Najar & Bata
[2024] FedCFamC2F 1336
•27 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Najar & Bata [2024] FedCFamC2F 1336
File number(s): PAC 2262 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 27 September 2024 Catchwords: FAMILY LAW – PARENTING – Best interests of children – Orders made Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CD, 60DE, 61D Cases cited: Banks & Banks (2015) FLC 93-63
Betros & Betros [2017] FamCAFC 90
Gorman & Huffman and Anor [2016] FamCAFC 174
Jollie & Dysart [2014] FamCAFC 149
Tibb v Sheean (2018) 58 Fam LR 351
Division: Division 2 Family Law Number of paragraphs: 120 Date of hearing: 29 – 30 August 2024 Place: Parramatta Counsel for the Applicant: Mr Karp Solicitor for the Applicant: Ark Law Lawyers Counsel for the Respondent: Ms Bateman Solicitor for the Respondent: Supreme Justice Lawyers Counsel for the Independent Children's Lawyer: Ms Rebehy Solicitor for the Independent Children's Lawyer: Jlm Family Lawyers ORDERS
PAC 2262 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NAJAR
Applicant
AND: MS BATA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
27 SEPTEMBER 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.All previous parenting orders are hereby discharged.
2.The mother have sole parental responsibility for making the major long-term decisions for the children X born in 2011, and Y born in 2013 (“the children”).
3.The children live with the mother.
4.The children spend time and communicate with the father in accordance with their wishes and only with the written consent of the mother.
5.Within 48 hours the father is to provide to the mother, by way of her solicitors, an email address at which he can be contacted for the purposes of Orders 6 and 7 herein.
6.Should the children express a wish to spend time or communicate with the father, and should the mother consent to such time or communication, the mother shall contact the father by email to arrange for such time or communication to occur.
7.The mother shall notify the father of any serious medical issue or hospitalisation that either of the children suffer from as soon as is reasonably practical to do so and shall include the diagnosis, prognosis and all reasonable updates by email.
8.Both parents are hereby restrained from speaking to the children about these proceedings or showing the children any document in relation to these proceedings.
9.Both parents are hereby restrained from speaking about the other parent, the other parent’s family or a member of the other parent’s household in a derogatory or negative manner in the presence or hearing of the children and shall remove the children from the presence or hearing of any third party seeking to do so.
10.Pursuant to s 68B of the Family Law Act 1975 (Cth) the father, Mr Najar, is restrained by injunction from:
(a)contacting the children or mother directly or through third parties other than legal representatives;
(b)approaching or attending upon the children’s schools;
(c)attending the children’s residence unless invited to do so in writing by the mother.
11.The Australian Federal Police be directed to remove the names of the children X born in 2011 and Y born in 2013 from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
12.For the purposes of s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the children X born in 2011 and Y born in 2013 are permitted to have an Australian Passport and the mother is hereby permitted to apply for an Australian Passport for the children X born in 2011 and Y born in 2013 without the consent of the father.
13.For the purposes of s 65Y of the Family Law Act 1975 (Cth), the mother is permitted to take the children X born in 2011 and Y born in 2013 from the Commonwealth of Australia without the consent of the father.
14.The ICL’s application for costs against the father is dismissed.
15.The ICL’s appointment is discharged.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This final parenting hearing relates to the children X born in 2011 and Y born in 2013 (“the children”). The children are aged 13 and 11.
The parties married in Country B in 2008 and finally separated in about March 2021. The father came to Australia in 2001. The mother came to Australia in 2010. Following separation, the children lived with their mother and did not spend time with their father until supervised visits commenced in April 2023. They spent a six-month period of supervised time with the father which ceased in September 2023.
In January 2024 the children recommenced spending supervised time with the father at a contact centre at Suburb C. These visitations are fortnightly on Saturday from 11.30 am to 1.30 pm.
The father works as a casual transport worker. He lives in shared accommodation in Suburb D. The mother is a stay-at-home parent.
PROPOSALS
The father seeks orders as set out in his Final Proposed Minute of Order, inter alia, that the mother have sole decision making responsibility about major long-term issues for the children (with the mother to first consult with the father and consider his responses), the children live with the mother, and spend time with him (in the absence of agreement) each alternate weekend from 11.00 am on Saturday until 8.00 pm on Sunday, as well as on special occasions.
The Independent Children’s Lawyer (“the ICL”) seeks orders as set out in her Case Outline filed 27 August 2024, inter alia, that the mother have sole parental responsibility for making the major long-term decisions for the children, that the children live with the mother, and the children spend time and communicate with the father in accordance with their wishes and only with the mother’s written consent.
The mother seeks orders as proposed by the ICL.
MATERIAL RELIED UPON
The father relied upon:
(a)His Case Outline filed 27 August 2024;
(b)His affidavit filed 15 July 2024 (including the video and other evidence referred to in annexures D and U to that affidavit, which video and other evidence was emailed to the Court and referred to in such email as a specific OneDrive link);
(c)His Final Proposed Minute of Order.
The mother relied upon:
(a)Her Case Outline filed 28 August 2024;
(b)Her affidavit filed 31 July 2024.
The ICL relied upon:
(a)The Family Report of Ms E, dated 24 November 2023.
The following documents became exhibits:
(a)Exhibit A: COPS Entry …;
(b)Exhibit B: Court Attendance Notice and Fact Sheet;
(c)Exhibit C: Final Apprehended Domestic Violence Order;
(d)Exhibit D: Email chain between the father and F Children’s Contact Service;
(e)Exhibit E: Email from the father to the Family Report writer dated 14.12.23;
(f)Exhibit F: Email from the father to the Family Report writer dated 20.12.23;
(g)Exhibit G: Email from the father to the Family Report writer dated 15.02.24;
(h)Exhibit H: Email from the father to the Family Report writer dated 26.03.24;
(i)Exhibit I: Email from the father to the Family Report writer dated 14.07.24;
(j)Exhibit J: Correspondence from the mother to G Contact Centre dated 15.12.23;
(k)Exhibit K: 1 x USB containing a video of the father;
(l)Exhibit L: ICL tender bundle pages 19 to 38;
(m)Exhibit M: Two additional pages of NSW Police subpoena material to be read in between pages 26 and 27 of ICL tender bundle;
(n)Exhibit N: Contact centre notes, ICL tender bundle pages 39 to 143;
(o)Exhibit O: NSW COPS record, pages 1 to 5 of father’s tender bundle;
(p)Exhibit P: G Contact Centre contact notes, pages 54 to 84 of father’s tender bundle;
(q)Exhibit Q: CAN and Fact Sheet, father’s tender bundle pages 86 to 90;
(r)Exhibit R: Family Report of Ms E dated 24 November 2023.
EVIDENCE
In determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact, the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. Evidence of the parties relevant to the Court’s determination will be considered either in this section, in the Family Report discussion, or whilst addressing the section 60CC considerations (i.e. section 60CC of the Family Law Act 1975 Cth (“the Act”)) (see below). In the event of any conflict between the evidence in this section and evidence referred to under the Court’s discussion under section 60CC, the latter evidence shall take precedence.
The father’s presentation during his oral evidence was of some concern. He often spoke in a voluble, rapid and pressured manner. He often sought to give evidence, supportive of his own case, which was not responsive to the question asked of him. Whilst he did on occasion make admissions against his interests, a significant part of his evidence was exculpatory of criticism of his past behaviour. Accordingly, the Court treats the father’s evidence with some caution where in conflict with the mother’s evidence.
The mother’s presentation during her oral evidence was quite satisfactory. The mother impressed the Court as a reliable and honest witness.
The father’s evidence
The Court does not propose to set out the entirety of the father’s affidavit and oral evidence.
The father has started the online Triple P Parenting Program.
Counsel for the ICL cross-examined the father in relation to the Family Report. The father stated he had read the Family Report. He stated he did not believe that the children made the statements to the Family Report writer set out in the Family Report. He stated that the Family Report writer had a motive and an intention to break the children’s relationship with him.
The father was cross-examined in relation to the supervised contact reports. The father stated they were biased and dishonest. He confirmed that he had sent email letters to the F Contact Centre asserting that one of the supervising officers had deliberately intended to damage his relationship with the children (see the email letters in Exhibit D).
The father’s attention was drawn to paragraph 123 of the Family Report wherein the Family Report writer stated, inter alia, that it was of most concern to the report writer that the father has been unable to alter his behaviour despite extensive assistance and education from the supervised centre. The father was asked whether he understood what the Family Report writer was stating in that paragraph, to which the father responded that the Family Report writer could say what she wanted and that he could say things about her.
The father denied the children were uncomfortable when he raised the topic of them sitting for selective school tests during supervised time at the F Contact Centre. The father’s attention was drawn to certain entries at page 52 of the ICL’s tender bundle in relation to supervised time at this centre on 16 September 2023 to which the father stated that they were all lies and that the supervisor had made false allegations against him. A short time later he conceded that certain entries were accurate. In relation to an entry stating that the eldest child became visibly uncomfortable multiple times throughout the session, for example, taking deep breaths during conversations with the father and fidgeting in her seat, the father stated that that was a lie.
It was put to the father that he has trouble if someone does not agree with him to which he responded in the negative.
It was suggested to the father that he might contribute to the conflict between the parties in the way he communicates, to which he responded in the negative.
The mother’s evidence
The Court does not propose to set out the entirety of the mother’s affidavit and oral evidence.
The mother was cross-examined by counsel for the father.
The mother was asked why, having proposed interim parenting orders in her response filed 22 August 2022 that the children have supervised time at a contact centre with the father, the mother, in her Amended Response filed 31 July 2024 had proposed that after an initial period of supervised time, the children spend unsupervised time with the father once a month at a shopping centre. The mother responded by stating that one of the main reasons was that at the last hearing the judge had said that supervised visits could not go on forever. She stated that she did not want to deprive the children of meeting the father if they wanted to.
The mother was then asked why she had today changed her proposals to accord with the ICL’s proposed final parenting orders, namely that the children spend time and communicate with the father in accordance with their wishes and only with the written consent of the mother. In response, the mother stated that whilst she was still hesitant about unsupervised visits, on the other hand she did not want the children to be deprived of meeting with the father. She stated she did not know if it was the right decision or not. She then referred to heeding the wishes of the children.
The mother stated she did see a benefit of the children having a relationship with the father. She stated that prospectively she was concerned about the children blaming her for stopping them seeing the father. She stated that she just wants the children to decide if they want to see the father.
The mother was asked what the benefit was of the children having a relationship with the father, to which she responded that the children have a father figure in their life. She again stated that she did not want the children to think that she stopped them (having a relationship with the father). She stated that she did not want to make that decision herself, and she stated that if the children want to meet with the father it should be their choice.
The mother stated that she did not know in the future whether the children would want to see the father.
It was put to the mother that she did not like the father, to which the mother responded that after what she had been through she has no hate for the father and that she has overcome such feelings. The mother’s attention was then drawn to a letter she sent to the G Contact Service on 15 December 2023 in which the mother had complained that the father had been harassing her friends again including with verbal abuse. The letter had referred to the father as a narcissist psychopath who only loves himself. It was put to the mother again that she does not like the father to which the mother responded that, “if it is regarding this, then yes.”
The mother was then asked was there anything good she could say about the father, to which she responded that the father was friendly with the children during the parties’ relationship, and that he was a good father having taken the children to parks and the seaside. She acknowledged that the children had enjoyed certain outdoor excursions with the father during their relationship. The mother stated that the father does love and care for the children and he wants the best for them; she stated that these were points in his favour.
Counsel for the father raised the mother’s asserted fear of the father, to which the mother responded that the father had assaulted her on a number of occasions.
It was put to the mother that the father denied assaulting her, to which the mother responded that she was aware of this. She stated that if the father does something to her the father always puts the blame on others. She stated that during arguments with the father the father was always blaming her. She stated the father never takes the blame on himself, and gave an example of the reason for the parties’ breakup; the father blamed others for it rather than his own abuse of the mother.
The mother was questioned in relation to parental responsibility. It was suggested to her that there was a parenting app that could censor abusive communications. The mother responded by stating that she didn’t want any communication with the father. She stated the father was verbally abusive, and that he abuses her friends when he obtains their numbers. She stated that she wants to be the decision-maker for the children.
The mother stated that the eldest child had had about 27 days of absences from school this year. She stated that if this child tells her that she does not want to go to school, the mother tries to find out why that is the case. She stated that she has meetings with school staff if, for example, the child is having difficulties with her friends. The mother stated that whatever phase this child was going through she was there to help. She referred to this child having counselling and that she was now making an effort to attend school regularly.
The mother’s attention was drawn to the children’s present supervised time with the father; two hours each fortnight at the contact centre. The mother stated that the children were not ready for unsupervised visits. She stated that they do not want to see the father unsupervised. Her attention was drawn to various supervised contact visits with the G Contact Service this year, yet the mother maintained that the children were not ready for unsupervised visits.
In re-examination, the mother stated that the father has a habit of trying to impose his wishes upon the children, for example the issue of selective schools. She stated in this context that the children tell her that the father is pressuring them. She stated that she does not want the children to feel pressured into being forced into something by the father.
Family Report
The author of the Family Report dated 24 November 2023 was Ms E, Regulation 7 Family Consultant. The Family Report writer interviewed the parties on 12 October 2023 and the children (including observations with each party) on 2 November 2023.
The Court does not propose to set out the entirety of the Family Report.
In paragraph 19, the Family Report writer noted that the mother proposed the children spend only supervised time with their father until they mature. (The Court interpolates at this point that in the mother’s Amended Response filed 31 July 2024 she proposed final parenting orders, inter alia, that starting after 14 December 2024 the children spend unsupervised time with the father once a month at Suburb J shopping centre on the second Sunday of each month from 12.00 pm to 2.00 pm.)
In paragraph 20 the Family Report writer stated:
20.[Mr Najar] was polite and respectful towards the report writer. He presented with some child-focus but minimal reflection. His answers to questions were not always on topic and at times had limited detail. He was observed to be disparaging of [Ms Bata].
In paragraphs 24 to 28 the Family Report writer stated:
24.Collateral information shows a message sent from [Mr Najar] to the mother which states "you are self-centred person and don't even care what the children want or wish nor do you ask them ...you are using the children for your own nefarious reasons".
25.[Ms Bata] was polite and respectful towards the report writer. She presented as mostly child focussed and reflective. Her answers were appropriate to the topic but at times contained limited detail.
26.When asked about the relationship [Ms Bata] said she only got to know [Mr Najar] after they began living together in Australia. She experienced him as "short-tempered'' and unable to control his emotions. She said she would return to [Country B] at times because it was difficult to live with [Mr Najar]. [Ms Bata] noted that final separation occurred due to [Mr Najar] being physically violent towards [X].
27.[Ms Bata] said she is not comfortable communicating directly with the father. She said she has blocked him on all platforms as she believes he is trying to control her, he tells her she is doing the wrong thing, and says she is "destroying" the children's future. [Ms Bata] said these interactions with [Mr Najar] make her feel upset.
28.[Ms Bata] believes that co-parenting with [Mr Najar] will be very difficult as he is controlling. She believes his behaviour will worsen over time and she does not want to experience family violence. She expressed she is not comfortable seeing or communicating at all with [Mr Najar]. She added that she does not trust the father after he was physically violent to [X].
In paragraph 29 the Family Report writer stated:
29.During the relationship, [Mr Najar] said he would become "irritated and annoyed" about finances as the mother "liked to spend". He said the parties both yelled at one another at times. He said [Ms Bata] claimed he pushed her which he denies, noting he was charged but the charge was later dismissed.
In paragraph 34 the Family Report writer stated:
34.[Ms Bata] described that [Mr Najar]'s perpetration of family violence escalated over time in frequency and severity. She reported feeling '"always fearful". She views that the situation was made worse because she was totally dependent on [Mr Najar] and thus did not report to Police. [Ms Bata] said that experiencing family violence impacted upon her mental health.
In paragraph 35 the Family Report writer stated:
35.[Mr Najar] denied any family violence has occurred post-separation. He denied he has ever been fearful of [Ms Bata].
In paragraphs 38 to 40 the Family Report writer stated:
38.[Ms Bata] said that in [mid]-2021 [Mr Najar] "screamed' at her in public and punched her friend's husband. She noted the children were present and witnessed the event. She said Police were involved due to this incident.
39.[Ms Bata] said that on 15 September 2023 [Mr Najar] attended her home uninvited and dropped off mobile phones for the children. She is worried the father may have tracking installed on the phones. She noted [Mr Najar] had previously attempted to give the children phones at their school and at the supervised centre, with both organisations declining his request.
40.[Ms Bata] said that several weeks ago [Mr Najar] and his associate attended her home uninvited with passport forms for the children. She said [Mr Najar]'s friend attempted to speak with her in relation to the children's schooling. [Ms Bata] said both adults left when she asked. She noted that [Mr Najar] continues to find out where she lives and then attended uninvited.
In paragraphs 43 and 44 the Family Report writer stated:
43.Court records show that a temporary protection order was in place from [early] 2021 until [late] 2022. Records also show that [Mr Najar] was charged but found not guilty of breaching the protection order and assaulting [X].
44.Court records show that in [mid]-2021 [Mr Najar] was charged with a breach of the protection order and 2 x assault when he approached [Ms Bata] and assaulted two other people. It is unclear whether he was found guilty of these offences.
In paragraph 46 the Family Report writer stated:
46.[Mr Najar] said that [Ms Bata] made a ''false allegation" that he punched [X] in the stomach, noting this allegation was dismissed in court. He denied this occurred, then said "have right to discipline my child'. He said he disciplines the children by telling them it is not right to do something but denied ever using physical means.
In paragraph 50 the Family Report writer stated:
50.Court records show that [X] stated to Police both during a visit at her school and formal interview that her father punched her once and pulled her shirt. During his interview with Police [Mr Najar] stated, ''I didn't punch her, I grabbed her shirt".
In paragraph 59 the Family Report writer stated:
59.[Ms Bata] reported that both children were initially anxious to attend supervised visits due to their experience of family violence. She believes the visits went ok, stating they were primarily attending to play with the activities rather than see their father. She noted that on one occasion [Y] said she did not want to attend again however continued to go. She said the children were fine after spending time with their father.
In paragraph 76 the Family Report writer stated:
76.[Ms Bata] does not believe that any unsupervised time should occur at the present time until the children are old enough to call the Police for help, however she does not know what age that might be. She does not consider that the children will be safe even if time occurs in a public place. [Ms Bata] is unsure whether phone or video calls between the children and their father should occur, stating that she is not comfortable with this and is unsure whether the children would be comfortable.
The children were interviewed by the Family Report writer:
82.The children described their father as "easily frustrated''. They discussed that their father continues to tell them that their school is "bad'' and talks about "tests and exams". The children asserted they like their school and do not wish to move, with [X] feeling "pushed'' to change schools.
83.The children continued that their father continues to find out where they live. They believe this as he tells them he knows, sends them letters, and brought over phones for them. The children feel "a bit scared'' about this.
84.[X] discussed that her father keeps sending her text messages about meeting the children at a shopping centre, leaving her school, and asking her to call him. She said her father alleges that the messages she sends him are not from her. She feels "uncomfy" with the messages she receives from her father.
85.When asked about the supervised visits both children said they enjoyed the games. They disliked that their father kept asking them about schools, noting that the supervisor asked their father to stop. The children said they wanted to play more so than interact with their father. [X] added that during a visit her father told the children he would consent to their passports but has not done so.
86.When asked about their parents' relationship the children said their parents "argued and fought lots". This was described as their father shouting at and lecturing their mother. The children said their father was physically violent towards their mother on a few occasions including throwing things, slapping, and shoving. The children described intervening at times when physical violence occurred, with [X] adding that on one occasion she was hit with an object that her father had thrown. The children asserted that they did not feel safe when violence was occurring and they often "huddled' in the corner saying "stop". They also felt worried about their mother being alone with their father.
…
88.The children described they felt "relieved' when their parents separated. They said their parents never got along.
89.The children believe their mother does not like to talk about their father but denied that denigration occurs. They said their father believes their mother is controlling them and what they say, and he talks about court, however the supervisor stopped him.
90.In the future, the children would like to "live with Mum in peace". They want to visit the maternal grandmother but remain living in Australia. They do not want to spend overnight time with their father as they do not feel safe or comfortable.
91.The children expressed feeling unsure and uncomfortable about spending unsupervised time with their father as they believe he would talk about school tests, selective high schools, or their mother, or court. The children asserted that they do not want to talk about these issues. The children said they would have phone contact with their father if he did not talk about these issues.
92.The children indicated they may refuse to attend visits with their father if they are not supervised. Both children asserted that their mother is supportive of them spending supervised time with their father, noting that she worries for their safety and [Mr Najar] hurting [X] again.
The children were observed with the father.
In paragraphs 93 to 104 the Family Report writer stated:
93.The children had expressed to the report writer that they did not want to see their father but agreed if the report writer remained present.
94.Upon collecting [Mr Najar] from the waiting room security advised that the father had attempted to approach the mother. [Mr Najar] then told the report writer that the mother had been sharing information with the children.
95.When [Mr Najar] entered the room, he greeted the children but neither responded to him. No affection was shared.
96.The children wished to play uno. [Mr Najar] joined, and the children appeared to enjoy the game and were laughing, however there was minimal communication with their father. [X] and [Y] were observed to sit close to one another.
97.[Mr Najar] then began speaking to the children about selective schools and tests. [Mr Najar] told the children to ask their mother to register with three schools, naming them to the children. Both children appeared to be uncomfortable and were saying "ok ok'' to their father. [Mr Najar] added that the selective schools are much better than the one they are attending, and they need to go to a better school so they can attend university. [Mr Najar] also told the children that he would pay for their schooling.
98.The report writer attempted to redirect [Mr Najar] to other topics on multiple occasions however he would return to discuss schooling.
99.The children then claimed that their father is not allowing them to have a passport, and [Mr Najar] told the children that this is not correct. The report writer redirected the topic.
100.[Mr Najar] then asked the children if they want to go to [Country B] with him for 1 month. The report writer redirected the topic. [Mr Najar] asked the children again and said he would book tickets.
101.The children then told their father to pay his child support faster. [Mr Najar] had an appropriate and child-focussed response and re-directed the conversation.
102.[Mr Najar] was observed to return to conversations the report writer redirected from, and the children were observed to continually ask about their passports. The children appeared to be clearly aware of the process to obtain a passport and believe their father is not consenting.
103.[Mr Najar] asked the children about school and their friends, and neither child answered him. The children showed the children videos of the holiday they previously had, which the children sat and watched, but shared minimal conversation with their father.
104.At the conclusion of the observation neither child said goodbye to their father and no affection was shared.
Under the heading Evaluation, the Family Report writer stated, inter alia:
113.It is important to give attention to particular factors in this matter which are associated with elevated risk, including that [Ms Bata] expresses significant fear of [Mr Najar]; [Mr Najar] does not appear to be changing his behaviour despite Police and court intervention; and if the mother's allegations are correct then at times the father has displayed disregard for her autonomy and safety, as well as a disregard for authority and potential consequences of his chosen behaviours.
114.Overall, it is considered that there is a risk family violence may occur in the future. It is suggested that structured court orders and no parental contact may assist in decreasing but not mitigate the risk.
116.Based upon their presentation during interview, [X] and [Y]'s recollections and description of their experience of family violence appear to be in their own words and not influenced by another person
117.It would appear that the children have been exposed to and experienced family violence in their home on multiple occasions. [X] and [Y]'s descriptions of incidents that they experienced in their home would have undoubtedly been frightening for them, and they were clearly distressed at times. Of great concern is that the children have felt the need to engage in protective behaviour of their mother due to family violence perpetrated by their father.
118.The mother demonstrated some insight and awareness into the potential impacts that experiencing family violence can cause to children. The father demonstrated limited insight or understanding into how each child may have been impacted.
At paragraphs 121 to 124 the Family Report writer stated:
121.Information suggests that the father has involved the children in adult issues to a significant degree and engaged in denigration of the mother. It is simply not appropriate for the father to be continually speaking to the children about their passports, documents, court, school selections and testing, and other issues.
122.This behaviour places the children 'in the middle' of their parents' dispute and can lead to a decline in the children's emotional wellbeing and relationships with each parent. It is also very clear from information obtained for the assessment that the children strongly dislike their father's behaviour, and it is having an acute impact upon them in that they do not wish to have contact with him unless another adult is present to intervene.
123.Of most concern to the report writer is that the father has been unable to alter his behaviour despite extensive assistance and education from the supervised centre. It was clear through the supervised notes and within his observation that the father does not appear to understand why or how speaking about these issues impacts the children. He seems to have limited emotional maturity in this area as he appeared unable to recognise the children's discomfort as informed by the supervision centre and noted by the report writer. Therefore, it appears he may have a compulsive need to continue to discuss these issues with the children regardless of their discomfort and explicitly being told not to.
124.Information also suggests that the mother has involved the children in adult issues, albeit to a lesser degree. This may be in the context of responding or reacting to things that [Mr Najar] has told the children which they have passed on to her. Regardless, it is important that the children do not continue to be placed in the middle of their parents' dispute and [Ms Najar] needs to focus on shielding the children from adult issues rather than attempting to explain her perception of issues. The report writer considers that with some education [Ms Bata] will have the capacity to refrain from sharing adult issues with the children.
At paragraph 126 the Family Report writer stated:
126.It appears that following separation the children have experienced a decline in their relationship with their father. Unfortunately, [Mr Najar] does not appear to understand why [X] and [Y] may be resisting spending time with him, and how his past and current behaviours are impacting them. Instead, he primarily blames the mother and assumes she must be denigrating him to them and engaging in 'alienating' behaviours. [Mr Najar] does not appear to have the emotional maturity needed to separate the children from the separation and adult issues. Thus, he is unable to shield the children from his negative views and perceptions about the mother and issues in dispute.
At paragraph 128 the Family Report writer stated:
128.[Mr Najar] presented a rather simplistic view about the co-parenting relationship which lacked substance or detail. His discussion was not reflective of the issues that have been identified in this matter. [Ms Bata] presented a view that was more consistent with her interview and affidavit information, and other information provided during these proceedings. Her discussion was more reflective about the issues in the matter and how an effective co-parenting relationship may be difficult to achieve.
At paragraphs 130 to 131 the Family Report writer stated:
130.The report writer considers it will likely be difficult for a healthy and effective co-parenting relationship or joint decision making to occur in the future and does not see how this could reasonably be achieved. If family violence has occurred to the extent the mother reports, then it is not reasonable to expect her to be able to assertively communicate or discuss issues with the father as she is likely to be focussed upon fear and attempted management of family violence behaviours. The report writer also has concerns that the father is quite focussed on what he believes is the right decision for the children and demonstrates limited capacity to compromise or consider other positions.
131.The report writer is also concerned about the co-parenting relationship being an avenue for family violence to occur in the future. Of most concern is if family violence did continue through this avenue, there would likely be significant personal impacts upon [Ms Bata] which may affect her parenting capacity and ability to be present with the children. If she operates and makes daily decisions based upon fear, then she may be less able to be a calm presence for the children and attuned to their needs.
At paragraph 135 to 140 the Family Report writer stated:
135.Despite 6 months of supervised visits, the children's relationship with their father does not appear to have improved; rather, it is possible that the relationship has further declined. The report writer views this is primarily due to the father's consistent discussion of adult issues and lack of attunement to the children's needs. The children's relationship with their father has been quite fractured and, whilst this can be repaired, it will take time, a rebuilding of trust, and no discussion of adult issues for this to be a possibility.
136.The children's views should be afforded reasonable weight. It did not appear that either child was being influenced by an adult as they spoke spontaneously throughout and were able to provide appropriate context and emotional responses to the issues they discussed. Further, the reasoning for their future wants appear to be reasonable considering their reported experiences and when noting the collateral information.
137.The report writer views that the children's wellbeing is being significantly impacted by the father's actions, including by exposing them to adult issues, conflict, family violence, and undermining the mother's parenting. The report writer views that it is unlikely the father will change this behaviour without substantial intervention and gaining insight.
138.The report writer has limited confidence that [Mr Najar] will support the children's relationship with their mother as he openly denigrated her during supervised visits it is clear throughout the material that he does not believe she can make adequate decisions about the children. The report writer has reasonable confidence that [Ms Bata] will support the children's relationship with their father if she believes they will be safe from physical and emotional harm and not exposed to ongoing adult issues.
139.At the current time, the report writer considers that the potential benefits of spending time with their father is outweighed by the negative impact upon the children's safety and wellbeing. The children are clearly uncomfortable and upset during the interactions they share with their father, and [Mr Najar] has been unable to change his behaviour despite significant intervention over 6 months. Further, the children may be at risk of experiencing family violence.
140.The report writer has reasonable confidence that if the children wanted to have phone contact or spend time with their father that the mother would facilitate this in a safe environment, such as a shopping centre or other public venue. The mother should positively support and encourage the children and continue to enquire with them as to whether they wish to see or speak to their father in a safe environment. The father should respect the children's positions at this point in time and reflect upon his behaviours and how he could interact with the children in a more child-focussed manner. The father should not place pressure on the children or mother for contact to occur.
The recommendations of the Family Report writer were as follows:
141. The mother have sole parental responsibility for the children.
142. The children live with the mother.
143. The children spend time and have contact with their father at their request.
144. The father complete a post-separation parenting program.
The Family Report writer gave oral evidence. The Court does not propose to set out the entirety of that evidence.
Counsel for the mother asked the Family Report writer questions relating to the ICL’s proposed orders and this evidence was given:
COUNSEL:So one of the things that the court, of course, is required to consider are arrangements that would promote the safety of the children. Of those two proposals, those two competing proposals that are before the court, you would say that the ICLs proposal is an arrangement that promotes the safety of the children; is that right?
WITNESS:I — I would say it promotes the wellbeing of the children. So if we’re putting wellbeing under — under safety then, yes.
COUNSEL:I only put it in that way to you because it’s consistent with your recommendations; is that right?
WITNESS:Yes.
COUNSEL:And can you just indicate to the court the distinction you draw between wellbeing and safety, if any?
WITNESS:Yes. I think there are a lot of — safety is like a very broad term. So I’m not — I’m not actually particularly worried about physical — the children’s physical safety. I’m not worried about any sexual abuse. I’m not worried that the father would deliberately harm them or put them in harm’s way. I think he would try his best to be a good parent, keep them safe, you know, give them appropriate food. All of those things I don’t — I don’t have concern about, particularly. But I would be concerned for their emotional wellbeing and — and that — and that can come under the umbrella of — of safety. So the wellbeing I’m looking at is emotional and psychological. So the children feeling safe emotionally. So comfortable, content. Feeling like they can be themselves. Not feeling pressured, not feeling anxious. So — so that is — that’s where I would be concerned for their safety.
The Court asked this question of the Family Report writer:
HIS HONOUR: Well, ma’am, just in light of that last answer you gave. What is your present view in relation to the father’s current proposal that Ms Bateman read to you a moment ago? Namely, that he spend time with the children each alternate weekend from 11 am on Saturday until 8 pm on Sunday? What’s your view about that proposal?
WITNESS:I don’t think it would be very effective at building the relationship with the children — further building the relationship based on — based on multiple things. Firstly, what they — their views were last year, and it was — it was some time ago, but their — their views were quite clear. Based on what I have — have read so far and — and heard about the contact centre notes that there are still some ongoing inappropriate conversations of adult issues. Potential — some — some could be seen as denigration. If that’s occurring still at a contact centre when you’re supervised after this long and after this many interventions and being spoken to and educated, I’m very, very concerned that the — the moment that there is not someone else present that these issues will just absolutely escalate. The children expressed concern about that very issue. And so, overall, I think the children would actually go — the relationship between the children and the father would fracture very quickly. And what is more likely to occur, I think, is that the children then refuse to attend. It starts impacting their relationship with their mum because mum says you need to go. You know, we have a court order or whatever. You have to go. So — and not to mention the children then every second weekend need to monitor themselves, their behaviour, might feel anxious, might feel uncomfortable. I — I can’t see that having a positive outcome. And we’re getting into teenage years soon which — well — well, [X] is a teenager and [Y] is — is two years off that, but it can become then difficult to reason with the teenager and — and force them, essentially, to go somewhere that they’re saying they don’t want to go to for what I see is are quite reasonable reasons there.
The Family Report writer gave this evidence relating to the father’s proposals regarding firstly changeover and secondly the safety of the mother:
WITNESS:What I’m more concerned about is some verbal and emotional abuse occurring on changeover. Maybe the father refusing to leave until the children come with him. Just general conflict that — that would be what I would be mostly concerned about for — for any in person parental interactions. And that — that’s about changeover. But a second part, I think, of your question, just in general terms of the father’s proposal and the safety of the mother. Again, I would be concerned about the emotional and psychological wellbeing of the mother. Just being concerned about how the children are coping when they are with their father and needing to prep them to go, needing to manage and settle the children after they return, needing to, obviously, monitor her own ability to shut down inappropriate adult conversations if they’ve occurred, which I — I suspect would occur. I’m concerned will occur. That’s what I would be worried about for the mother. Just needing to constantly be supporting her children through something that they may not want to do.
The Family Report writer gave this evidence relating to the father and the children:
COUNSEL:You’re concerned that the father has a vexatious approach in relation to matters that he — where he doesn’t get his own way. Do you accept that?
WITNESS:Yes.
COUNSEL:Okay. And in that vexatious approach the way in which it manifests itself is his persistence and obsessiveness about whatever it is that he is seeking. Do you accept that?
WITNESS:Yes.
COUNSEL:And do you accept that a lot of adults have had a great deal of difficulty trying to manage him and contain him?
WITNESS:Yes.
COUNSEL:And you do not anticipate that the children will have the same or greater capacity to manage him and his persistence or obsession? Would you agree about that?
WITNESS:I — if I’ve misunderstood the question, please let me know. But I’m not particularly worried about that for the children. What I’m worried about is that they will toe the line and agree and do what he wants during that time. Whereas the adults that we — I assume you’re referring to have — have disagreed with the father or have done something that he disagrees with.
COUNSEL:Right. The children will simply be overborne by him, won’t they?
WITNESS:Yes.
COUNSEL: And that is harmful to them psychologically; is that right?
WITNESS: Yes.
The Family Report writer gave this evidence in relation to the mother having to consult with the father relating to education issues:
COUNSEL:Because one of the options is that the mother while exercising sole parental responsibility be required to consult the father and her evidence was that she feels uncomfortable with that. I take it at the bottom of that discomfort would be this idea that he’s not going to accept anything that is contrary to his view?
WITNESS:I — I would agree. I think possibly health wise I don’t think anything jumped out at me in the Family Report, but I would — I would — I have read the Family Report, but I — I would — I’m happy to be — to be corrected on that. So I — I think the — the health and the religion were okay. Obviously, the travel is — is disputed somewhat. I think the biggest issue would be the education. And — and that, basically, any view other than the father’s wouldn’t be accepted and that’s it. Whereas I — I thought maybe in health a bit more flexible in terms of, you know, if the doctor said a child needed this then he would probably be fine with that but the education was the — the biggest factor that jumped out. And — and I think obsessive would be an appropriate word to describe what I observed and read in the material.
As to the acquisition of insight by the father the Family Report writer gave this evidence:
WITNESS:I would be looking for some reflection on — on, you know, specific incidences or behaviours that occurred and — and what he could have done differently or better at those moments. And not just saying, I accept I shouldn’t have done that, but actually some insight into maybe why or — or a potential impact of it, or I can understand that this person may have felt this way. I can understand why A caused B. This is what I will do differently in the future. So for me it goes beyond just maybe an acknowledgement of that was not the right thing to do because we can all acknowledge that, but unless we have insight and reflection change is not likely to occur.
As to the wishes of the children the Family Report writer gave this evidence:
COUNSEL:And, in that sense, their ages are relevant, aren’t they? Given that [X] is what 13 and a half, she’s nearly 14?
WITNESS:Yes.
COUNSEL:---and [Y] is getting close to 12 it is important, is it not, that their wishes are considered?
WITNESS:Yes. And — and, look, I — as we’ve — as we’ve spoken about, always consider the context. I think it is important for these girls that their wishes are considered because I — I just see further decline in the relationship if their wishes aren’t considered. Particularly when we’re thinking about children who have been engaged in a contact centre for, you know, what — so January to August this year plus six months last year, so we’re looking at more than 12 months. Not concurrent I understand, but---
COUNSEL: Yes?
WITNESS:Sorry. Not — not consecutive, sorry, but that’s a significant time that they’ve done what they’ve been asked to despite them not really wanting to. I think if we continue to ask them to do things that they’re expressing they don’t want to it’s just going to have a further negative impact on that relationship rather than them being able to relax---
COUNSEL:Yes?
WITNESS:---and say, okay, I’m not being forced now and — and I can take a breather, and — and then they’re much more likely in the future to want to have that relationship.
The Family Report writer gave this evidence relating to the emails sent from the father to the Family Report writer (Exhibits E to I):
COUNSEL:And you’ve provided those. They’ve been tendered. Does the tone of those emails fit with the concern that you report from one of the supervisors saying where the father is — she felt the father was personally targeting, I think, extremely disgruntled, quite threatening and targeting her personally? Is that the sort of tone of the emails in your — that — how you receive them?
WITNESS:Yes. I — I didn’t find them threatening, but disgruntled, and — and a — a — a personal attack on me, but, also, I think, an — an inability to — to follow — it’s not an — an order, but to follow what the rules are and to follow what a — a professional is saying. And I — and I’m not saying that as a — I just don’t want to talk to you anymore as a client. I’m saying that as I’m not permitted to speak to clients, as you will know, after a — a report is released. So just an — an inability or incapacity or — or refusal to — to follow those rules that are in place. And — and that’s what I saw then at the contact centre. Whether it’s an inability, incapacity or pure refusal to follow the — the contract. But what’s more is that it’s — it’s not just them saying it. It’s actually for the best interests of the children and — and still won’t — won’t follow that. Also, what gives me some concern about if there were future orders in place for regular spend time arrangements what that might look like. Is the father going to follow a court order? I’m not sure, but these things are — are just suggestions that we — then is some issue with authority or anyone that doesn’t agree.
COUNSEL: Perhaps, some difficulty containing?
WITNESS: Yes.
COUNSEL: And emotional regulation?
WITNESS: Yes.
COUNSEL:And that might speak to a lack of — or difficulty with boundaries as well?
WITNESS:Yes.
COUNSEL:And that’s — that can be very problematic in terms of parenting capacity, can’t it?
WITNESS:Parenting capacity and — and co-parenting capacity are quite problematic.
The Court accepts the evidence of the Family Report writer, subject to any view of the Court to the contrary, whether express or implied, as discussed below in relation to s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
RELEVANT LEGAL PRINCIPLES
Section 60B of the Act sets out the objects of Part VII of the Act which are to ensure that the best interests of a child are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
The Court must have regard to the factors outlined in section 60CC of the Act before determining what is in the child’s best interests. The matters to consider are set out in subsection (2) of section 60CC and, if the child is an Aboriginal or Torres Strait Islander child, the Court must have regard to the matters set out in subsection (3).
The Court, or any other person cannot require the child to express his or her views in relation to any matter: section 60CE. Although, the Court can have regard to any views that are expressed by a child where such views are contained in a report given to the court: section 60CD(2)(a).
When making a parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child the Court may provide for joint or sole decision-making in relation to all or specified major long-term issues: section 61D(3).
The Court has to consider each statutory matter in section 60CC, even if express discussion is not necessary (Jollie & Dysart [2014] FamCAFC 149 at [49]; Banks & Banks (2015) FLC 93‑637 at [49]; Tibb v Sheean (2018) 58 Fam LR 351 at [83]–[85]). Accordingly, the Court will discuss each factor to the extent necessary, having regard to all considerations.
The best interests of the children
Section 60CC considerations
(2)(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child)
(2A)(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child)
(2A)(b) any family violence order that applies or has applied to the child or a member of the child’s family
(2)(b) any views expressed by the child
The above considerations shall be considered together.
Family violence, conflict, and family violence orders
The parties’ relationship became quite conflictual, in particular by reason of disagreements relating to finances. By about 2018 they were arguing reasonably frequently. For example, they had a heated argument in mid-2018 resulting in the mother calling the police to attend which occurred; on that occasion the mother had wanted police assistance to help speak with the father.
One theme that arose in arguments between the parties was the father’s concern that the mother did not want to obtain employment in circumstances where the father was experiencing financial strain. During arguments with the mother, the father on occasion had lost his temper and would become extremely agitated, angry and volatile. On occasion, he was verbally aggressive towards her, including being verbally abusive towards her. On one occasion, the father, in fit of rage, threw his plate at a wall within the home. The children were often exposed to these arguments including the father’s fits of anger and became scared.
In mid-2020 the father threw an object at the mother which landed on her shoulder. In mid‑2020 the parties had a verbal argument and the father, a short time later, grabbed the mother by one arm and placed his other arm on her shoulder/upper arm. He was charged with offences by the police and they issued a provisional ADVO against him. The father pleaded guilty to the charges, and the sentence was a conditional release order without conviction for 12 months. An ADVO was made for two years in late 2020.
In early 2021 the father was charged with having the punched the eldest child. There were no injuries. The child told the police that she was punched and her shirt was pulled by the father. The father gave a recorded interview to the police in which he denied the allegation stating that he did not punch the child but grabbed her shirt. An interim ADVO was made in 2021 for the protection of the mother and children. In late 2022, the father having pleaded not guilty, the assault charge and the ADVO were dismissed after a hearing. The Court is not satisfied on the balance of probabilities that the father assaulted the child.
In mid-2021, the father and a Mr K got into a verbal argument at M Shopping Centre which developed into a melee. At one point the father slapped the man, and later the police charged the father with two charges. The children had been present and had become scared. The father appealed the charges to court and having viewed the video of the incident, the court affirmed the convictions but reduced the community corrections order. An appeal in relation to a prior ADVO made in relation to the incident was withdrawn and dismissed. The father asserts, in relation to the incident, that he was fearful and acted rashly. He admits that his slapping actions were excessive and inappropriate. He asserts his belief that he should have assessed the situation more calmly.
The Court finds that the father did impose restrictions upon the mother’s use of credit card purchases during their relationship, and in this context the Court accepts the mother’s evidence. It is likely that the father behaved in this manner because he perceived that he was experiencing financial strain.
The father, after the Family Report was published, sent written correspondence to the Family Report writer and unreasonably accused her of lying and making false statements in her Family Report, which accusations the Court rejects. The father had sent written correspondence to the F Contact Centre and unreasonably accused one of the supervision officers of deliberately trying to damage his relationship with the children. The father, during, in particular, the F Contact Centre visits, often failed to heed the advice given to him by supervision staff relating to the content of his interactions with the children during such visits.
The father had made a report to the police in late 2021 in relation to a person having allegedly committed a break and enter of his residence in early 2021 and stolen items. The Court observes that the father, in his affidavit, alleged that the mother had taken items from his residence on about this date. The father was very hostile and aggressive with police over the phone on about late 2021 after the police had provided certain information to him in relation to their investigations “by shouting over what was trying to be explained to the point where the phone call had to be terminated (by the police)”.
The above discussed adverse behaviour by the father suggests that he has significant difficulty in appropriately adjusting his behaviour to comply with the rules of established institutions, and it suggests an unwillingness of the father to heed reasonable criticism of his behaviour by others or compromise his views to the views of others.
The father lacks adequate insight into the harmful effects upon the children and the mother in relation to the above found family violence and adverse behaviour by him (where committed in their presence). He denies having acted aggressively towards the mother during verbal arguments and denies verbally abusing her. The father is not sufficiently attuned to the children’s emotional wellbeing and lacks emotional maturity in this regard; in particular, he lacks insight into the harmful emotional effects upon the children of being exposed to the parties’ past significant conflict, as discussed above, and lacks insight into the discomfort the children experience when the father seeks to discuss certain issues with them, such as schooling or the mother.
Views expressed by the children
The Court refers to the children’s views in relation to the father expressed to the Family Report writer on 2 November 2023. The Court also refers to those views of the children in relation to the father expressed to the mother (see the Court’s recitation of aspects of the mother’s evidence, above).
The Court finds that the children continue to be resistant to spending unsupervised time with the father, including overnight time with him; they are apprehensive and fearful of being exposed to the father’s frustration and anger, or possibly experiencing physical harm from him. They are also apprehensive that the father will talk to them about school tests and selective schools (involving a change of schools), or about the mother, if spending unsupervised time with him; the father, for example, has sought to discuss such educational matters with the children during supervised time.
To a significant degree, this fear and anxiety is born out of their personal experiences of being exposed to the father’s adverse behaviour, discussed above.
On the balance of probabilities, the Court does not accept that the mother, post separation, has deliberately sought to coach the children to hold significant negative views about the father including being fearful of him. In this context, the Court takes into account, inter alia, the children’s personal experiences of being exposed to the father’s adverse behaviour, discussed above.
In the above circumstances, the Court would attach significant weight to the children’s views.
The Court is of the view that the children’s safety, in particular from an emotional or psychological perspective, in relation to spending time with the father, will be best ensured by making orders as proposed by the ICL, including that the children spend time and communicate with the father in accordance with their wishes and only with the written consent of the mother.
The father, belatedly during final oral submissions, informed the Court that he would accept a restraint on not discussing selective schools and examinations for selective schools with the children should he be spending time with them. Respectfully, the Court has no confidence that the father would consistently obey such a restraint, and in this regard the Court refers to its discussions relating to the father above.
Such proposed orders of the ICL adequately recognise the views of the children, and in this regard the Court refers to the evidence of the Family Report writer. The Court is confident that the mother will facilitate the children spending time with the father should the children express a wish to spend time with him; the Court accepts her oral evidence to the effect that should the children express a wish to spend time with the father then she will facilitate time occurring, for example, at a shopping centre, and that should such time progress satisfactorily (particularly in terms of the father’s behaviour), that time might occur at, for example, a park. These views of the Court are consistent with the evidence, including recommendations, of the Family Report writer.
The Court has considered whether it should make specific orders that the children spend some form of unsupervised time with the father, including both possible day time and overnight time. However, the making of such orders would not recognise the present views of the children, as discussed above, and the Court has no confidence that the father, lacking emotional maturity as he does, would relate and communicate with the children in a child focused manner, or without inappropriately discussing, for example, schooling issues with the children or discussing the mother in a negative fashion. And further, the Court has no confidence that the father would consistently permit the children to express their own views relating to matters arising in their day-to-day lives; the children would likely anticipate adverse behaviour from the father should they seek to express a different view to that of the father and they would simply “toe the line” and agree to do what the father wanted. As discussed by the Family Report writer, this would be emotionally harmful to the children.
As to the children continuing to spend supervised time with the father, the Court refers to legal authority (see, for example, Gorman & Huffman and Anor [2016] FamCAFC 174 at [290] to [301]; Betros & Betros [2017] FamCAFC 90 at [13]) that indefinite supervision is generally undesirable and often carries practical difficulties; inter alia, the supervision environment (here a Contact Centre) limits the ability of the children to significantly develop a meaningful relationship with the supervised parent. Further in this case, there is no evidence that a Contact Centre would provide long term supervision. It will not be in the children’s best interests to make an order for the continuation of supervised time.
In any event, in this case, should the Court make the ICL’s proposed orders relating to the children spending time with the father in accordance with their wishes, there is some real prospect that the children will, in due course, express to the mother a wish to spend some form of time with the father, to which the mother will likely facilitate in a child focussed way, because the children appear to have spent some positive supervised time with the father in 2024, and there has been some warming of their relationship with him during such time.
(2)(c) the developmental, psychological, emotional and cultural needs of the child;
The Court refers to the evidence of the Family Report writer in relation to these needs.
The children are progressing well in the mother’s care with the Court observing that the mother has been the children’s primary carer since birth to date.
The Court refers to its discussions above in relation to the father’s lack of sufficient insight into the emotional needs and wellbeing of the children.
(2)(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
The Court finds that the mother has such capacities.
Again, the father is not sufficiently attuned to the children’s emotional wellbeing and lacks emotional maturity in this regard. And the Court refers to its discussions above, in relation to the father, under “Family violence, conflict, and family violence orders”, and “Views expressed by the children”. Otherwise, the father has such capacities.
(2)(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
The children have a meaningful relationship with the mother. The children’s primary attachment is to the mother. The children will benefit from the continuance of that relationship.
The children’s former meaningful relationship with the father has deteriorated to a significant extent by reason of, inter alia, their personal experiences in witnessing adverse behaviour by the father during the parties’ relationship, being exposed to the parties’ significant conflict during their relationship, and being exposed to unwanted verbal behaviour by the father during supervised visitation, discussed above.
The Court recognises that the children’s supervised time spent with the father this year at the G Contact Centre appears to have been positive (and see the Court’s discussion above as to such time). However, the reports from that centre between 27 January 2024 and 10 August 2024 nevertheless revealed the father, inter alia, providing information to the youngest child regarding a selective school test, asking the youngest child if the mother had helped her with a maths practice test, and asking probing questions of the children as to aspects of their home life. The reports indicated that there was an absence of any physical affection shown by the children towards the father (with the Court observing that the children and the mother showed mutual physical affection at the Family Report interviews). The reports did not clearly reveal that the children were consistently comfortable, relaxed, and spontaneous, in their interactions with the father.
Should the father develop adequate insight into the harmful effects upon the children and the mother of such above discussed adverse behaviour by him, and develop adequate emotional maturity so as to be significantly attuned to the children’s emotional needs, then the children may benefit from further developing their relationship with the father through spending time with him.
(2)(f) anything else that is relevant to the particular circumstances of the child.
Not applicable.
Parental responsibility
The parties do not communicate with each other to any significant extent in relation to the children. There is significant mistrust of the parties towards each other, particularly in relation to the children. The mother is adamant that she does not want to communicate with the father; the mother remains adversely affected by the father’s previous family violence and adverse behaviour, and in relation to which the father lacks adequate insight. The Court has no confidence that these parties could reach agreement in relation to major long-term decisions to be made for the children in a timely fashion and without conflict.
In this context, should the parties be required to reach agreement in relation to major long-term decisions to be made for the children, the father’s personality is such that he would likely seek to overbear the mother with his own views (in particular, his strong views relating to the children’s education) and the mother would be effectively unable to meaningfully contribute to a major long-term decision to be made for the children.
It will be in the best interests of the children that the mother have sole decision-making power for major long-term decisions to be made for the children. It will not be in the best interests of the children that the mother be required to first consult with the father and seek his views, and then consider them, in relation to a major long-term decision to be made for the children, because it is likely that the father during the consultation process will, again, seek to overbear the mother with his own views, resulting in the mother experiencing significant stress and anxiety with the real potential for the mother to experience a resultant diminution of her parenting capacity.
The father seeks an order (his proposed Order 10) that each parent be entitled to communicate with the children’s school and receive correspondence from such school. It will not be in the best interests of the children to make such order because the children, in their intake assessment with the G Contact Service on 24 January 2024, stated that they were nervous about the father taking information about them and publishing the information. They also expressed concern that the father may find out where they live and come to their home (with the Court acknowledging that the father presently knows of their address, however it is possible that the mother and children may change their residence).
As to the father’s proposed Order 11, regarding, inter alia, the children’s treating health professionals communicating to each parent about the condition and treatment of the children, it will not be in the best interests of the children to make such an order because, again, the children were nervous about the father taking information about them and publishing the information. The Court is reasonably confident that should the children experience any significant health issues or hospitalisation that the mother will contact the father appropriately, and the Court will make an order requiring the mother to do so, it being in the children’s best interests to make such order.
As to the father’s proposed Order 12, regarding each parent being entitled to attend the children’s events, it will not be in the best interests of the children to make such an order because it is inconsistent with the Court’s proposed order that the children spend time and communicate with the father in accordance with their wishes (and see the Court’s discussions earlier in these Reasons as to that proposed order of the Court); the Court has no confidence that the father would attend such events and not seek to spend time with or communicate with the children.
As to the father’s proposed Order 13, regarding each parent keeping the other parent informed of, inter alia, their addresses, injury or illness of the children or the identity of their school, it will not be in the best interests of the children to make such Order having regard to the Court’s reasons above for not making the father’s proposed Orders 10 to 12.
It will not be in the best interests of the children to make the father’s proposed Order 14 relating to visitation of the children in hospital because it is inconsistent with the Court’s proposed Order relating to the children spending time with the father in accordance with their wishes and only with the written consent of the mother.
The ICL sought a specific s 68B injunction against the father in relation to him contacting the children or the mother, attending upon the children’s schools, and attending the children’s residence unless invited to do so in writing by the mother. It will be appropriate to make such injunctive orders under section 68B in relation to the welfare of the children having regard to the Court’s reasons above for not making the father’s proposed Orders 10 to 14.
The ICL sought costs against the father who opposed such an order. It will not be just to make such an order in view of the father’s modest financial circumstances.
SUMMARY
Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view that it will be in the best interests of the children to make the following final parenting orders:
1.All previous parenting orders are hereby discharged.
2.The mother have sole parental responsibility for making the major long-term decisions for the children X born in 2011, and Y born in 2013 (“the children”).
3.The children live with the mother.
4.The children spend time and communicate with the father in accordance with their wishes and only with the written consent of the mother.
5.Within 48 hours the father is to provide to the mother, by way of her solicitors, an email address at which he can be contacted for the purposes of Orders 6 and 7 herein.
6.Should the children express a wish to spend time or communicate with the father, and should the mother consent to such time or communication, the mother shall contact the father by email to arrange for such time or communication to occur.
7.The mother shall notify the father of any serious medical issue or hospitalisation that either of the children suffer from as soon as is reasonably practical to do so and shall include the diagnosis, prognosis and all reasonable updates by email.
8.Both parents are hereby restrained from speaking to the children about these proceedings or showing the children any document in relation to these proceedings.
9.Both parents are hereby restrained from speaking about the other parent, the other parent’s family or a member of the other parent’s household in a derogatory or negative manner in the presence or hearing of the children and shall remove the children from the presence or hearing of any third party seeking to do so.
10.Pursuant to s 68B of the Family Law Act 1975 (Cth) the father, Mr Najar, is restrained by injunction from:
(a)contacting the children or mother directly or through third parties other than legal representatives;
(b)approaching or attending upon the children’s schools;
(c)attending the children’s residence unless invited to do so in writing by the mother.
11.The Australian Federal Police be directed to remove the names of the children X born in 2011 and Y born in 2013 from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
12.For the purposes of s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the children X born in 2011 and Y born in 2013 are permitted to have an Australian Passport and the mother is hereby permitted to apply for an Australian Passport for the children X born in 2011 and Y born in 2013 without the consent of the father.
13.For the purposes of s 65Y of the Family Law Act 1975 (Cth), the mother is permitted to take the children X born in 2011 and Y born in 2013 from the Commonwealth of Australia without the consent of the father.
14.The ICL’s application for costs against the father is dismissed.
15.The ICL’s appointment is discharged.
I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 27 September 2024
0
2
1