunction from denigrating the other parent or members of the other parent’s family to or in the presence or hearing of the child and shall immediately remove the child from the vicinity of any other person doing so.
20.That the parents are restrained by injunction from physically disciplining the child and permitting any other person to physically discipline the child.
Airport Watch List
21.That each party, [MR MUDIN] born […] 1983 and [MS BASHAR] born […] 1983 and their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child, [X] born […] 2012 from the Commonwealth of Australia until 14 May 2030.
22.AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist until the above date or unless the court orders its removal.
Procedural Orders
23.That the parties have liberty to apply on 7 days’ notice to the Court and to the other party in the event of non-compliance with these Orders.
24.That within seven (7) days of the date of these Orders, the Independent Children’s Lawyer meet with the child, either by Teams or in person if permitted, to explain the Orders made by the Court.
25.That the parties have leave to serve a copy of these orders upon the child’s school, or any future school, the child’s treating doctors and other medical treatment providers, and any organisation where he attends for extracurricular activities.
The law – concepts and principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII. These are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Significantly, in Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ gave emphasis to the fact that:
Subdivision B of Div 1 of Pt VII [of the Act], which is headed “[o]bject, principles and outline”, provides, inter alia, in s 60B(1) that the objects of Pt VII include “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”.
(Italicised emphasis in original)
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
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 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 family violence.
Further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. For reasons which I subsequently explain, I have determined that it is not in the interests of the child for the presumption to apply, in the context of the lack of cooperation between the parents.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
·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 from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: ss 60CC(2)(b) of the Act.
Meaningful relationship
Section 60CC(2)(a) of the Act requires me to consider the “the benefit of the child having a meaningful relationship” with each of the parties. On the other hand, I must consider the issue of the risk associated with the children possibly being subject to physical or psychological harm, neglect or abuse in the care of either of the parties.
In Sigley v Evor (2011) 44 Fam LR 439 at [132], the Full Court, quoting Brown J in Mazorski & Albright (2007) 37 Fam LR 518, confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child”.
Protection from harm
In Stott and Holgar [2017] FamCAFC 152 at [38], the Full Court confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case to decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm.
It is now well established that “unacceptable risk” does not arise solely in respect of allegations of physical or sexual abuse. The “test” of “unacceptable risk” also requires assessments of risk of future physical and emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 78.
Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[149].
While each factor establishing risk need not be proved to the standard of s 140(2) of the Evidence Act 1995 (Cth) (“the Evidence Act”), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact; “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”: see the Hon Richard Chisholm ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010) 15.
Having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko & Blinko [2015] FamCAFC 146 (“Blinko”) at [83] referring to Russell v Close [1993] FamCA 62 (“Russell v Close”).
Additional considerations
Section 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard. To assist analysis, those considerations can conveniently be grouped under the following headings:
Issues relating to the children – their views, level of maturity, culture and relationships:
·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
·Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
Issues of family violence:
·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
Effect of change:
·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
Practical difficulty of implementation:
·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Avoiding further proceedings:
·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Other relevant matters:
·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
CONSIDERATION
Central to the consideration of this matter is whether the father has engaged in acts of physical violence against the mother, as alleged by the mother. Also of relevance is the extent to which the parties have acted responsibly and in an appropriately child-focused manner, as opposed to a self-focused manner. In that respect, I will set out the evidence which has led me to conclude that the mother has failed to act responsibly in not facilitating the child’s relationship with the father and, conversely, the father has failed to act responsibly in not diligently prosecuting his case before the Court. Finally, of significant relevance in these proceedings are the wishes of the child, who is now almost 10 years old and has not seen his father since he was four years old.
My focus upon relevant s 60CC considerations will therefore address those issues before considering the other factors set out in s 60CC.
Issues of family violence:
Allegations by the mother
The mother contends that in February 2011, during the course of an argument, the father punched her in the “pelvic area” and further contends that, the following morning, she “woke to excruciating pain in [her] pelvic area and found that [she] had begun bleeding severely”. The mother contends that, as the father had already left for work, she called an ambulance to take her to the hospital. The ICL’s tender bundle includes an emergency department clinical record from Suburb B Hospital noting the mother’s admission to hospital but does not include the mother reporting physical abuse at the hands of the father. The clinical notes of the mother’s admission to Suburb B Hospital on 23 February 2011 record that the mother “presented with abdominal pain because she started her menstrual period today and her period was heavier than usual.”[1]
[1] Transcript 8 October 2021, p.396 lines 39–44.
There is, of course, no need for a party asserting that they have been the subject of family violence to provide corroborative evidence. However, the mother’s evidence in this respect needs to be assessed in the context of her lack of credibility in respect to other aspects of her evidence relating to her allegations that the father has committed serious acts of physical violence against her, to which I will subsequently refer.
The mother contends that, during the course of the parties’ relationship, most sexual interactions between them were “forceful” and that, on at least one occasion, she required medical attention in respect to injuries she sustained during intercourse. The mother attaches, as annexure A to her affidavit, a medical certificate from Dr Q dated 4 October 2013, which reads:
[Ms Bashar], age 30 yrs, saw me 3/7/12 with infected [cyst] and tenderness in the vagina around the scar from her 2⁰ tear. On 21/11/12 she represented with ongoing vulval irritation and I suggested dermatological review.-letter attached. [Ms Bashar] admitted today that this was from frequent intercourse against her will at the time. She did not state the reason then because of embarrassment and a wish at the time to keep it private. She is a modest lady in dress and manner.
The father denies these allegations by the mother, as well as the mother’s other allegations that he has engaged in acts of physical violence towards her.
The evidence of the mother that the father caused a tear in her vaginal region as result of engaging in forced sexual intercourse was not supported by evidence. Clinical notes produced by Hospital R record that, during childbirth, the mother sustained a “second-degree tear” and a “labial graze tear.” I respectfully agree with the submission of counsel for the ICL that there is no evidence that such an injury occurred as a result of forceful intercourse engaged in by the father, rather, the most likely cause was childbirth.[2]
[2] Transcript 8 October 2021, p.396 lines 34–37.
At paragraph 17 of her affidavit, the mother contends that, during the course of the parties’ relationship, the father would often push her, causing her to fall to the ground, and punch her in her pelvic area. The mother contends that, “on several occasions, it caused severe bleeding” resulting in hospitalisation, however no evidence has been presented in respect to those alleged hospitalisations. The mother also contends that she suffered two miscarriages as result of the father’s violence towards her. The mother’s allegation in that paragraph is also related to allegation she makes in paragraphs 41 through to 44 of her affidavit.
In relation to the mother’s allegations, the first paragraph of a report from consultant obstetrician and gynaecologist Dr S, included in the ICL’s tender bundle, states as follows:
Thank you for referring [Ms Bashar], a pleasant 28-year-old nullipara with dysmenorrhea and primary infertility. [Ms Bashar’s] [sic] periods are regular with a cycle of 8/28 and she experiences no intermenstrual or post coital bleeding. She describes a very heavy flow with clotting for at least 4-5 days. [Ms Bashar] experiences significant dysmenorrhea on day 1 and requires the use of non-steroidal agents for this. She usually ends up staying at home and uses a heat pack during the day as well. [Ms Bashar] has always had severe dysmenorrhea since the onset of menses and as a teenager also suffered from nausea and vomiting at this time. She had a particularly painful period recently and presented to [Suburb B] Hospital for analgesia.
(Bold emphasis added)
Clinical notes produced by Suburb B Hospital record the mother presenting, in June 2011, in respect to an ectopic pregnancy, which was acknowledged in the proceedings to be a pregnancy that develops outside the uterus, in the fallopian tubes, and cannot survive. The clinical notes record that the mother was discharged into the care of the father. In response to questions from the ICL, the mother acknowledged that the ectopic pregnancy could not be attributed to conduct on the part of the father.[3] Despite the clinical notes of Suburb B Hospital being subpoenaed, there are no other indications of the mother presenting in respect to bleeding aside from in relation to the ectopic pregnancy in June 2011.
[3] Transcript 29 September 2021, p.241 lines 12–17.
At paragraph 18 through to 20 of her affidavit, the mother alleges that the father was controlling of her movements and clothes, and imposed “cultural oppression on her”. The mother’s evidence in that respect, however, is very general, and there are no particulars as to what the nature of that alleged oppression was. The mother’s evidence in that respect needs to be seen in the context where the evidence establishes that both parties’ families had very similar religious views, as reflected in the fact that the mother’s father and the father’s mother both gave lessons at the same religious school that the parties attended as children.
The mother contends at paragraph 27 of her affidavit that in July 2012, the paternal grandmother, without the mother’s consent, put some honey on her finger and then placed the finger in the child’s mouth to enable the child to taste the honey. This, the mother contends, constituted a risk of harm to the child, specifically, the potential risk of botulism and paralysis of the lower limbs caused by honey in infants under one year. The mother contends, at paragraph 28, that the child suffered an adverse reaction to the honey and that, despite seeking assistance from the father, he did not return from work until late and, after a long delay waiting at the hospital, the father insisted that the parties return home without the child being treated.
In response to questions from counsel for the mother, the father stated that he in fact rushed home from work and acknowledges that he attended hospital with the mother and the child. The father contends that the child was examined by a nurse on duty, who advised the parties that the child had suffered no adverse reaction from the honey and, after receiving that advice, they returned home.[4]
[4] Transcript 27 September 2021, p.65 lines 39–44.
Hospital notes produced indicate an attendance on 16 July 2012 and record that the child was settled and breastfeeding, with no record made of any concerns regarding the child’s health. The mother’s evidence that the father forced her to leave the hospital without the child being medically examined is inconsistent with those notes and, in those circumstances, I prefer the evidence of the father. This is another example where the mother has, in my view, exaggerated her evidence with a view to casting the father in a bad light.
At paragraph 29 of her affidavit, the mother contends that the father threatened that if she ever left him, he would ensure that she “never saw her son again.” The father denied this evidence and I am unable to make any determination as to whether any such statement was made.
In paragraph 30 of her affidavit, the mother makes very general allegations of the father being physically abusive towards her. In the absence of more precise particularity, the evidence does not satisfy me that such physical abuse occurred. Again, the mother’s evidence needs to be considered in the context of what I have found to be exaggerated and false accounts of injuries she alleges she has received at the hands of the father.
In that context, at paragraph 31 of her affidavit, the mother contends that the father would often restrain her by holding her down while shouting at her and, on one occasion, “he held [her] arm and twisted it with a firm agonising grip.” This, the mother contends, caused the arm to become painfully bruised and swollen, consequently aggravating her existing carpal tunnel condition. The mother refers to annexure C of her affidavit, which is a report from a physiotherapist, to corroborate her assertions. That report, dated 12 December 2013, records the mother attending for five sessions of treatment between 17 September 2012 and 10 October 2012 in respect to “the chronic use of her hand for holding her newborn [which] has put strain into her left wrist and thumb joints. Examinations revealed strained [sic] of radio-carpal joint and de quervain [sic] syndrome.”
Clinical notes provided in respect of physiotherapy received by the mother, as set out in the ICL’s tender bundle, included a report of a child and family health visit made 25 September 2012 at 2.54 pm, which records that the “[mother] has seen physio for carpal tunnel – has had twisted ankle too – dad supportive – not a lot of other support available”.
It is to be noted that this record coincides with the reported dates of the mother attending for physiotherapy sessions with the physiotherapist as set out in annexure C to her affidavit.
In circumstances where the mother reported the father as being supportive and the physiotherapist’s report provides an alternative explanation for the mother receiving injury to her left wrist, hand and thumb, I do not accept the mother’s evidence that it was the father who caused those injuries. There is no indication that the surgery was necessitated by any conduct of the father.
At paragraph 33 of her affidavit, the mother contends that the father would “attack [her] physically grabbing [her] by the throat [and] tightly choking [her].” This is a very serious allegation which, if accepted, would amount to the father committing a serious physical assault. It is significant, however, that, in the context of including a number of highly disparaging comments concerning the conduct of the father in her affidavit, the mother made no reference to losing full or partial consciousness. In that respect, contained in the tender bundle of the ICL is a summary of an intake assessment conducted by the Contact Centre D in respect to the mother on 14 August 2015. That report notes the mother’s allegations that the father “would push her or throw her across the room he would grab her around the throat. The [mother] describes that whilst he had her by the throat she would at times lose consciousness and pass out.” It can reasonably be expected, in the context where the mother is including a variety of allegations and imputations against the father in her affidavit, that if such conduct had occurred she would have included that in her affidavit. The failure to include that reference is a factor that I have considered in declining to accept the mother’s evidence that the father has attempted to strangle her.
At paragraph 34 of her affidavit the mother contends that, in February 2013, the father attended her house with a view to removing personal items and, after retrieving certain items, “swung [a] bag full of razors at me” while she was carrying the child. The mother contends that, while the bag did not strike her, it stuck the father’s hand, causing injury to his hand with consequent heavy bleeding.
Similarly, the incident is also noted in the intake assessment of the Contact Centre D dated 14 August 2015 to which I have referred. The incident as reported in those notes was the mother stating that the father “tried to hit her with a cut throat razor but instead of hitting her … the [father] got cut instead.” That account is, again, a grossly exaggerated account of what, at its highest, occurred, being the father suffering a cut from a bag which contained disposable razors. I am satisfied that the mother has again embellished her evidence to deliberately cast the father in a poor light.
At paragraph 37 of her affidavit, the mother provides an account of leaving the former matrimonial home as result of abusive conduct on the part of the father, including pushing her to the floor whilst she was carrying the child. The father, however, presents a different account of events, stating that he was locked out of the house by the mother so he went and stayed at his parents’ residence for the night and when he came back the following day, the mother was leaving the house with the son. It is not possible to make a determination in respect to the parties’ competing allegations regarding this incident.
To corroborate her account of the father repeatedly pushing her to the floor, at paragraph 38 of her affidavit, the mother attaches, at annexure E, hospital discharge papers in respect to surgery she underwent in September 2016. That document is a discharge referral containing an admission summary stating that the mother attended Suburb B Hospital on 27 September 2016 “for excision of sacral exostosis” and was admitted under the care of Dr T. A report from Dr T dated 7 September 2015 is contained in annexure D to the mother’s affidavit. Relevantly, that report states:
Thank you for referring this lady for review of a problem with her pelvis. She has had increasing pain over the sacrum, particularly over the last six months, As a result of numerous injuries to the area, due to direct trauma by an abusive husband, she has developed increasing symptoms and difficulty with sitting. She has midline sacral pain with a prominence slightly to the right of the midline. An ultrasound and CT has shown an exostosis of the sacrum. This was likely longstanding, but with recent trauma the lump has increased in size and become symptomatic.
It is noted that Dr T was of the view that the mother’s condition was “likely long-standing”, but had been exacerbated by recent trauma. As at 7 September 2015, the mother had not lived with the father for a period of approximately three years.[5]
[5] Transcript 29 September 2021, p.255 lines 2–3.
Clearly, the contents of that report are based on the history provided by the mother. The fact that such history, so provided, is included in the doctor’s report does not add veracity to the mother’s evidence. The report is contrary to, rather than consistent with, the narrative provided by the mother in so far as it describes the mother’s condition as being due to “recent trauma”, given that the parties had been living separately from each other for a number of years at the time.
At paragraphs 39 and 40 of her affidavit, the mother makes allegations that the father has engaged in reckless driving, including driving without the child being appropriately restrained. In responding to a question from counsel for the ICL, the mother clarified her evidence in respect to the child being unrestrained, stating that “any time we were in the car, if my son cried too much, he would tell me [to] jump in the back and pick him up. So he would make me carry him in the backseat out of his capsule.” That version differs substantially from the mother’s account of the father driving the car in circumstances where the child was not restrained. This is another example of the mother endeavouring to cast the character of the father in poor light.
In addition to alleged physical violence, the mother contends that she was the subject of emotional abuse by the father which, by way of summary, included the following allegations:
·The father would control what the mother wore;
·She required the father’s permission in respect to engaging in outings and she was obliged to constantly inform the father of her whereabouts;
·During the course of arguments, the father would shout, ridicule and belittle the mother;
·The father required her to speak to his mother on a daily basis
·The father was intolerant of the baby crying and, according to the mother, said on one occasion “if you don’t shut him up, I’ll shut him up. Like I shut you up.”
The mother contends that, following the parties’ separation, the father would regularly say to her words to the effect that he would “find a way to make sure [she] never saw [her] son again.”
The mother further contends that the father stated to the mother that she would end up like her own mother, who was recently deceased, claiming that she would similarly suffer “dementia and be worthless” and also “end up like [her] mother with an early death.” To corroborate that contention, the mother refers to text messages which she states she received from the father’s sister in April 2016, which is set out in paragraph 57 of her affidavit as follows:
“You’re a shattered broken rejected individual who has evil running through her veins as result of never being loved!”
“You ure the true epitome of a hypocrite”
“We are better than you at all levels!”
“Your mother has failed in the daughter she raised! She should have called you fitnah” (fitnah means a terrible problem)
“May Allah never forgive her for instilling in use such hatred envy jealousy and lack of respect! And may Allah never forgive your father for the coward he is lying just so another family can be burdened with you!
“[Mr Mudin] decided to free himself (from you) of the burden Allah tested him with”
“You too will fail as a mother because [X] will grow to realise you’re a narcissistic control freak”
“You need to understand that subhanAllah you were given this child so you are not alone for most of your life! Unfortunately, he doesn’t have a choice but to stay until his [sic] old enough to throw you in a nursing home!”
“You won’t remarry because of who you are”
“You won’t have any more kids cos who can love such a Zionist fungified rat”
“You won't have inner peace because you are a bitter person who has a black heart”
“You lie awake thinking of your great loss and planning how u can win him back?”
“You have fallen because of your self pride!”
“The only thing your clinging to now is the hope of [Mr Mudin’s] financial support!"
“We know your attempt to have the best of both worlds is a decoy for your promiscuous ways cos you really don't know who [Mr Mudin] is??!”
“We should follow that considering your history of lies otherwise we don't want him carrying the prestigious [Mudin] family name!”
“I’ve attached the number of an excellent psychiatric practice to assist you before your spiral into further psychosis despite all the [medicine] we know you're on”
“Poor child shouldn't be forced to live with mummy and all those personalities fitnah/failure/fungus!”
“I do suggest u go dig a hole and bury yourself just like a dog would with his shit cos who can argue that's what your worth is!”
(As per the original)
In response to questions from counsel for the mother, the father denied knowing who sent the text messages to the mother. Further, the father stated that he did not make enquiries of his sister as to whether she sent such messages. I respectfully agree with the submission of the ICL that the father had the ability to make such an enquiry of his sister and, if they had not been sent by his sister, to call evidence from his sister. In circumstances where evidence is to be assessed from the perspective of the party who had the capacity to call that evidence, the father’s failure to call such evidence from his sister has led me to conclude that his sister did in fact send the text messages in the above terms to the mother. It is disappointing that the father did not acknowledge that the text messages were sent by his sister nor express his objection to material of that nature being sent to the mother. His failure to do so leads me to conclude that there is likely to be some substance in the mother’s allegations that the father made disparaging comments to her and also tolerated other family members similarly making such disparaging comments.
In that respect, at paragraph 22 of her affidavit, the mother contends that the father permitted his mother and other members of his family to criticise, ridicule and demean the mother and the manner in which she was parenting the child. Similar evidence is provided at paragraph 24 of the mother’s affidavit. The father denied this occurred, however, the disingenuous response the father provided to the mother’s evidence of receiving text messages from his sister, to which I have earlier referred, has led me to prefer the evidence of the mother in this respect. It is to be noted, however, that the mother’s evidence lacks specificity as to the nature of the remarks which she contends were made to her as outlined in those paragraphs. Again, it is evidence of the ongoing tension and conflict between the parties and their respective families.
At paragraphs 45 and 46 of her affidavit, the mother contends that, in September 2013, the father attended her sister’s house where the mother was staying with the child. The mother contends that the father “showed aggression” towards her brother-in-law. The mother has not provided particulars of the nature of that aggression. The mother contends that, as result of that event, the police applied for an Apprehended Domestic Violence Order (“ADVO”) on her behalf. The police records do not appear to contain details of that incident. Accordingly I give little weight to that evidence.
In addition to alleging actual physical violence and the use of offensive language, the mother contends that, during the period of the parties’ relationship, the father “would regularly threaten and intimidate [the mother] not to report anything that he did to [her], to anyone and that [she would] regret it if [she] did.” The mother has not, however, provided details of any such conversations, including when and where they occurred, the circumstances in which they occurred or the actual words used by the father. Accordingly, I give little weight to that evidence.
The mother further contends that she has been verbally abused by members of the paternal family, including the paternal grandfather, the father’s brother, the father’s brother-in-law and the father’s sister. The abuse, the mother contends, occurred on one occasion when the father’s brother, brother-in-law and father came to the home where she was staying and, according to the mother, “kept insisting they are going to take my son.” The mother contends that “they were shouting abuse, profanities and bullying [her]”. The mother further contends that the father’s brother threatened to break her legs and the father’s brother-in-law threatened to break her neck. The mother contends that it was necessary for her father and her brother-in-law to “shield” her. The mother has filed an affidavit affirmed by her father but that affidavit does not contain a reference to any such event. Further, the mother has not called evidence from her brother-in-law. Accordingly, I give little weight to the mother’s allegations in that respect.
At paragraph 53 of her affidavit, the mother contends that the father and members of his family “have threatened to kidnap” the child, “flee to [Country U]” and never allow her “to see him again”. The threats included, according to the mother, the assertion that such conduct could be facilitated because the paternal grandfather worked for Airline V and “it was easy for him to do this with his contacts”. The mother has not however, provided particulars of the circumstances in which any such threats were made, nor has she provided evidence of the actual words used. Again, I give that evidence little weight and note that it was accepted that the child’s paternal grandfather no longer works at Airline V. In giving little weight to the mother’s evidence in respect to this matter, I note that, in these proceedings, the mother has not sought that the child be placed on the airport watch list maintained by the Australian Federal Police.
The one occasion where a timeframe is provided in respect to such threats is paragraph 54 of the mother’s affidavit, where she states that “in April 2013” the father came to her sister’s home where the mother was staying with the child. The mother attests that the father was accompanied by his brother “and a friend of large stature”. The mother contends that “they forcefully tried to enter the home and kept demanding to give them my son.” The mother contends that this occurred in circumstances where there was no prior arrangement for the father to attend her sister’s home to see the child. The mother’s description of what she contends occurred as follows:
The 3 males approached the house angrily, shouting abuse, yelling, and screaming “give me my son. Where is he”. The garage door was open as we asked them to leave and attempted to close it. The three of them held it up not allowing it to close. We became very scared. The children became hysterical and all began crying. They continued to stand outside for 3 honours continuing to shout threats and profanities at us. I tried to explain to [Mr Mudin] that he could not see my son outside of agreed visit time.
(As per the original)
That event, as alleged by the mother, does not appear to have been reported to the police. In light of the false and exaggerated evidence that the mother has given in respect to alleged acts of physical violence by the father, I give the mother’s evidence of the alleged incident little weight.
The mother contends that on 13 January 2014, when she was shopping with the child, she was approached by the father. The mother’s account of the incident is set out in paragraph 55 of her affidavit as follows:
On 13 January 2014, at approximately 5pm, I went to [Suburb W] Plaza with my son. From the time I entered the supermarket, I noticed a middle-aged man following me right through the store. Halfway through my shopping, I heard him on a phone call say ‘yep I’m pretty sure its her, yep she’s here’. I finally made my way to the registers and he too followed me there and stood at the same register for approximately 10-15 mins after his phone call. I was becoming quite scared and anxious at this stage, as I feared [Mr Mudin] had him following me to hurt me and take my son. My son was sitting in the toddler section of the trolley, with the buckle on. I moved the trolley to the end of the register, and as I was paying, [Mr Mudin] suddenly appeared out of nowhere and came right up to the trolley where my son was sitting and proceeded to unbuckle him and attempt to take him out of the trolley. I turned around after finishing my payment to realise this and became very frightened and scared, as I realised [Mr Mudin] was trying to kidnap my son. My son was also very afraid and pulling away from [Mr Mudin]. I quickly retrieved the trolley and pulled it away and told [Mr Mudin] to go away and leave us alone. As I pulled the trolley and walked away, he proceeded to follow me. I spotted a security guard and quickly went straight to him and asked him to help me contact the police. When [Mr Mudin] saw me talking to the security guard, he stopped and turned to walk the other direction. The security guard walked me to my car where I contacted police. He waited with me until my brother-in-law arrived, and then I went to the police station to report the incident.
(As per the original)
The father’s account of the incident is set out at paragraph 36(b) of his affidavit filed 9 September 2021 as follows:
During a stop at a local supermarket for my lunch break in or around October 2013, I was surprised to see my son in a trolley while [Ms Bashar] was shopping. It had been almost two months since I saw him last and was thrilled to see me, he recognised me. He smiled at me when I called his name and I affectionately played with his hair and hugged him before walking away. The mother noticed and yelled at me as I was walking out of the store and paid at the registers to stay away from him. Later that afternoon, she called NSW Police claiming I was aggressive and tried to kidnap my son. She applied for a second AVO which was subsequently denied in court. I provided video footage from [the supermarket] of me hugging my son and walking away with zero interaction with the mother.
The police record of the incident produced by the NSW Commissioner of Police is included in the ICL’s tender bundle. The police notes record an incident occurring on 13 January 2014 at the supermarket, the summary of which is as follows:
About 5.30pm 13 January 2014, the victim has attended [the supermarket] with her son, to do some shopping. The victim has noticed a male following her. The male can be described as 170cm-180cm tall, large build, fair skin, light brown hair, red face wearing casual clothing. The victim has entered the store and went to the Banana section in the store. The victim has then seen a friend and walked to the front of the store and had a conversation. The victim states that the male was in the banana section when she left. The victim has then went to the fruit section, where she states the male has followed her selecting the same items she has. The victim has then went to each aisle, where she states the male has followed her. After entering a number of aisle's the victim states she heard the male say 'I 'm pretty sure it's her, yup. ' The victim went to one of the registers located near the end of the store, not near the express registers. The victim states the male has stood behind her in line. The victim has placed all items onto the conveyor belt. She has then moved her trolley to the front of the register to load the grocery bags into the trolley .As she went to pay for the items, the POI has walked up to the trolley where their son was sitting in the baby seat. The POI has talked to their son. He has then attempted to pick up their son. The victim has told the POI to leave their son alone and that he could not take him. The POI did not speak to the victim, only with their son. The victim has paid for the items then went to leave the store. The victim states as she went to leave the store, the POI has followed her. Due to this the victim has then walked straight to the security guard. The victim states the POI has then walked in a different direction. The security guard has walked the victim to her vehicle to await Police. The victim has attended [Suburb W] Police Station a short time later as she no longer wanted to wait for Police at the location. Police spoke with the victim and obtained a witness statement. In her statement, the victim has stated she has experienced previous history of violence, intimidation, bullying threats and harassment during her period of marriage with the POI, however he never reported anything to Police due to fear of repercussions. In her statement, the victim also states that since the incident on the 31 August 2013, she has only seen the POI near her sister's house and at court until this current incident, and there have been no instances of violence. The victim disclosed in her statement that she is fearful that the POI is going to kidnap her son and take him to [Country U]. The victim stated to Police that she will be contacting her solicitor again in relation to obtaining full custody of her child as she does not want the POI to contact her or her son.
As previously noted, the family consultant observed that the child “seems mature for his age”. A similar observation was made by the child’s stepfather in his interview with the family consultant.
I have also set out details of the conversation the family consultant had with the child indicating that he is content with his current circumstances including, most relevantly, his family situation, his education and his extracurricular activities.
The child clearly has a close relationship with his mother, stepfather and brother. It can be reasonably assumed that he also has a close relationship with members of the maternal family.
Regrettably, the child has no relationship with his father, members of his paternal family, his father’s current partner or his two sisters of that relationship.
It is significant that the family consultant described the child as presenting “as an endearing much loved child” in her report. He seems to be particularly socially confident, intelligent and articulate for his age. He spoke positively about his relationships with his mother and stepfather.
In summary, the child appears to be progressing well at school, feels secure and is well-adjusted. This is particularly relevant to the issue of change that I will consider in greater detail below.
In this case, both parents share a common faith and have similar cultural backgrounds. As previously noted, the parties have attended the same religious school and the child’s grandfather and grandmother have both taught at that school. In those circumstances, there did not appear to be any significant difference in religious or cultural emphasis within either of the paternal or maternal families. That is not to say, however, that it would not benefit the child to retain a connection to his paternal family. Clearly, issues of risk aside, it would.
Parenting capacity
The father has, during the course of these proceedings and in his affidavit filed on 9 September 2021, alleged that the mother suffers from mental illness. In that respect, for instance, at paragraph 15 of his affidavit, the father contends that the mother “had monthly outbursts”, which she admitted were “not normal” and engaged in conduct such as “yelling and using belittling remarks and criticism” directed towards the father.
The father further alleges that in mid-October 2012, the mother’s “behaviour became extremely disturbing” and she refused to let the father feed the child as result of what the father contended was the mother’s view that the father did not respect her. At about this time, the father moved out of the marital bedroom and commenced sleeping on the lounge.
The mother acknowledges that, in the period subsequent to separation, she attended counselling for a period of 12 months which she attests to being necessary as result of being exposed to the father’s family violence during the course of the parties’ relationship. Annexure B to the mother’s affidavit is a report from Ms AA, a counsellor, dated 18 February 2014 which was prepared in support of the mother’s application for inclusion in “[a specialised program].” The report read:
In the course of her marriage, [the mother] has experienced all forms of serious physical and emotional violence and abuse, including being attacked while holding her infant son. Fortunately, [the mother] has been able to extricate her son and herself from this environment, and has sought counselling […] plus casework and court support […]. She also has support from family in the area. Further, she is currently investigating options so that she can more adequately support the family in the future.
Since leaving the marriage, [the mother] has been continually harassed by her ex-husband, who has had her followed; tried to take their son (who he has threatened publicly to take out of the country); and used others to carry on intimidation. He has also changed his source of income with the result that he does not pay child support. [The mother’s] two applications for an AVO have been unsuccessful, leaving her open to further abuse as she cannot afford to pursue the matter privately.
[The mother’s] inclusion in the [specialised program] will assist her to achieve independence, establish her family and hopefully improve her safety. I recommend her to you as a very worthy recipient.
There is no evidence as to the qualifications held by Ms AA and I give little weight to the content of this letter, save noting that there is a live issue in these proceedings regarding the state of the mother’s mental health and the extent to which it may have been impacted by conduct on the part of the father.
On the other hand, there is a degree of disingenuousness on the part of the father in circumstances where he had the opportunity of agreeing to meet the cost of the mother’s mental health assessment for the purpose of these proceedings, yet he declined to do so.
As a result, aside from the father’s contentions, there is no evidence before the Court that indicates that the mother’s parenting capacity has been adversely impacted by mental health issues, or that it would be likely to be adversely affected by potential orders made in these proceedings.
Nevertheless, behavioural issues are relevant and, in that context, the family consultant opined that there is a potential risk to the child “if his mother were unable to regulate her emotions appropriately.” The family consultant explained at paragraph 112 of her report that:
This is because parents who lack ego control and have anger management problems model fighting and arguing rather than compromising or respectfully reasoning as a means of settling disputes. Such parents also tend to be inconsistent in their limit setting or rules, and sometimes experience difficulty controlling their temper with their children who unfortunately tend to be swept up in the parent’s anger. In highly conflictual or litigious parents, such anger is often pitted against the child’s other loved parent.
The mother, throughout these proceedings, has indicated that she is uncompromising. This is demonstrated most relevantly by the mother, who is clearly an intelligent woman, continuing to press allegations that the father has engaged in acts of serious family violence causing injury, even in circumstances where the objective evidence establishes that the injuries she complained of were not due to any conduct on the part of the father. However, giving the mother the benefit of the doubt, it is not possible to find to the standard required by s 140(2) of the Evidence Act, that she has deliberately lied to the Court. It does appear to be the case, however, that the mother feels considerable anger towards the father and, as has been made plain throughout these proceedings, does not want the father to have any part in the child’s life.
Justice Rees in Picton and Crowley [2017] FamCA 811 at [477] observed that:
Perhaps the greatest responsibility of parenthood is the responsibility to model to the child respectful behaviour towards the other parent and give the child permission to love each parent.
It is regrettable that the mother is completely incapable of modelling such respectful behaviour and her failure in that respect is a significant flaw in her parenting capacity. As noted in the oral evidence provided by the family consultant, the mother’s conduct in that respect has the potential to cause significant resentment on the part of the child towards his parents in the child’s later years.
Nevertheless, in terms of considering those matters impacting upon the child, it is, as I have noted, relevant that the child presents as being much loved, well-adjusted and progressing well at school and in his personal pursuits. In that context, the mother must be regarded as a capable parent.
There is effectively no evidence before the Court regarding the father’s parenting capacity, save to the extent that the father gives evidence of assisting to care for the child prior to the parties’ separation. There is no reason to assume that the father and his current partner are not appropriately caring for their two daughters, or that they lack the capacity to provide appropriate care and support for the subject child if orders are made for the child to spend time with the father. Indeed, the father’s partner, who gave evidence in these proceedings, was an impressive witness. Her evidence was provided in a clear and direct manner. She appeared to be sensible and appropriately empathetic to the circumstances confronting the child and also the child’s mother. I am confident that the child would benefit from spending time with not only his father, but also his stepmother and his two sisters from that relationship.
Effect of change
The child has spent a limited amount of time with the father between the date of the parties’ separation and the commencement of these proceedings by the father. Aside from several brief visits in circumstances of supervised care, which occurred up until the end of 2015, the child has not spent time with his father.
The orders initially proposed by the father for there to be a change in the child’s residence from that of the mother to the father and for there to be a moratorium of several months on the child contacting the mother immediately post separation would have had an enormous effect on the child. This is particularly so in circumstances where the child is of the view that the father is someone to be afraid of.
Fortunately and sensibly, perhaps having regard to the more reasonable position proposed by the child’s stepmother, the father significantly moderated his position in the final orders he now seeks.
Nevertheless, it would be a significant change for the child to commence spending any time with his father. The child has indicated his unwillingness to do so and indeed has stated that he would “run away” if such orders were made.
In those circumstances, clearly precautions are required to prevent an outcome where the child, who is currently happy and well-adjusted, found himself placed in a stressful, if not emotionally harmful situation as a result of the fact that, through no fault of his own, he has been caught in the middle of his parents intractable parenting dispute. Clearly, great care is required in preventing that from occurring.
Practical difficulty
A major practical difficulty in orders providing for the child to spend time with the father would be if those orders provided for the time to occur in the context of supervision. For reasons which I have set out, the mother has, in the past, not acted in good faith in failing to facilitate the child spending time with the father in supervised environments.
In respect to supervision of the father’s time with the child, I note that I have not accepted the mother’s evidence that the father has perpetrated acts of physical violence against her. Further, while I have found that both parties have, in the past, been disrespectful to each other, have probably exchanged hurtful and belittling comments and have each engaged in what could be called controlling and coercive behaviour towards each other, there is no suggestion that the father has engaged in that form of conduct in respect to the child. In those circumstances, I am not satisfied that there is a need for supervision of the father’s time with the child.
While the mother has refrained from publishing both her address and details of the child’s school, it is generally accepted that the parties reside in relatively close proximity to their other family members and in relatively close proximity to where the parties went to school. Accordingly, aside from the issue of supervision, neither party has suggested that there would be practical difficulties in the child spending time with the father.
Avoiding further proceedings
To his credit, the father indicated that he would accept the outcome of these proceedings and that it would not be in the child’s best interests for there to be further litigation between the parties.
In circumstances where the mother has, however, in the past, failed to comply with orders of the Court, I am satisfied that it is probable that the mother will fail to comply or, more accurately, comply in good faith, with any orders made requiring her to facilitate the child spending time with the father.
However, equally, it would be both unjust to the father and contrary to the right of the child to spend time with both parents, to refrain from making an order that the child spend time with the father merely because of doubt concerning the mother’s future compliance with such orders.
MEANINGFUL RELATIONSHIP
Section 60CC(2)(a) of the Act requires the Court to consider the “the benefit of the child having a meaningful relationship” with each of the parties. On the other hand, under s 60CC(2)(b), I must consider the issue of the risk associated with the child possibly being subject to physical or psychological harm, neglect or abuse in the care of either of the parties. In McCall & Clark (2009) FLC 93-405 (“McCall”), the Full Court noted at [122] that, absent issues such as an unacceptable risk of harm, “in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents.”
The Court’s enquiry should primarily be “prospective”, that is, considering the prospect of the child having a meaningful relationship with the parent in the future. However, at the same time, the Full Court in McCall recognised the reality that evidence concerning the current nature of a child’s relationship with a parent may have a significant bearing on the Court’s assessment as to the prospect of the child having a meaningful relationship with that parent into the future. This is relevant in the context of these proceedings where the child currently has no relationship with his father.
The father contends that it is important for the child to have a meaningful relationship with him, stating at paragraph 73 of his affidavit that:
I believe that by being in [the child’s] life, I will be provided with opportunities to instil and encourage important life skills. I will be a role model for him, ethical wisdom, emotional intelligence, generosity and kindness, respect, and acceptance of life's inevitable imperfections and challenges.
I respectfully agree with the opinion of the family consultant at paragraph 122 of her report that, in the absence of finding that the father has engaged in the acts of physical violence as alleged by the mother, it would be a tragedy for the child to “be denied the opportunity to forge a meaningful relationship with [his father], his stepmother and half siblings, his right to his paternal identity and history, and the possibility of lifelong relationships with extended paternal family members.”
During the course of the hearing, the father presented as well-groomed, articulate and reasonable. That view was shared by the family consultant, who had interviewed the father and expressed the view that, in the event of the Court finding that the father had not perpetrated acts of family violence against the mother as she alleges, it would be “an abomination and a terrible tragedy” if the child is deprived of “his right to a relationship with his father and his paternal members.”[12] I agree with that opinion.
[12] Transcript 8 October 2021, p.364 lines 8–10.
Counsel for the mother quoted from the often cited decision of Nygh J in Cotton & Cotton (1983) FLC 91-330 (“Cotton”) at 78,252, where His Honour said:
While it was both generally desirable for a child to maintain a meaningful relationship with both parents, there must be a possibility first of the existence of a meaningful relationship.
However, that quote needs to be read in context. The entirety of the relevant quote in Cotton was that the desirability of a child having a meaningful relationship with a parent:
…only operates when there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contacts sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist.
For reasons which I have set out, I am satisfied that it is in the child’s interest to have a meaningful relationship with his father. I am further satisfied that it is possible for that to occur if the child’s relationship with the father is encouraged by his mother.
The challenge in these proceedings is the finding that, based on her past conduct, the mother will not provide such encouragement. Indeed, it can reasonably be inferred that she will take steps to prevent the establishment of such a meaningful relationship. The issue of risk to the child being caught in the middle of that dynamic therefore becomes relevant.
THE ISSUE OF RISK
The father contends that the mother’s current partner has a “history of drug related and criminal activity, with convictions.” As a result, the father contends that the child is at risk of psychological and physical harm in the mother’s care.
Police records that have been produced in these proceedings note the concerns of police intelligence officers that the child’s stepfather may have been involved in an outlawed motorcycle gang, with a suspicion that the child’s stepfather may have had associations with persons who have committed a murder.
The evidence, however, raises no further than a suspicion on the part of police intelligence. There is no evidence that the child’s stepfather has engaged in any criminal activity in recent years, nor is there evidence of the child’s stepfather potentially being the target of reprisal from other individuals.
There is no evidence that the child’s stepfather has acted in any way inappropriately towards the child. Indeed, the child expresses love, affection and respect for his stepfather. Further, there is no evidence that the child’s stepfather has been involved in the broader interfamilial conflict to which I have earlier referred.
Comparatively, the mother contends that the father’s brother is involved in criminal activity and has associations with an extremist religious organisation. However, the evidence presented by the mother does not establish that this is the case.
The evidence presented in these proceedings by the mother has not satisfied me that the father presents either a physical risk to the child’s safety or an emotional or psychological risk to the child.
There is, however, a risk to the child in spending time with the father insofar as the child has been conditioned to believe that the father is a dangerous man. I am satisfied that the mother has, by her statements and actions, been responsible for the child having those fears. In that respect, I note that the family consultant states at paragraph 115 of her report that:
…Some of [the child’s] comments during the Family Report interview seemed illogical and are ultimately inordinately concerning. They depict a child who has an entirely negative view of his father based on what are likely false memories.
Further, at paragraph 116 of her report, the family consultant states:
Should the Court find that [the mother] has fabricated or exaggerated her allegations of family violence, it is perhaps more likely that she has engaged in overtly polarising or marginalising behaviour. Either way, this is extremely concerning and a most unfortunate scenario because [the child’s] exposure to adult matters and his mother’s emotive language and universally negative evaluation of [the father] has seemingly eroded any semblance of an attachment or relationship [X] previously had with his father.
As previously noted, I have found that the mother has both fabricated and exaggerated her allegations of family violence which she alleges has been committed by the father. In that respect I note, in giving oral evidence in these proceedings, the family consultant indicated that she suspected that the child “has possibly been vulnerable to alienating behaviour” on the part of the mother. Having considered the evidence in these proceedings, I am satisfied it is likely that has occurred and that the child’s views of the father and spending time with the father have been influenced by that conduct on the part of the mother.
The mother’s conduct in that respect presents a risk to the child. The family consultant opined at paragraph 116 of her report that, in the event of the mother continuing with a pattern of alienating behaviour in respect to the child’s relationship with his father:
Such a scenario would be extremely unfortunate, because [the child] will continue to live in a state of fear of his father and grow up having been convinced by his mother that his father is a bad person and terrifying. This would be a tremendous emotional burden for any person, particularly a vulnerable child or young person, and potentially result in [the child] experiencing a loss in self-esteem and a variety of other concerning psychosocial deficits.
On the other hand, orders requiring there to be a change of residence would also be extremely traumatic for the child and potentially expose the child to the risk of emotional and psychological harm. In that respect, the family consultant, in giving oral evidence, stated that the child would be:
… going into a situation with someone that they’ve had the impression their entire life poses very serious risks to them, and then they’re being told they’re going to go and live with them. I mean, that is also extraordinarily – it has the potential to be very damaging, emotionally and psychologically, to a child.
(Transcript 8 October 21, p.366 lines 23–26)
The unfortunate reality is that, despite the child’s memories of the father being false and, in my view, likely to have been promoted by the mother, orders requiring the child to spend time with the father in those circumstances would understandably cause stress to the child. Further, the prospect of the child spending time with the father in the absence of his mother’s blessing and encouragement would no doubt be traumatic for the child. In that context, in giving oral evidence, the family consultant stated that the child would be:
… going from an environment at the maternal residence where it seems like his father is promoted as dangerous and bad into a situation where it’s focused at developing and refostering that relationship with someone he allegedly thinks is dangerous and bad, and the potential for him to have this sense of stress and inner chaos would be pretty significant, I would think.
(Transcript 8 October 2021, p.366 lines 10–14)
Further, aside from the risk of emotional and psychological harm, there is also some risk of physical harm to the child, who stated in his conversation with the ICL that, in the event of him being forced to spend time with his father, he would “run away”. That prospect, for a 10 year old boy, presents as an unacceptable risk.
MITIGATION OF RISK
Having identified the existence of an unacceptable risk if orders are made requiring the child to spend time with the father, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko at [83] referring to Russell v Close.
As previously noted, the risk that I have identified in the child spending time with the father is substantially as a result of the child’s unwillingness for that to occur. Having regard to the risk being due to the child’s unwillingness to spend time with the father, it is my view that the only means by which the child can realistically spend time with the father without being exposed to that risk is either:
·The child and the parents engaging in a program of successful therapy; or
·The mother giving her blessing and encouragement to the child spending time with the father; or
·The child, with growing maturity and independence, determining that he wishes to spend time with his father.
In response to questions from the ICL, the father acknowledged that family counselling had very little prospects of being successful in the absence of cooperation from the mother.[13] I agree with that assessment. Based on the evidence in these proceedings to which I have earlier referred, I am comfortably satisfied that the necessary cooperation would not be forthcoming from the mother.
[13] Transcript 27 September 2021, p.97 lines 8–12.
Further, the evidence satisfies me that the mother will be very resistant to the child spending any time with the father. In that respect, the family consultant agreed that in the context of the mother’s conduct, one could have no confidence that the mother is going to support the child’s relationship with the father “in any way, shape or form”.[14]
[14] Transcript 8 October 2021, p.363 line 46.
Having regard to the reality that there are no reasonable prospects of expecting the mother to cooperate in family therapy or to give permission for the child to spend time with the father, let alone to encourage that occurring, there is a real dilemma for the Court in the context where I am satisfied that it would be in the best interests of the child to spend time with his father. That is, there is a risk that, in compelling the child to spend time with his father, the child will be caught between an obligation imposed by the Court and his mother being obstructive of the process.
Focusing upon that issue, during the course of the proceedings the family consultant agreed with my presentation of that dilemma which I expressed in the following terms:
[The child] is travelling pretty well at the moment, and it’s a balance between the benefit he would get from having a meaningful relationship with his dad, who, as I say, is very presentable, articulate – came across well, and the long-term benefits that you’ve recorded of that sort of relationship, as opposed to what is going to be turmoil, trauma, the mum’s resistance, a messy scenario?
In agreeing with that characterisation of the dilemma faced by the Court in this case and, further, acknowledging what she described as the “terrible tragedy” of the child not having a meaningful relationship with the father, the family consultant opined:
…it may be the safest alternative for [the child] if his father is to let go and wait for [the child] to come to him at a time and place when he is ready, if that ever occurs. And I think, as I said – I will repeat it – I am very sad about this matter. Trust me – I’ve spent a lot of sleepless nights over it, and I’m about to cry. I – I feel very sad for the father, but I think that this little boy needs to be protected.
(Transcript 8 October 2021, p.364 lines 11–16)
Understandably, the family consultant was visibly emotionally affected in expressing that opinion. The regrettable reality of this case, as noted by the family consultant, is that, in the context of the mother’s attitude in these proceedings, “there is no outcome that is good for [the child]” and that, as she observed, “is very very sad.”
In summary, the evidence in these proceedings satisfies me that if orders are made for the child to spend time with the father, the child will be placed in a situation of ongoing stress, tension and anxiety, primarily as a result of his mother’s unwillingness to facilitate that occurring. In those circumstances, it is likely that the child will be caught in the middle of ongoing disputation between not only the mother and the father, but also other members of the broader paternal and maternal families. In other words, the current stability which he experiences and which the evidence indicates is beneficial to him would be disturbed, if not substantially disrupted.
The dilemma for the Court in those circumstances is that, to ensure an outcome where the child’s relationship with his father is re-established would require orders to be made effecting a change in the child’s residence so that he did not come under the negative influence of his mother.
While initially seeking such an order, during the course of the proceedings the father acknowledged that orders providing for a change of residence, which would include the prospect of the child changing school and moving from his friends and peers, would be a traumatic experience for the child.[15] The child’s stepmother, who I have indicated was an impressive witness, also acknowledged that such an order would be a “traumatic experience for [the child]” and would also involve “significant risks” to the child’s emotional well-being.[16] As previously noted, the family consultant opined that compelling the child to live with a man who he had been conditioned to believe is dangerous, that is, the father, has the potential to be extremely traumatic for the child. As a matter of logic and common sense, that view has to be correct and the Court cannot ignore the significant risk that presents to the child.
Summary of balancing the primary considerations – prospect of a meaningful relationship as against the issue of risk
[15] Transcript 27 September 2021, p.38 lines 5–7.
[16] Transcript 28 September 2021, p.134 lines 30–35.
In circumstances where I am satisfied that the mother will not cooperate in a program of family therapy and, further, in circumstances where I am satisfied that the mother will not tolerate let alone encourage the child to have a relationship with his father, the decision before the Court comes down to two possible outcomes, which are:
(a)Should there be an order for change of residence; or
(b)Should the Court make orders that facilitate the child having a relationship with the father in circumstances where the child matures and is able to liberate himself from his mother’s influence to such a degree that he willingly communicates with and forms a relationship with his father.
While it is very much a finely balanced decision, in circumstances where I am satisfied that the child would be extremely traumatised by orders requiring there to be a change of residence, regrettably, I am satisfied that the only viable option is the second outcome. This is in circumstances where, at least part of the difficulty in restoring the child’s relationship with the father has been due to the conduct of the father himself who, for a period of approximately three years, disengaged from the proceedings.
Accordingly, the orders I make will focus upon the father retaining, at least, a connection with the child through the ability to provide gifts and short messages to the child from time to time. Hopefully, this will establish a degree of communication such that a future relationship between the child and his father is viable and fostered. Significantly, it would also provide, at least, a link to the possibility of the child having a relationship with his father and his paternal family, including his two sisters, at a point in time in the future.
CONCLUSION AND ORDERS
Parental responsibility
The mother sought sole parental responsibility. Both the ICL and the father sought an order for equal shared parental responsibility. I am not satisfied that it is practicable for there to be an order for equal shared parental responsibility. In that respect, ss 65DAC(2) and (3) of the Act provide that, in the event of an order being made for the parties to have shared parental responsibility, then, in circumstances where that responsibility involves making a decision about a major long-term issue in relation to the child:
(2) The order is taken to require the decision to be made jointly by those persons.
…
(3) The order is taken to require each of those persons:
(i)to consult the other person in relation to the decision to be made about that issue; and
(ii) to make a genuine effort to come to a joint decision about that issue.
As a result of the matters to which I have referred, I am of the opinion that the parents lack that capacity to make decisions in accordance with s 65DAC. Accordingly, in all the circumstances to which I have referred, I am satisfied that the presumption of equal shared parental responsibility should not be applied. In circumstances where the child will be living with the mother, I will make an order that the mother have sole parental responsibility.
Live with
For reasons which I have previously set out, the orders will provide for the child to continue to live with the mother, in circumstances where she has been the child’s primary carer since his birth.
I do not make orders compelling the mother to facilitate the child spending time with the father because it would be a futility to do so. I will however, make an order that the child is to spend time with the father as agreed between the mother and the father and, as and from when the child turns 13 years of age, the child shall spend such time with his father as he wishes. This provides the opportunity for the child’s relationship with the father to be developed as the child matures and is able to make a determination as to whether he wishes to have a relationship with his father. This will be a possibility in the context where subsequent orders will provide for a channel of communication to take place between the father and the child.
For reasons which I have set out, I decline to make an order in accordance with paragraph 4 of the mother’s proposed orders, which would effectively terminate all meaningful contact between the child and the father.
Communication between the child and the father
I propose to make an order in accordance with paragraph 5 of the mother’s proposed orders, which facilitates the father communicating with the child by way of cards, gifts and letters on special occasions, save to the extent that the address to which the father is to send those items shall be the child’s place of residence.
In circumstances where I have found that the mother is likely to dissuade the child from having a relationship with his father, I do not make order six as proposed by the mother, as it would enable the mother to veto the child’s receipt of such gifts and messages. Instead, I will include an order that “the mother shall, on receipt of any correspondence or items from the father in accordance with Order (3) above, provide such correspondence or items to the child.”
Exchange of information
In proposed paragraph 7 of the mother’s minute of order, she proposes that she provide the father with email copies of the child’s school reports. In circumstances where I am not satisfied that the father has perpetrated the acts of violence upon the mother as contended by the mother, there is in my view, no reasonable basis for the father to be deprived of information that a parent would ordinarily receive in respect to their child’s significant activities, educational development and medical issues. Those matters are set out in paragraphs 12 and 13 of the orders proposed by the ICL and I will make orders in those terms.
Similarly, it is appropriate that the father is informed of any medical emergency relating to the child and I will make orders in accordance with paragraph 14 of the ICL’s proposed orders.
Overseas travel
In proposed orders 8 and 9 of the mother’s minute of order, the mother seeks orders that would enable her to travel overseas with the child.
The family consultant, in giving oral evidence, expressed the view that it would be in the child’s best interests that he had the opportunity of travelling overseas, including, most relevantly, visiting his grandparents’ homeland, meeting some of his relatives and experiencing his culture. On the other hand, the family consultant expressed the view that it is important that the father be notified of any proposed travel.[17] I accept the validity of that opinion. I further accept that difficulties can arise in circumstances where the mother, her present husband and the child’s brother propose to travel overseas and there is a restraint on the child preventing him from travelling with them.
[17] Transcript 8 October 2021, p.368 lines 32–36.
On the other hand, in the context of the antipathy that the mother has shown towards the father, the Court has a concern that, in the event of the mother finding the child’s contact with the father to be disagreeable, or the vicissitudes impacting upon the mother’s life are such that she desires to leave the Commonwealth for a period of time, there is, as contended by the ICL, a risk that the mother may take the child to an overseas destination, including potentially a non-Hague Convention country.
Balancing those considerations, I respectfully agree with the submission of the ICL that, while it would involve further proceedings, if the mother wants to travel overseas with the child, it is not an unreasonable burden to place upon her a requirement to firstly seek the father’s consent to the proposal. As noted by the ICL, in circumstances where the parties are unable to agree, the mother would have the opportunity of making a relevant application to the Court which would require the mother to provide to the father and, if necessary, the Court, the relevant details of the proposed travel.
In those circumstances, I propose to make orders in accordance with paragraphs 21 and 22 of the ICL’s minute of order, which included the child being placed the airport watch list maintained by the Australian Federal Police.
Restraints
Both the ICL and the father sought orders for restraints to be imposed upon both parents. In circumstances where I have not made orders mandating that the child spend time with the father, I do not propose making an order as proposed in paragraph 17 of the ICL’s minute, or the comparable order as proposed by the father in paragraph 16 of the father’s minute of order. I will, however, make the restraints set out in the remaining orders under that subheading in the ICL’s minute of order, which is essentially replicated in that proposed by the father.
Procedural orders
Both the ICL and the father have sought a procedural order that each party has liberty to apply in the event of non-compliance with these orders. Such an order would, however, in my view, risk circumventing the requirements of s 60I of the Act, which focuses upon an obligation for the parties to attempt to resolve matters before commencing litigation. Accordingly, issues of non-compliance are best addressed in the context of Division 13A of Part VII of the Act.
In her proposed order 20, the ICL has indicated a preparedness to explain the orders made by the Court to the child. That is entirely appropriate and consistent with the obligations of the ICL. The Court is indebted to the ICL for a preparedness to take on that responsibility.
In circumstances where, in the Court’s opinion, it is unlikely that the mother will take steps to facilitate the father obtaining information regarding the child’s education and medical needs, I am satisfied that the parties should be given liberty to serve a copy of these orders upon the child’s school, or any future school, the child’s treating doctors and any other medical providers as proposed in order 25 of the ICL’s minute of order. In the absence of knowing whether the child may attend for extra-curricular activities, I do not propose to include that as a category of possible recipients of these orders. In that context, I have had regard to the potential for the purpose and intent of s 121 of the Act to inadvertently be circumvented.
For completeness, I have considered the balance of orders proposed by each of the parties however, to the extent that the parties’ respective proposals have not been included in these orders, it can be inferred that I have found that the orders are either unnecessary or not in the best interests of the child.
Accordingly, for all these reasons, I make orders as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and eighty two (282) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 11 April 2022
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