MURAD & FAZIL

[2014] FCCA 1412

FEDERAL CIRCUIT COURT OF AUSTRALIA

MURAD & FAZIL [2014] FCCA 1412

Catchwords:
FAMILY LAW – Parenting dispute – mother making allegations of significant family violence by father – father completely denying allegations – children refusing to see father – whether children alienated by mother – father’s denials of violence not accepted – presumption of shared parental responsibility rebutted – children to live with mother – orders made as recommended by family report writer and sought by the Independent Children’s Lawyer.

Legislation:

Evidence Act 1994, s.140

Family Law Act 1975, s.60CC

Goode & Goode [2006] FamCA 1346

Applicant: MR MURAD

Respondent: MS FAZIL

File Number: MLC 3855 of 2013

Judgment of: Judge Burchardt

Hearing dates: 29, 30 April 2014 and 5 May 2014

Date of Last Submission: 5 May 2014

Delivered at: Melbourne

Delivered on: 10 July 2014

REPRESENTATION

Counsel for the Applicant: Mr Lovering

Solicitors for the Applicant: Macgregor Barristers & Solicitors

Counsel for the Respondent: Mr Boden

Solicitors for the Respondent: Starnet Legal Pty Ltd

Counsel for the Independent Children's Lawyer: Ms Bonney

Solicitors for the Independent Children's Lawyer: Victoria Legal Aid

INTERIM ORDERS

1. The mother have sole parental responsibility for the children [W] born [in] 1999, [X] born [in] 2000, [Y] born [in] 2003 and [Z] (“[Z]”) born [in] 2005 (“the children”). 

2. The children live with the mother. 

3. That [W] and [X] not be required to spend time with their father against their wishes. 

4. That [Y] and [Z] not be required to spend time with their father, until:

   (a)

   Mr Murad acknowledges his past abusive behaviour towards

   
   

   Ms Fazil and the children and apologise for his actions. 

   (b)Mr Murad engages in an appropriate program to address and resolve; the abusive nature of his behaviour towards family members, the risk that such behaviour poses for his relationship with the children, and the measures required to prevent him posing such risk to them in the future.  Mr Murad should attend the program until such time as he is assessed by the relevant agency as no longer needing to do so. 

5. That in the event that the father complies with order 4, [Y] and [Z] spend time with their father at a Contact Centre for a period of at least three months. 

6. That at the conclusion of this supervised period, a report from the Contact Centre should be requested. 

7. Ms Fazil attend a parenting program to assist her to understand the adverse implications of her actions on the children’s well-being and their ability to develop a relationship with their father. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3855 of 2013

MR MURAD

Applicant

And

MS FAZIL

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a parenting dispute about the best interests of the four children of the parties.  The children are [W] born [in] 1999, [X] born [in] 2000, [Y] born [in] 2003 and [Z] (“[Z]”) born [in] 2005. 

2. All four children either refuse outright to see the father or, at the very least, are extremely reluctant to do so. 

3. The respondent mother says this reluctance stems from the violence inflicted on her by the applicant father and also upon the children.  The father denies all violence categorically and says the children have been brainwashed against him. 

4. The father accepts the views expressed by the two elder children but seeks supervised time initially at a Contact Centre with the two younger children.  The mother opposes all time.  The Independent Children’s Lawyer proposes a reintroduction of time with the two younger children provided that the father takes certain preliminary steps to address his past behaviour. 

5. For the reasons that follow, I find that while the mother has to an extent exaggerated, and has also, whether wittingly or otherwise, fomented the children’s attitudes towards the father, the father has indeed committed significant acts of violence against the mother despite his denials. 

6. For the reasons that follow, I will be making the orders sought by the Independent Children’s Lawyer.  

Some agreed facts

1. While much of the material in this case is the subject of disagreement, there are some matters which are not disputed. 

2. Both the parties, and their new partners, are of [omitted] origin.  They met in New Zealand, to which I infer they had travelled as refugees, in 1998.  The father was born on [omitted] 1969 and the mother on [omitted] 1983.  She was therefore 15 at the commencement of cohabitation which followed an Islamic marriage.  The parties never undertook a civil marriage.  At that time the mother had family in New Zealand, all of whom subsequently returned to Australia. 

3. The four children were born in New Zealand and separation took place either in late 2006 (mother’s version) or March 2007 (father’s version).  Nothing turns on that issue for these purposes. 

4. Although the timelines are not entirely clear, it is clear that the father spent a certain amount of time during the relationship working and living in Australia and that the mother looked after the children either on her own or with the assistance of a brother who had remained in New Zealand for a period of time.

5. Orders were made in the Family Court at [omitted], New Zealand on 10 October 2007 by consent whereby the children lived with the mother and contact was ordered with the father every Sunday from 1 to 7 pm when the father was in New Zealand.

6. On 9 October 2008, Judge McAloon gave judgment in a proceeding between the parties in which the mother sought a variation to the existing orders to enable her to relocate to Australia.  The Judge’s Reasons are annexure “FF5” to the mother’s affidavit sworn 13 September 2013.  Judge McAloon made a number of observations about the father’s credit as a witness that were extremely damaging to him and the mother was successful in her application.  The order permitting the mother to relocated to Australia with the children is annexure “AHM1” to the father’s affidavit filed 16 May 2013 and the mother relocated to Australia shortly thereafter.

7. The mother married her present husband, Mr H, on [omitted] 2011 and they have a two year old child and are either shortly expecting or have recently become parents of their second child.  

8. The father has re-partnered and lives with his partner and two of her three children. 

An overview of the affidavit evidence – the father

1. The father’s affidavit filed 16 May 2013 sets out the details of the birth of the parties, the commencement of their relationship and the births of the children.  It goes on to assert that when the parties lived in New Zealand the mother took care of the children and the father conducted factory work from Monday to Friday. 

2. The affidavit asserts at paragraph 9, “The Mother and I separated as the Mother was unfaithful to me with her current husband.” 

3. The affidavit asserts that upon separation the father went from New Zealand to Brisbane, Queensland, in 2006, and the mother to Australia in 2007 but she chose to live in Melbourne.  The father’s affidavit goes on to assert that orders were made by consent on 10 October 2007 that the children live with the mother and spend time with him.  In fact it is clear from the materials that that order was first made earlier than that. 

4. The father asserted that he had an informal agreement following separation that he would spend time with the children in Melbourne and Brisbane as agreed and that he did so on 10 to 15 occasions a year up until 2010 when the mother married Mr H.  He asserted that since then he had seen the children only twice. 

5. The affidavit went on to assert that the mother’s family and Mr H were influencing the mother to restrict the father’s time with the children and that “There was an occasion when [Mr H] confronted me and stated that the Mother still loves me and he does not want me around” (paragraph 14). 

6. The affidavit deposed to the two occasions between 2010 and 2012 that he had spent time with his children.  On one occasion it was said to have occurred at the maternal grandmother’s home and on the second occasion at his sister’s house. 

7. The father said he had previously been in contact with [W] and [X] on Facebook.  However the mother had blocked this when she found out.  The affidavit went on to depose to unsuccessful attempts at Roundtable Dispute Management.  It concludes by observing that the father moved to Melbourne in about December 2012 and gives details of his relationship with his new partner and her children.

The mother’s affidavit evidence

1. The mother’s affidavit sworn 13 September 2013 responds to the father’s affidavit.  She took issue with the date of separation and said this took place at the start of 2006, not March 2007. 

2. She further took issue with the father’s work.  As she put it, the father was [occupation omitted] during the week as well as on the weekend and, accordingly that the father did not, as he had asserted, assist in the care of the children at weekends. 

3. The mother denied the reason for separation asserted by the father and said that they separated because of continuing domestic violence and abuse.  The mother gave a history of domestic violence starting in 2000.  She said she was assaulted when about six to seven months pregnant with [X] on 21 March 2000.  She said at paragraph 8, “I went to the doctor after this incident.  I did not tell the doctor what had happened because the husband begged me not to tell the truth.  I told the doctor I had fallen down.”  She went on to say that as a result of damage to the umbilical cord an immediate delivery had to be induced.  She annexed as “FF1” a true copy of the medical notes.  It is interesting Ms Fazil should have kept these notes for such a long period of time but they do say that she told the doctor that she slipped over.  I have not been able to find anything in the medical notes that suggests the child was immediately induced.

4. The mother deposed to an incident on 9 December 2000 when she was assaulted and kicked out of the car in which they were at the time.  The mother deposed to having made a report to the police and annexed “FF2”, a copy of the police Family Violence Summary Report dated 9 December 2000. 

5. I note that the report describes the matter as, “ARGUMENT OVER WHERE THEY WERE GOING.  [MR MURAD] HAS PUT HER OUT OF THE CAR AND MADE HER WALK.” 

6. The mother described an incident where she was assaulted on 26 May 2001.  She attested that the father remained in custody for three days as a result.  Annexure “FF3” is the Family Violence Summary Report dated 26 May 2001.  I note that the report describes “Minor Bruising” and the description is, “VICTIM HAS BEEN PUNCHED AND SLAPPED IN HEAD AND BACK.”

7. The mother deposed that the father was charged and found guilty and ordered to undertake community work for a period of 12 months.  A period of separation followed but she returned.

8. The mother deposed to further incidents in October 2005.  On 9 October 2005 she deposed that the father had not only assaulted her severely, but assaulted her son when he gave the mother a telephone with which to call for help. 

9. The mother deposed that she was locked in her room by the father for three days and was let out when friends visited on 12 October 2005.  She was taken to hospital and annexure “FF4” is a copy of the Radiology Report dated 12 October 2005.  I notice that that record of the CT scan shows “normal CT head.” 

10. The mother deposed to short-term memory loss as a result of this incident and that she, as a result, applied to relocate to Australia, this being the subject of annexure “FF5”, the decision of Judge McAloon to which I have referred.  I would interpolate and say that there was obviously a measure of delay before the mother applied to come to Australia. 

11. There were obviously the intervening orders made on 10 October 2007 which I have already described (exhibit A1). 

12. The mother deposed that the father returned to New Zealand from Australia in August 2006.  The mother was out at the time but upon her return home there was a disagreement.  Annexure “FF6” is a further Family Violence Report arising from that incident.  I note that the father was described as, “unco-operative” and the mother as, “co-operative”.  I note that the support provided reads “Women’s Refuge.”  

13. The mother says that she separated as a result and went to a refuge.  Given the police annotation, that assertion is more probably correct than otherwise. 

14. Interim orders were made on 24 April 2007 for the children to live with the mother and spend time with the father from 1pm to 7pm on Sundays (annexure “FF7”). 

15. The mother went on to depose to an incident on 30 June 2007 when the father smashed her car windows with a baseball bat albeit that the mother was not there at the time.  She deposed that the father admitted this to her thereafter. 

16. The mother deposed as to her relocation to Australia on 6 November 2008 (annexure “FF8” is the order permitting her to travel). 

17. The mother took issue with the father’s asserted time spent with the children.  She deposed that the father did not see the children until July 2009 when she had visited her sister for two weeks in Brisbane.  She went on to say that the next time the children saw the father was in December 2011 in Melbourne. 

18. The further and final time according to the mother was in December 2012.  She deposed that the father came accompanied by a friend of his.  She deposed that her eldest son told the father he did not want to see him again because the father had suggested to him that he was homosexual and should not be friends with Australian boys.  The father said to the mother that she was not looking after the children in an Islamic way and was raising them wrong. 

19. The mother deposed to having applied for an Intervention Order on 26 February 2013 (annexure “FF8”).  She said that the deletion or blocking of the father from Facebook had been undertaken by [W] and [X].  She concluded her affidavit by deposing that she did not believe the children want to spend time with the father and that any time should be supervised and only occur after the completion of a family report and the children’s views considered and taken into account. 

The affidavit of Mr H

1. The affidavit of Mr H sworn 13 September 2013 deposed to the fact that he married the mother on [omitted] 2011 and had only known her for a couple of months at that time.  He denied that he had tried in any way to influence the children or the mother not to communicate with the father or to restrict his time with the children. 

2. He denied that there was ever an occasion where he spoke to the father and told him that the mother still loves him and that he did not want the father around.  He deposed that he had never said more than, “Assalamu Alaikum” to the father.  He said this was said when the father came to the house with one of his friends.  At that time he was woken up by loud banging on the front door.  He deposed that the father on that occasion confronted the mother and asked her why [W] was having pictures with Australian males on his Facebook and whether [W] was gay.

Father’s trial affidavit

1. The only other affidavit filed by the parties is the father’s trial affidavit filed 15 April 2014.  It is largely a reprise of the material that he had already deposed to in his earlier affidavit.  He repeated the assertion that separation took place because the mother was unfaithful to him with her current husband.  He deposed to having been served with the application for an Intervention Order and that on 18 March 2013 he agreed to an undertaking (annexure “AHM5”). 

2. He responded to the Family Report of Mr E dated 3 April 2014.  Having set out the recommendations, he deposed that he wished to spend time with all the children but respected the wishes of [W] and [X]. 

3. He went on to depose at paragraph 31, “I am content to prove to the Court that the Mother’s allegations are fabricated” and went on to say that he would exercise any time with the two younger children and would consent to supervision if the Court were to order it.  In addition, he sought to communicate with the children and send them letters, cards and gifts and he would like to be informed about their schooling and medical needs. 

The Family Report of Mr E

1. Mr E noted the interview process he had undertaken and the fact that the mother refused to be interviewed or seen with the father during the course of the assessments.  He also noted that he had not seen the children with the father, and set out the factors that had led him to this conclusion (paragraph 4, page 4).  I note that Mr E observed at page 5:

   “The children’s presentation suggested that they would have been significantly distressed if required to see their father as part of the assessment, and would have stridently opposed any attempts by the writer to require them to do so.”

2. It should be noted that this report followed an earlier section 11F report on 16 October 2013.  It is not however necessary to refer in terms to that report although some matters arising from it are dealt with here. 

3. Mr E summarised the background to the dispute noting the disagreements in the evidence which are substantially as I have set them out above.  I note that on several occasions in the report Mr E expressed the view that the proceedings would be better assisted if further information was available from New Zealand police and child protection authorities and the New Zealand Family Court.

4. Mr E’s report sets out in considerable detail and in a very helpful way the course of his discussions with the parties.  I do not propose to traverse these matters in any detail at all.  I note that paragraph 17, page 11, Mr E recorded:

   “During the writer’s various assessments with her, Ms Fazil presented as an articulate woman who described her experiences and views in some detail.  Although there were some aspects of her narrative that she was uncertain about, she was nevertheless able to provide considerable detail to the allegations she made about Mr Murad’s violence towards her and the children, and the extent to which he spent time with the children subsequent to their separation.  In addition, Mr H presented as an articulate man who displayed considerable insight and sensitivity about the children and his role in their lives. …”

5. At paragraph 33, pages 18 & 19, Mr E said:

   “During the writer’s various interviews with him, Mr Murad presented as an articulate man with very forthright views.  Whilst it was apparent to the writer that Mr Murad was unhappy with the process and the outcome of the previous assessment in October 2013, he was nevertheless not aggressive in the manner in which he expressed his dissatisfaction.  There was one instance however, when the writer challenged Mr Murad about certain inappropriate comments the latter made in relation to the writer’s neutrality.  Mr Murad appeared upset with a perception he had formed that the writer simply believed everything that Ms Fazil had outlined to him.  In addition, the writer had some concerns about Mr Murad’s presentation during the current assessment.  Despite being given ample opportunity to provide a reasonable level of detail to his version of the history, Mr Murad seemed unable to do so and appeared more intent on portraying himself in a positive light.”

6. I note at paragraph 39, pages 21 & 22, Mr E said:

   “Given the clear disparity between Mr Murad’s account of his time with the children and the accounts provided by Ms Fazil and some of the older children, the writer sought to clarify with Mr Murad some of the details of his alleged time with the children.  Mr Murad was unable to provide this detail despite being given ample opportunity to do so.  In order to assist

   
   

   Mr Murad in clarifying relevant information, the writer requested that he provide some general description of the time he spent with the children during each of the years following their arrival in Australia in 2008.  Mr Murad was unable to provide such information.  It was during this discussion that Mr Murad appeared to become annoyed with the writer and suggested that the latter was simply adopting the version of events provided by Ms Fazil.  The writer assured Mr Murad that this was not the case, and that instead, the writer was affording him an opportunity to expand upon his general claims of having spent regular and overnight time with the children.”

1. At paragraph 41, pages 22 & 23, Mr E observed:

   “Mr Murad believes that Ms Fazil’s allegations of violence by him towards her and the children are completely false.  In addition, he claimed that the children’s adverse views about him have been manipulated and influenced by Ms Fazil and members of her network, and particularly by Mr H and members of the maternal family.  He was adamant in denying any violence against Ms Fazil, as has been specifically alleged by her, and was also clear that he has not been violent towards the children. …”

2. At paragraph 43, pages 23 & 24, Mr E continued:

   “Mr Murad was provided with general feedback about the children’s views in relation to spending time with him.  He was generally dismissive of the feedback however, as he does not perceive their responses are an accurate reflection of his relationship with the children or their real views about him.  He claimed that if he was provided with the opportunity to see the children in the presence of other people, he would be able to demonstrate what a loving father he is towards them.”

3. Mr E detailed his interviews with the children.  It is clear that the two elder children disclosed violence perpetrated by the father on the mother and their adamant refusal to see him.  I note that when [Y] was interviewed there were some discrepancies with what he had said at the s.11F conference.  I further note that when Mr E asked what would happen if a Judge insists that he had to see his father [Y] stated he would jump off the building and commit suicide (paragraph 65, page 33).

4. I note that [Z] likewise had discrepancies with what he had earlier said in the s.11F interview and when this was raised he became very quiet and withdrawn (paragraph 71, page 35).  I note that at paragraph 72, page 36, Mr E said:

   “… The writer formed an opinion that the changing nature of [Z]’s comments may have arisen because he appreciated that his comments might have been reflecting negatively on important people within his family.”

5. I note that Mr E set out at paragraphs 76 and 77 reservations about the father’s ability to provide accurate and credible information.  To the contrary at paragraph 78, Mr E found Ms Fazil an articulate woman who provided a detailed account of her experiences, and particularly her allegations about Mr Murad’s violence. 

6. I note that at paragraph 79, Mr E recorded that the mother recognised that the children had had access to information about their father that had not necessarily been the product of her own experiences but in the circumstances (paragraph 80, page 39) Mr E found this was unavoidable.  It is fair to say that the general tenor of Mr E’s report was largely accepting of Ms Fazil’s account and concern about the father’s capacity to give credible information.  Mr E noted that neither parent was particularly likely to facilitate the children developing an appropriate relationship with the other parent (paragraph 86, page 42) and that irrespective of whose account was deemed credible by the Court it was apparent to Mr E that the parental relationship had been significantly problematic for some time and would be likely to continue to be so if significant changes did not occur (paragraph 87, page 43). 

7. Mr E did not recommend joint parental responsibility because of the extremely poor interpersonal dynamic between the parents (paragraph 88, page 44) and recommended that Ms Fazil as the primary carer should have that responsibility (paragraph 89, page 44).  The kernel of what Mr E had to say is at paragraphs 96 and 97 as follows:

   “96.  The ages and developmental maturity of [W] and [X], coupled with the detailed accounts they provided about their father’s behaviours and their own personal experiences of him, would suggest that significant weight should be attached to their views.  Consequently, the writer believes it would not be appropriate to require these older children to spend time with their father against their wishes.  In terms of [Y] and [Z], the writer believes there are particular issues associated with them that will complicate attempts to implement arrangements for them to spend time with their father in the future.  For example, whilst the Court may not consider that significant weight should be attached to [Y]’s views because of his relatively younger age, his strong opposition to spending time with his father will nevertheless create significant tensions within his family environment if his mother is required to facilitate such an arrangement.  In addition, the writer believes that [Z] would experience significant tension and distress if required to spend time with his father, and particularly if his older siblings are not doing so and he is the only child attending.  It is also possible that the older children may undermine arrangements for their younger siblings to spend time with a man whom they view so negatively.

   97.  The writer appreciates that the Court may make findings of fact about the credibility of the allegations made by Ms Fazil.  In the event that they are not deemed to be accurate, the Court may conclude that at the very least, the two younger children should be required to spend some time with their father that will enable them to have an opportunity to develop a relationship with him.  If such a conclusion is reached, the writer believes that it would be more appropriate for [Y] and [Z] to spend time with their father in a professionally supervised setting, where they can be appropriately prepared and supported through the process.  In addition, such an arrangement would provide the Court with an independent understanding of the interactions between the children and their father, and more particularly, how Mr Murad responds to [Y] and [Z].  Such an understanding would then provide a basis upon which decisions could then be made about the nature of the time they should be spending with him in the future.”

8. Mr E’s recommendations set out at paragraph 98 are consistent with the materials I have traversed.  I note that at subparagraph (v) Mr E recommended:

   “v.     That in the event the Court determines that Ms Fazil’s allegations against Mr Murad are deemed credible, [Y] and [Z] not be required to spend time with their father, until:

   (a)     Mr Murad acknowledges his past abusive behaviour towards Ms Fazil and the children and apologises for his actions.

   (b)     Mr Murad engages in an appropriate program to address and resolve; the abusive nature of his behaviour towards family members, the risk that such behaviour poses for his relationship with the children, and the measures required to prevent him posing such risk to them in the future.  Mr Murad should attend the program until such time as he is assessed by the relevant agency as no longer needing to do so.”

9. Irrespective of the outcome Mr E plainly contemplated only interim orders being made in the first instance. 

The evidence given in Court – the father

1. I should interpolate at this point and say that although the issue of material from New Zealand was raised at the commencement of the trial no party made any formal application for an adjournment to enable such material to be obtained.  I declined to adopt the somewhat vaguely made suggestions that the Court should adjourn because, in my view, the delay that would be occasioned thereby would be substantial bearing in mind the Court’s lists.  This matter had been in the Court for the better part of a year and further delay was undesirable. 

2. Further, I had every confidence that having seen the witnesses in the witness box I would be able to come to conclusions as to where the truth lies. 

3. The father is presently unemployed but said he would be starting work soon.  He confirmed in evidence-in-chief that he seeks equal shared parental responsibility, and that he is not pressing for time with [W] and [X].  Nonetheless, he loves all his children and seeks time with [Y] and [Z] at a Contact Centre. 

The father under cross-examination by counsel for the mother

1. The father confirmed that he had worked as a [omitted] in Brisbane for a long time of up to seven years.  He conceded that he can understand written English but finds verbal difficult, although plainly he conducts his business as a [omitted] in English. 

2. When cross-examined about the evidence he had given in New Zealand the father was in my view unresponsive, perhaps not surprisingly in view of the criticisms advanced by Judge McAloon. 

3. The father was pressed about the amount of time he had spent with his children.  In my view he was evasive and unresponsive and no better able to give the Court a coherent persuasive account of such time than he was when he saw Mr E.  He said the first time he saw the children after they came to Melbourne may have been in the school holidays but he was unable to remember the date.  When asked if he had read the decision of the New Zealand court he said it was too long ago and there were too many papers.  He stuck to the proposition that the relationship ended because his wife was unfaithful. 

4. When pressed on the issue of family violence committed against the mother the father remained adamant.  He completely and resolutely denied ever being violent to anybody. 

5. Notwithstanding this, the father did concede that he had done some community work pursuant to a court order.  He said he did not complete the community work because the case was finished.  He said the reason for the community work was that he had no lawyer and was new to the country which was why it had all happened. 

6. That latter assertion is inconsistent with his relatively lengthy residence in New Zealand beforehand (he first went to New Zealand in 1994). 

7. The father was taken to annexure “FF3” to the mother’s affidavit and cross-examined about the incident where the mother said he had smashed her car window.  In respect of all these matters the father’s evidence was, in my view, unresponsive and unconvincing. 

8. It was put by counsel that the first time the father saw the children in Australia was in July 2009 at the mother’s sister’s home in Brisbane.  He said he saw them long before that at his sister’s home in Melbourne, maybe a few months before.  When further questioned however, he conceded he had not seen his children from 2009 until December 2011.  He said this was because the mother refused to let him see them.  When it was put to him that the next time after that that he saw his children was in December 2012 he did not directly respond to the question, and said that he used to see his children but the mother stopped him. 

9. The father denied accusing his son of being a homosexual and said he was not that sort of person. 

10. Nonetheless, despite some equivocation, he conceded that he had followed his son on Facebook.  He maintained that it was the mother who blocked him and not his son.  He said on more than one occasion words to the effect that if he was given time he could prove that the children love him and he wanted to see all his children.  While he conceded that he had read the older children’s views of him, he said this had been made up for them and it was not their real view.  It was made up for them by the mother, the maternal grandmother and aunts. 

11. It was put to him that he was asserting that the mother did not properly care for the children and he replied that the children had been neglected and not cared for in the proper way.  When he was asked what this was based on he said this was based on the fact that his children were not performing at school and did not do well in tests.  He said when he saw them they did not look like children looked after properly. 

The father under cross-examination by the Independent Children’s Lawyer’s counsel

1. The father confirmed it was his view that the children were not being properly looked after by the mother.  Nonetheless, he confirmed he was not asking that the children live with him.  Counsel put it to him that he did not know about the children’s education at the moment and he conceded that at the present he has no access to the children and said they were forced from him.  He did not know which school the children in fact attended. 

2. Counsel put it to the father that at the time of separation all the children were eight years old or younger and that he had not been a regular part of their lives since.  The father’s answer was unconvincing.  He said that after the children moved to Australia he tried many times to contact them. 

3. The father said that the children had spent a week with him in Queensland and he said that he had told Mr E about this (although there was no mention of this in Mr E’s report). 

4. When cross-examined about equal shared parental responsibility it was apparent that he did not understand the question.  When it was put to him that he was unable to cooperate with the mother about the children he replied that if she changed her mind and accepted him as the biological father he would be able to cooperate. 

5. He was cross-examined about the mother’s age at the time of marriage.  He said that she was 17 when she married and he did not want to talk about it.  He said that at that time he was three years older than her.  Counsel clarified this with the father and it is of course clear that he was always far older than her than that. 

6. When cross-examined about the allegations of violence he said these were just lies but when taken again to annexure “FF3”, being the account in 2001, his replies were evasive and unresponsive.  He said he was not arrested but that the police had called him.  He admitted that he signed a statement. 

7. When taken to the material showing that the mother was hospitalised in 2005 he said this was just all lies.  When taken to the fact that [W] said he had hit the mother he said [W] was too young to say anything like that. 

8. It was put to him by counsel that he did not really know [Y].  It was put that he had not seen [Y] since he was four years old in any meaningful way.  The father’s answer was that he had bought shopping for him from Malaysia. 

9. When it was put to him that [Z] had very few memories of him and could not remember what he looked like the father replied that this had been put into his mind.  He said again, “If the Court gives me one more chance I can prove I am a good father.” 

10. Counsel put it to him that he had sent no cards to the children since 2006.  He replied that when he moved to Melbourne he invited them to his place and that the mother and her husband came with the children to where he was living.  He had to concede that this was not in his affidavit when it was put to him that that was not true. 

11. When questioned as to whether he had thought about what the effect might be of his coming into the children’s lives he replied that it was propaganda when the children are saying they do not want to see their father and that this could never happen. 

12. In re-examination the father confirmed that he had immigrated to Australia in 2006.  He said that he had seen the children after the mother relocated to Australia every holiday but he could not give specific dates.  He said the last time the children came to his place was in February 2010. 

The evidence of the mother

1. The mother adopted her affidavits as true and correct. 

2. Under cross-examination by counsel for the father the mother stuck resolutely to her version of the events.  She confirmed that she had lived in New Zealand since 1994 and that her brother had left New Zealand in about 2006.  She said she was struggling with the children and wanted to come to Australia for support.  She said the father did not want her to come here because this was part of his control over her. 

3. The mother’s evidence about the reasons for her desire to come to Australia was not given with the same element of conviction as the rest of her evidence and I find it not entirely convincing.  The mother agreed there was no mention of allegations of family violence in the New Zealand court’s decision.

4. The mother stuck to her position as to the amount of times the father had seen the children.  Her description of the visit to the maternal aunt’s home in Brisbane in 2009 seemed to me to be given with evident sincerity. 

5. Likewise the mother’s evidence about how she met her current husband and when was entirely believable. 

6. The mother said she had another child coming and had a very good life and that she did not want it interrupted.  She said it would be easier if the father left them alone.  She denied telling the children they did not want to see their father and said that they said this.  She said that they asked her together about the father’s violence and because they are old enough she told them. 

7. The mother was cross-examined about her residence in Australia.  It emerged that her brother, [name omitted], had in some fashion obtained Child Support payments for the two children [W] and [X].  This was because he had permanent residence.  There was extensive cross-examination about the visit in Queensland in 2009 which involved an assertion that the father hit [Z] when [Z] urinated on him.  I found this evidence unconvincing since there was no call to the police and the matter was not in any way referred to a medical practitioner. 

8. I note that the mother conceded that [Y] has read court documents and that this led him to ask questions about the father.  The mother’s evidence was that [W] had already told him things about his father and that [Y] wanted to find out.  [Y] had told his siblings.  She conceded that [Z] had also asked about what had occurred and that she told him “a little bit, not a lot.”  She said the two younger children already knew about these matters from [W] and [X].  

9. The mother was cross-examined about the younger children seeing the father and said that it was a long time since they had seen him.  She said that she wanted the children to be safe and that she did not trust the father with the children.  She became labile at this point. 

10. The mother was cross-examined about the assaults upon her in 2001 and 2005.  I should say that I found the report of the incident when her head was smashed on the floor tiles and being locked in her room for three days entirely convincing.  

11. The mother conceded that [W] had had the father as a Facebook friend in about 2011 and that at that time he had wanted a relationship with his father.  There was a Facebook entry showing [W] with an Australian boy and the mother recorded that the father had told [W] that he was a Muslim and should not be with this boy.  According to the mother the father also called [W] homosexual. 

12. The mother’s evidence was that [X] also had a Facebook entry a little later in which she was wearing pants of which the father did not approve.  Accordingly she ceased her father’s time on Facebook. 

Under cross-examination by counsel for the Independent Children’s Lawyer

1. The mother confirmed that if ordered to do so she would tell the children about seeing their father at a Contact Centre but confirmed that she did not want this to occur and that she did not trust him.  She confirmed that she does not want to upset the children and that there is no place for the father in their lives.  The children never received birthday cards and indeed had not received anything from the father since separation.  She said there were no cards, gifts or telephone calls either.  She said that once she arrived in Australia she lived with her mother and that the father knew her address but there was no contact from him.  She confirmed that Child Support has been paid since around about 2009 or 2010. 

2. She confirmed that she was worried about her children telling Mr E they might kill themselves.  This was not something they had said to her before and surprised her.  She confirmed that there is a social worker working with the family and that this and possibly school counselling could help [W].  The mother dealt in some detail with an incident in December 2012 when she said the father came to her home in Melbourne with a friend and broke her front door.  She said this took place around midnight and everyone was asleep.  She said she heard banging and the security door was broken.  She said they called security downstairs and the father and his friend ran off.  She confirmed that no actual threats were made.  She said that the father was sending messages on her husband’s phone and sending people to her house.  He was saying, “I know where you live and I can get you and I’ll take the children.”  She had to concede however that these matters were not in her affidavit nor had she referred any of the allegedly insulting messages sent to her to the police.  She said that people came to her house including the father’s sister with one of his cousins two times.  She said other men came too who said they were his friends and from his tribe. 

1. With the exception of the evidence given about the father’s sister I found these aspects of the mother’s evidence unconvincing.  They were not put in the mother’s affidavit and had all the appearance of exaggeration.   

2. Nonetheless, I do accept that the mother’s application for an Intervention Order was not made as a result of the father’s mediation application.  This evidence was given with evident sincerity. 

The evidence of Mr H

1. Mr H adopted his affidavit as true and correct. 

2. Under cross-examination by counsel for the father he said he had not discussed the case before the Court with the mother at all.  He was not sure about the text messages that the mother alleged.  I would interpolate and say that his preparedness to advance an account different from that of the mother both strongly supports his assertion that he had not discussed the evidence in the case with her and shows a frankness that does him credit. 

3. Mr H denied having any meaningful contact with the father at all and denied any telephone conversation with him. 

4. Mr H gave his version of the occasion when the father allegedly came to the family home in December 2012.  He said it was about midnight and the father came with a friend and knocked on the door very loudly.  He said the father put his finger on the peephole but was there for about five minutes.  He said the mother had not actually seen this. 

5. I would interpolate again and say that I have no doubt that Mr H was a witness of truth.  His account of some of the events was different to that of the mother and was in my view entirely believable.  I have no doubt that the father and a friend came to the family home in December 2012.  Their presence was clearly observed by Mr H and it is far more probable than otherwise that it was the father who attended.  The evidence does not identify anyone else who had any possible reason to do so. 

Findings as to credit

1. Demeanour evidence must be approached with a measure of caution.  That is particularly the case in dealing with people who are giving evidence through an interpreter or are not fully fluent in English and from a background that necessarily makes them unfamiliar with the Court processes in Australia. 

2. Nonetheless it has to be said, I am afraid, that the father was a bad witness.  I have already said on various occasions that his replies were unresponsive and evasive. 

3. The mother by and large was an impressive witness although in my opinion she is clearly given to a measure of hyperbole.  Her description of the alleged text messages which Mr H could not recall is perhaps just one example of the mother exaggerating, if not inventing matters. 

4. Mr H, as I have indicated, was an excellent witness whose evidence I accept. 

The evidence of Mr E

1. Mr E was cross-examined first by counsel for the Independent Children’s Lawyer.  He was taken to [Y]’s observation that he would jump off the building if ordered to see his father.  [W] had also said he would kill himself if ordered to see his father.  Although Mr E was concerned about it, he thought that this was over-dramatisation which would not be put into effect but rather reflected the strength of their feelings about seeing their father.  Mr E was clear that if any order was made for any of the children to see their father they would need support through the process, including counselling, which would inter alia address this expressed suicidal ideation.  

2. He suggested that there should be a Supporting Children after Separation Program for the children which is child-oriented and that should be attended by [Y] and [Z].  It assists in reunification.  He said that this should work closely with any Contact Centre and that the Supporting Children after Separation Program should be given, as should the Contact Centre, a copy of his report.  All of this should occur before they saw their father.  Whether or not the two elder siblings should be involved in counselling should be left to the counsellor. 

3. The elder children might undermine the younger two and the mother would struggle if the children saw their father.  Mr E said that if the mother’s complaints were accurate it would be important for the children to have an opportunity to see change, were the father to change, before time were to be spent.  

4. Mr E said that the children had not spent much time with the father on any view and if ordered would need to start in a supervised environment in any event.  There should be a report after supervision from the Contact Centre and also a further Family Report on the two younger children.  

5. Under cross-examination by counsel for the father, Mr E confirmed that the mother would benefit from Our Kids Program if the children were to see the father. 

Findings on the facts

1. Notwithstanding the reservations I have expressed about the mother, nonetheless it is entirely clear that her version of the events is in the main accurate.  It is clear that she was the subject of the assaults she has described in New Zealand.  While it is true as counsel for the father submitted that the police reports only show what the mother told them, the first point to be made is that the mother actually was activated to make such reports.  If the father’s denials of any sort of misconduct were entirely true and the relationship, as one might infer as a result, was satisfactory, there would be no earthly reason for the mother, whom it should be noted was extremely young at the time, to make reports to the police. 

2. That is not, however, the end of the matter.  Even the father concedes that in some way or another he was required to undertake community work as a result of court proceedings.  Annexure “FF3” in my view leaves no doubt.  The mother suffered bruising on that occasion and that is recorded not by the mother but by the police.  It is clear that the father was charged and convicted and put on community work as a result.  His assertions that this occurred because he had only recently arrived in New Zealand (he arrived much earlier than that) is unsustainable even though I would accept that his command of English was limited. 

3. The objective evidence shows beyond any doubt whatever in my mind that, to whatever extent the other instances might be thought to be equivocal, the incident in 2001 recorded in annexure “FF3” certainly happened. 

4. Once I find, as I do, that at least one instance of family violence is made out, that throws the father’s adamantine denials into complete disarray.  It is clear that the other assaults alleged by the mother took place and I make this finding bearing well in mind s.140 of the Evidence Act 1994 and the significance of findings of this character.  I also accept the mother’s account of the amount of time the father spent with the children both in New Zealand and in Australia.  The father was plainly working most of the time in New Zealand and the mother was plainly the primary carer.  

5. Once the father relocated to Australia he would have spent less time with the children in New Zealand whatever the court orders said (and these were scarcely for munificent time in any event). 

6. I accept that the father saw the children only in 2009 and 2012 as the mother asserts.  While she had much to say by way of complaint as to the father’s failure to interact with the children, it is equally apparent that the mother did not foment the relationship with the father either.  Indeed her position must have been, as it now is, one of opposition to that relationship. 

7. Equally however the father’s failure to pursue his relationship with his children speaks very poorly of his attitude.  I accept that he has not sent the children cards, letters, presents or other things since the children have been in Australia. 

8. There is no doubt that the children are utterly opposed to seeing their father.  They are reinforced in this attitude by their mother.  Notwithstanding this the two elder children would clearly remember the violence perpetrated by their father and their response is unremarkable. 

9. It is equally clear that the two younger children have been told all too much by their siblings and by the mother and it is quite apparent that some of the things they recounted to Mr E did not come from their own experiences, as Mr E himself found, but from what they had been told.  Nonetheless, the net result is that the children do not want to see their father and are very clear about this.  The father’s assertion that [Y] actually wants to see him is clearly totally misconceived. 

The Statutory Pathway

1. In Goode & Goode [2006] FamCA 1346, the Full Court of the Family Court set out the relevant statutory considerations:

   “65. In summary, the amendments to Part VII have the following effect:

   1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child.  “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility.  That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)). 

   3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).

   4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents.  If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)). 

   6.  The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).

   7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

   a.  the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends and holidays; and

   b.  the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   c.  the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent. 

   8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC. 

   10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents.  These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.     The child’s best interests remain the overriding consideration.”

Joint parental responsibility

1. The Independent Children’s Lawyer submitted consistently with

   
   

   Mr E’s report that the mother should have sole parental responsibility.  The father sought joint parental responsibility and the mother’s position was the same as that of the Independent Children’s Lawyer. 

2. In circumstances where the father has played no meaningful role in the children’s lives since they were very young and where the parents are so utterly unable to agree about anything, it is clear that the presumption of equal shared parental responsibility is rebutted.  Furthermore there has been extensive family violence and there is a need to protect the children from risks of violence or psychological harm.  In circumstances where the children are presently adamantly opposed to seeing their father it cannot be in their best interests to make an order for equal shared parental responsibility. 

3. The presumption being rebutted, the Court is required to consider the children’s best interests by reference to the matters in s.60CC of the Family Law Act 1975. 

4. Here of course there is, at least in conceptual terms, a benefit to the children in having a relationship with their father.  The father clearly loves his children although his affection needs to be seen in context.  For a man who says he loves his children so dearly, it is surprising that he waited until 2013 before seeking Court orders to have time with his children in circumstances where, even on his version of events, he had been precluded from seeing them effectively since around about 2011. 

5. Further, in view of the violence perpetrated by the father upon the mother and upon [W] at least at the incident in 2005, this being a matter to which I am required to give greater weight, the primary considerations do not particularly help the father. 

6. In the particular circumstances of this case, it is not necessary to traverse seriatim the matters set out in s.60CC(3). In the unusual facts and circumstances of the matter it is unnecessary.

7. The father accepts that the two elder children should not be the subject of any orders to spend time with him.  He would like to see them but accepts that at the moment they do not wish to see him. 

8. The real debate is whether or not there ought to be orders for the children to see the father in a supervised context. 

9. Counsel for the Independent Children’s Lawyer submitted there should be preconditions if the Court accepts that the father had been violent.  She submitted that the Court could not make final orders but that counselling should start when the father met the relevant preconditions expressed by Mr E.  It was also submitted that the mother should have counselling and I accept that that is entirely desirable. 

10. Counsel for the mother’s positions was essentially much the same.  I note that the mother undertook through her counsel to facilitate time were it to be ordered. 

11. Counsel for the father strongly submitted that the mother was a no contact mother and naturally enough contended for the proposition that his client should be believed.  Nonetheless, counsel submitted that orders should be made on an interim basis as suggested by the Independent Children’s Lawyer.  Essentially he contested for the versions of orders recommended by Mr E in the event that the mother’s accounts were found to be fabricated. 

12. In circumstances where I find unequivocally that the mother’s accounts of violence are not fabricated but entirely truthful, it necessarily follows that orders should be made as Mr E has recommended in paragraph 98 of his report and, in particular, subparagraph (v).

13. I have prepared draft orders to give effect to these conclusions and will give the parties an opportunity to consider them before making final orders.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  10 July 2014