NASSER & HAKIMI

FAMILY COURT OF AUSTRALIA

NASSER & HAKIMI

[2021] FamCA 5

FAMILY LAW – CHILDREN – Parenting orders and international relocation – Where the mother is from a European country and has lived in Australia for 12 years – Where the mother seeks to establish residence for the three subject children with her in Europe – Where the father has suffered from mental illness which is has been stabilised by psychiatric therapy and medication – Where the father has perpetrated family violence on the mother – Where the children have been exposed to family violence – Where the children presently have no contact with the father or paternal grandmother – Where a move to Europe would result in the children losing all contact with the father and his family – Where the mother has a history of not complying with orders – Relocation not permitted – Ordered the children to live with the mother and initially spend periods of supervised time with the father, then to increasing unsupervised periods of time culminating in extended weekends and holidays – Where the paternal grandmother and extended family can spend time with the children by arrangement with the father during his time with them.

Family Law Act 1975 (Cth) ss 60CC, 61DA
Australian Passports Act 2005 s 11(1)(b)

APPLICANT:

Mr Nasser

RESPONDENT:

Ms Hakimi

INTERVENOR:

Ms Nasser

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW – Newcastle Family Law

FILE NUMBER:

SYC

5345

2018

DATE DELIVERED:

19 January 2021

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

19-21 October 2020; 17 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Duane

SOLICITOR FOR THE APPLICANT:

Delaney Roberts Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Bithrey

SOLICITOR FOR THE RESPONDENT:

Ryan & Seton Lawyers

SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW – Newcastle Family Law

Orders

That all prior parenting orders in relation to X born … 2009, Y born … 2012 and Z born … 2016 (“the children”) made in this Court and in the Federal Circuit Court of Australia are discharged.

Residence

That the children live with the mother.
The mother is restrained from establishing residence for the children in any country including Country B other than the Commonwealth of Australia.

Parental responsibility

That the mother have sole parental responsibility for decisions about the long term welfare of the children including, but not limited to, education and specialist medical attention.
That the mother have parental responsibility for decisions about the day to day welfare of the children when they are living with her.
That the father have parental responsibility for decisions about the day to day welfare of the children when they are spending time with him.
Each parent is to inform the other parent as soon as practicable if any of the children are hospitalised or have an illness or accident requiring medical attention whilst in the care of a parent NOTING that it will be sufficient compliance with this order if the mother notifies the paternal grandmother of such an event.
Each parent shall notify the other in writing of any change to address and contact details (including mobile telephone number and email address) within 48 hours of the change.

Time and Communication

That the children spend time with the father as follows:
9.1Over a period of 12 weeks commencing forthwith supervised by C Services on one day each week for the maximum time C Services can offer but for a minimum of 4 hours if at all possible on a day and at a time as agreed between the father and mother in accordance with the availability of C Services supervisors or, failing such agreement, shall occur on a day and at a time as nominated by C Services in writing to the father and mother:
9.1.1Within 7 days from the date of these orders, the father and mother must contact C Services to make arrangements for the children to spend supervised time with the father through C Services, including participating in all necessary intake processes, attending all necessary appointments and providing all necessary information and consents to enable the intake process to occur as soon as possible;
9.1.2The mother must facilitate the children’s attendance at all appointments required and/or recommended by C Services associated with the intake process;
9.1.3The Second Respondent (“the paternal grandmother”) be at liberty to attend any visits through C Services to spend time with the children when they are spending time with the father pursuant to these orders;
9.1.4The children can spend any additional supervised time with the father and paternal grandmother as agreed between the parties in writing and in accordance with C Services’s availability;
9.1.5The mother is to do all things necessary to facilitate the attendance of all 3 children at all visits scheduled through C Services in accordance with these orders;
9.1.6The father is to meet all costs associated with the children spending time with him and/or the paternal grandmother through C Services.
9.2Thereafter from May 2021 until November 2021, the children are to spend time with the father as follows and at other and alternative times as agreed:
9.2.1In each alternate week from the conclusion of school on Wednesday until 8.00 pm; commencing 5 May 2012;
9.2.2On each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday commencing 15 May 2021.
9.3Thereafter from November 2021 until commencement of Term 1 in 2023:
9.3.1For two weeks commencing 12 noon on the first Saturday of January 2022 and concluding two weeks later at 12 noon on Saturday;
9.3.2During school terms:
9.3.2.1Each alternate week from the conclusion of school on Friday until the commencement of school on the Monday next following commencing the first Friday of each school term in even numbered years and the second Friday of each school term in odd numbered years;
9.3.2.2Every Wednesday from the conclusion of school until 8.00 pm;
9.3.3For half of the school holiday periods that occur at the conclusion of Terms 1, 2 and 3 as follows:
9.3.3.1In even numbered years from 3.00 pm on the last day of the preceding term until 3.00 pm on the Saturday that falls during the middle of such period;
9.3.3.2In odd numbered years from 3.00 pm on the Saturday that falls during the middle of such period until 9.00 am on the first day of school for the following term;
9.3.4For two weeks commencing 3.00 pm on 24 December 2022 and concluding two weeks later;
9.3.5On Father’s Day in each year, if the children are not already spending time with the father, from 6.00 pm the day before Father’s Day until 6.00 pm Father’s Day.
9.4Commencing at the beginning of the first school term in 2023 and thereafter:
9.4.1During school terms, each alternate week from the conclusion of school on Thursday until the commencement of school on the Monday next following commencing the first Thursday of each school term in even numbered years and the second Thursday of each school term in odd numbered years;
9.4.2For half of the school holiday periods that occur at the conclusion of Terms 1, 2, 3 and 4 as follows:
9.4.2.1In even numbered years from 3.00 pm on the last day of the preceding term until 3.00 pm on Saturday that falls during the middle of such period; and
9.4.2.2In odd numbered years from 3.00 pm on the Saturday that falls during the middle of such period until 9.00 am on the first day of school for the following term.
On Father’s Day in each year, if the children are not already spending time with the father, from 6.00 pm the day before Father’s Day until 6.00 pm Father’s Day.
That the time spent with the father is suspended on the weekend of Mother’s Day from 6.00 pm on the day prior for the balance of the period.

Overseas travel for holidays

At such time as it is possible for the mother to travel to Country B with the children WITHOUT the necessity to enter quarantine in Australia or in Country B the mother may travel with the children to Country B for a holiday of up to 4 weeks on one occasion in each calendar year PROVIDED she notifies the father in advance of:
(a) Her intention to travel;
(b) The travel dates of departure and return;
(c)Flight details for the return trip (including copies of return tickets for the children);
(d)Her contact details in Country B including a mobile telephone number and one physical address.
For the purposes of s 11(1)(b) of the Australian Passports Act 2005 the mother is permitted to obtain Australian travel documents (including passports) for each of the children.

Restraints

Each of the parents is restrained from speaking about the other parent and all members of the extended family of that parent in a critical and/or disparaging way in the presence of the children or any of them AND FURTHER shall remove the children from the presence of any third person speaking in that way.

Provision of orders and reasons

The father has leave to provide a copy of these orders and reasons for judgment to his treating psychiatrist Dr D and also to his psychologist Ms E if recommended to do so by Dr D.

The Independent Children’s Lawyer (“ICL”)

The ICL shall meet with the children as soon as practicable but in any event within 28 days of these orders to explain the orders to the children and answer any relevant questions they may have.
To that end the mother shall ensure that the children are made available at a mutually convenient time and place arranged by the ICL.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nasser & Hakimi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: SYC 5345 of 2018

Mr Nasser

Applicant

And

Ms Hakimi

First Respondent

And

Ms Nasser
Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These are competing applications for parenting orders concerning three children, X, Y and Z (“the children”) aged 11, eight and four years respectively.
The parents met in early 2008 when the mother was working and travelling in Australia. The relationship between them developed quickly. By late 2008 the mother was pregnant with the parties’ first child. When her visa expired the mother returned to her country of birth, Country B.
In April 2009 the father travelled to Country B and in 2009 the parties were married there. The first subject child was born three months later.
In November 2009 the parties and child returned to live in Australia and to living in Newcastle. They separated for the first time about twelve months later.
In 2012 the second subject child was born. The parties moved from Newcastle to Sydney at the request of the mother in order to be closer to the paternal grandparents. The parties lived apart for twelve months but had reconciled by the end of 2015.
In early 2016 the youngest subject child was born.
The parties separated for the final time in September 2017.
The children have lived with the mother since separation. They have not spent time nor communicated with the father or paternal grandmother for three years despite two sets of interim orders, the second made by consent, for supervised time to occur.
The mother very much wants to return to live in Country B with the children.

The Parties

The Applicant Father – Mr Nasser

The applicant father is aged 44 years. He has been a small business owner and property developer, building five townhouses on a block of land in Newcastle of which he has retained two.
The father has been diagnosed with depression and anxiety in 2006 and Bipolar Disorder Type II in 2017. He takes medication and presently sees a psychologist and a psychiatrist. The evidence of his psychiatrist is that the father is presently stable in terms of his mental health.
The father presently lives alone in a western suburb of Sydney.

The First Respondent Mother – Ms Hakimi

The first respondent mother is currently aged 35 years. She is not in paid employment and is a parent and homemaker. She lives in the J Region of NSW.
Her household consists of herself and the three subject children.

The Second Respondent Grandmother – Ms Nasser

The paternal grandmother is currently aged 66 years. She is retired. She lives in a western suburb of Sydney, NSW.
She has five now adult children, the father being the eldest of them.
The paternal grandmother has Type 2 Diabetes and coronary heart disease. She suffered a heart attack in 2018 and had quadruple heart bypass surgery. She underwent a hip replacement. She has diminished eyesight, disqualifying her since 2012 from holding a driver’s licence.

The Trial

The trial was listed for 3 days commencing 14 October 2020, but commenced in fact on 19 October 2020.
The father and mother were represented by solicitor and counsel. The mother was assisted by a B Language interpreter.
The third respondent paternal grandmother represented herself.
The Independent Children’s Lawyer (“ICL”) had briefed a solicitor advocate.
Despite the best efforts of the legal practitioners the trial did not conclude within three days. A further day, 17 November 2020 was allocated and the trial finished on that day. Judgment was reserved.

The issues

Should the mother be permitted to establish a residence for the children with her in Country B?

There was no evidence from any member of the mother’s family about support or assistance. The mother asserted that she would live in the town, just north of L City, where her parents and other maternal family members live. She did not articulate how she would support herself before obtaining employment.
The evidence of the mother was directed to how things had gone wrong in the parties’ marriage and why she wanted to leave Australia. A clear picture did not emerge of how the future would look for the children, where they would go to school, where they would live and who would be part of their lives.
There was no information about how the mother intended to explain her decision to the children or why they were not to see the paternal family again.
The maternal grandparents and other family members did visit the parties in Australia on occasions. There was no evidence from the maternal family. The Court was unable to come to a conclusion about the attitude which family and friends in Country B would have towards the children’s father and extended paternal family if the mother returned to live with the children in Country B.

If so, what time and communication could there be for the father and grandmother in either or both countries, Australia and Country B?

The mother has not complied with orders made for the children to spend supervised time with the father. She twice agreed to supervised time. There has been none.
The mother considered that the children did not want to see their father and grandmother and that even if one or more of them did it was not in their best interests to do so. The mother was unwilling to comply with her obligations in the orders.
As a result I am confident that if the mother was living in Country B she would not comply with orders which provided for face to face time in either country nor orders for communication.
The mother stated and repeated that she and the children were victims of the father and that the children were fearful of him.
The mother herself had been physically assaulted and rudely treated at times by the father. The children had been exposed to verbal and physical encounters between the parents. They saw the father slap the mother’s face.
The relationship between the parents was unstable characterised by separations and conflict. The mother sometimes felt homesick.
The father has suffered from mental illness, slowly brought under control by psychiatric therapy and effective medication. That positive change came too late to restore the parties’ relationship. Trust had evaporated.
The children however loved both parents and wanted them to get on better.
The eldest child stated to the family consultant that the father had “tricked the mother into coming to Australia.” Since this opinion cannot have been drawn from personal knowledge the child must have adopted what the mother has told her. The statement cannot be true in any event. The mother arrived in Australia in 2008 on a working holiday and met the father here.
It is inevitable in my view that the children would quickly come to accept that the reason they had moved countries was to get away from the father who was a “bad person”. It is equally inevitable that the two older children who have remained willing to see the father would lose interest in doing so and gradually forget about him.

If the children remain living in Australia what time and communication should they have with the father and paternal grandmother?

The children prior to separation had good relationships with the father, adversely affected by the bitter arguments and physical violence between the parents which the children were exposed to.
The oldest child left letters for her father tucked away in her bedroom[1] when the mother and children moved out after separation. Sentiments such as “I love you so much because you share all your love with me” and “I miss you more than 1,000 stars” cannot easily be dismissed.
[1] Exhibit 33.
The children had also very regularly visited the paternal grandparents where they spent time with their paternal family, uncles, aunts and cousins. Paternal family photographs were tendered into evidence of a great many family events usually at the home of the paternal grandparents.[2]
[2] Exhibit 6.
After sufficient periods of supervised time with the father to restore the relationship (and for the youngest child to build a relationship) the children should spend increasing periods of time with the father culminating in extended weekends and holidays.

The Applications

Each of the three parties made single minded parenting proposals for the children, declining to turn their respective minds to parenting arrangements if unsuccessful.
The mother would not contemplate the children staying in Australia. The father would not contemplate the children moving to live in Country B.
This was a reflection of strength of feeling but most unhelpful from the perspective of the Court in crafting appropriate orders.

The applicant father

By his Amended Initiating Application filed 28 July 2020 the father proposed equal shared parental responsibility; for the children to live with the mother and to spend time with him on a graduating basis to each alternate weekend from after school Thursday to commencement of school Monday.
The father opposes relocation of the children to Country B.

The first respondent mother

By her Amended Response filed 1 July 2020 the mother seeks sole parental responsibility, residence and for the children to spend time with the father and paternal grandmother as agreed or at the mother’s discretion.
The mother proposes establishing a residence for the children with herself in Country B.

The second respondent paternal grandmother

By her Initiating Application filed 29 August 2018 the paternal grandmother seeks to spend time with the children each alternate Sunday from 11.00 am – 6.00 pm, for the first weekend of each school holiday period and on defined special occasions.

The paternal grandmother had no proposal if the mother lived with the children in Country B. Her expectation was, given her age and state of health, that she would not see them again if they moved overseas.

The ICL

At the conclusion of the evidence the ICL put forward a proposal that the mother have sole parental responsibility, be free to establish a residence for the children in Country B, that there be no time with the father but no less than six months of regular periods of time with the paternal grandmother prior to departure from Australia.
Thereafter, the children to have telephone, postal and electronic communication with the paternal grandmother.

Evidence

The documents relied on in respect of the application were as follows:
The Applicant Father - Mr Nasser
(a)Amended Initiating Application filed 28/07/2020;
(b)Affidavit of father filed 22/09/2020;
(c)Affidavit of Single Expert Witness Ms E (registered psychologist) filed 21/09/2020;
(d)Affidavit of Single Expert Witness Dr G (father’s GP) filed 21/09/2020;
(e)Affidavit of Single Expert Witness Dr D (father’s psychiatrist) filed 21/09/2020;
The First Respondent Mother - Ms Hakimi
(f)Amended Response filed 1/07/2020;
(g)Affidavit of mother filed 30/09/2020;
The Second Respondent Paternal Grandmother - Ms Nasser
(h)Initiating Application filed 29/08/2018;
(i)Affidavit of paternal grandmother filed 21/09/2020;
Reports
(j)Family Report dated 19/07/2019;
(k)Children and Parents Issues Assessment dated 11/01/2019.

Oral Evidence

The Father – Mr Nasser

The father was extensively cross-examined about the history of family violence. He struggled to express a distinction he wished to make about having committed acts of violence but not being a violent person, “I never intended to hurt her.”
It seemed to me that he was referring to the legal concepts of action and intent, that he had performed violent acts but did not have the intent to do harm.
He made statements such as:
Ms Hakimi has wanted to take my babies to Country B ‘to take my babies away from me’. I could not self-regulate my emotions about that idea.
I have physically assaulted Ms Hakimi on three occasions. I’m not a violent person.
I did have a part in physical violence, we both did.
Of course, from the perspective of the mother, the violent acts were painful and frightening whatever the intention of the father was. Without knowing exactly what the problem was she knew he needed help and wanted him to get that help.
The children expressed love for the father but wanted his behaviour to change.
Quite reasonably the mother herself now wants nothing more to do with the father. The children have held on to a different perspective.
The father too has changed. He is stable, has developed deeper insight and looks back on events in the marriage with distress and feelings of culpability. He also attributed blame to the mother.
The father has had the benefit of well co-ordinated and effective medical advice and therapy as set out below.

Father’s psychiatrist - Dr D

Unfortunately for the children, it took final separation for the father to engage, through his GP, with a psychiatrist and a psychologist and to commit to therapeutic relationships. All three gave evidence. By date of trial his psychiatrist had diagnosed the father and assessed him as follows:[3]
He has a diagnosis of Bipolar Type II disorder with personality traits and cannabis use in remission. He has been stable for the last 24 months and there is no evidence of relapse symptoms and he has responded to treatment. His prognosis is good provided he continues receiving treatment and supervision by psychiatrist and psychologist.
His mental state examination was characterised by good engagement and he was co-operative and polite. His speech was spontaneous and of normal volume and tone His thought form was logical and he denied anhedonia, diurnal mood variation, depressive cognitions, psychotic features or suicidal ideation. He maintained good insight and his judgment was not impaired. He was compliant with treatment. He expressed disappointment and sadness of not having contact with children and was missing them. He often thought of his children and was keen to meet them soon and be part of their lives.
He is on a mood stabiliser Lamictal that he has been compliant with till date since our first consultation. [December 2017 to September 2020]
[3] Affidavit of Dr D filed 21/09/2020, pages 6 and 7.
I accept the evidence of Dr D that she has built a relationship of trust with the father so that he provides “more detail all the time.” Also her professional assessment that he has developed insight into himself.
Relevant to these proceedings Dr D stated that the father recognised he had been violent. The doctor herself did not consider that he was a violent person (otherwise than in the relationship context).
Dr D described the father as having been aggressive, had used cannabis, had made risky decisions and had poor impulse control. Her opinion was that the father was unlikely to relapse if recommended treatment was followed.
The evidence of Dr D which I accept, has real significance for the children being able to build healthy relationships with the father.

Father’s psychologist - Ms E

Ms E has had less involvement with the father due to her own absence from the practice for a period and later leaving that practice. In total about 18 months.
Ms E expressed the opinion that the father had good insight. She rejected the definition of insight as “acceptance of what he’d done” rather it was “more ability to reflect on what happened in a calm safe space.”

Father’s GP - Dr G

Dr G impressed as a thorough, committed, professional practitioner. It is his practice to collect as much information as possible with a patient.
He has attended to the needs of the father. He regards him as a man who is suffering, “his situation would make anyone suffer.”
I conclude that he has taken a compassionate stance with the father who has responded by being open with information about his own behaviour and experience of life and also open to medical guidance.

The Mother – Ms Hakimi

The mother speaks fluent English. Appropriately she turned to her interpreter at any point of uncertainty about meaning.
The mother impressed as a thoughtful, intelligent person with intransigent views.
The mother has rejected the father and any possibility of restoration of a relationship with him. She has good reasons for her decision. The father has been unstable, has assaulted her and forcefully attempted to talk her out of things she has wanted to do.
She stood by him in the hope that his mental health would improve, until she no longer could. She now believes he probably never will:
Q.He may have been able to achieve an improvement in his mental health?
A.I find that hard to believe because of the history.
The difficulty for the mother is that the Court does not agree with her view that the needs and interests of the children in respect of the father are identical to her own. An example of this in cross-examination was about photographs of the children. The mother agreed that other than on one occasion, when the paternal grandmother was in hospital, she has sent no photos to the father or the paternal grandmother for the past three years. Her explanations were various: “there was no contact”; “I have never had a request”, “there was no contact, I was not in a relationship to send pictures”.
It could not have hurt the children, and could have pleased them to know that the paternal family had pictures of them at school and having fun.
The mother made concessions that the issue of which country to live in had been alive and complicated from the time the parties returned from Country B to Australia with their first child in 2009.
The mother has had counselling arising from assaults on her by the father. She has been assisted and supported by that counselling although she showed some signs of shame about having tolerated the father’s behaviour, as if she should have made the decision to cut off all contact earlier than she did.
The mother is firm in her identity “I was a victim. I’ve been operating on survival mode.”
The mother firmly denied all propositions that she had slapped the father, struck the father’s groin with her knee, thrown an apple at him or “yelled and screamed at him to get him to understand how much you needed to go home.”
I do not unreservedly accept the mother’s denials. In January 2019 when the children were interviewed the two older children both recalled “that the mother and father would “argue all the time”. Both thought the father started it but Y described the parties arguing “back and forth”.
However, even if the mother did all that was put to her, her actions are most unlikely to have frightened or injured the father.
The most likely explanation is that in retrospect the mother sees nothing good about the father or his family and herself as helpless and desperate.
I am confirmed in this view by the moment when the mother was reminded about the middle child Y being born with “clicky hips” and the father taking him to hospital appointments. The proposition was put: “He loved his son. He wanted to be involved”.
The mother reflected then answered “It’s possible yeah”, “Yeah that could be possible”, “He also wanted to always have control of everything.”
Her grudging acknowledgement of assistance by the paternal family is explicable in the same way.

The Paternal Grandmother – Ms Nasser

The paternal grandmother was born in Country H and came to Australia as a young woman of twenty. She married soon after.
The paternal grandparents are of Orthodox faith and active in their church.
The paternal grandmother was quite open about seeking orders for the children to see her and the paternal family if the father was not permitted to spend time with them.
She presented as an open and honest witness. She denied having any concerns about the mother’s care of the children.
She acknowledged the three physical assaults by the father, her son, on the mother. She could not have done otherwise, the documents were at Court.
I accept her evidence that she had said to the mother “If he is violent I will go with you to the police station to report it”.
She went on to say that the mother had taken up her offer of using the granny flat in the back garden of the home of the paternal grandparents to have a break.
I accept that the paternal grandparents had a big presence in the lives of the children. The parties and children went there most weekends for meals with extended family. The paternal grandmother happily cooked for everyone.
The mother had conceded that the paternal grandparents cared for the eldest child when Y was born and for both children when Z was born although she added the words “there was no-one else”.
She also conceded that the children engaged in lots of activities with their paternal cousins, in the face of two albums of photographs to that effect.
At the point in cross-examination where the paternal grandmother said that the mother had cut everyone out completely and said not to contact her ‘until the Court decides’ the mother put her head down and looked away.
I conclude that the paternal grandmother would remain respectful of the mother and put aside any hurt she has experienced through what has been said in these proceedings.
Her focus is on the children whom she dearly and deeply loves.
The paternal grandmother was not particularly favourable towards the proposal of the ICL for the children to spend time and communicate with her for six months before moving to live in Country B.
The Court shares her view. To build up a relationship with no likelihood of its continuation would be confusing to the children and most likely upsetting.

The Law

The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

Despite the family violence they were regularly exposed to, the children did enjoy meaningful relationships with both parents each of whom have a great deal to offer them intellectually, culturally and in terms of their religious faith.
There were a lot of fun-filled activities: karate; family celebrations; two trips to Country B; visits from Country B relatives.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

The children have been exposed to family violence.
With the end of the parties’ marriage that exposure stopped.
There is a balance to be struck between past harm experienced against the benefit in reconnecting with the father (and in Z’s case being introduced to the father) and being able to come to their own conclusions about him based on real life experiences.
I conclude that the children should have that opportunity to restore and develop the relationship.
The mother is now implacably imposed to this happening and committed to the belief that the children are so fearful of the father that they should not be brought in contact with him in any circumstance.
In the past she has been less rigid. The mother explained to Y that “Something is going on in Dad’s body that he can’t help”. That was helpful information for Y. He told the family consultant “if he’s changed then I’ll feel safer. I’d like to see him again”.[4]
[4] Family Report dated 19/07/2019, par 113 – the first word “Z” is an error. The passage clearly relates to Y.
To alleviate the children’s fears, and the mother’s, supervised time by a contact service will be required for about three months. Given the range of ages this is preferable to a contact centre. It will enable normal activities.

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

In January 2019 X said she did not want to see the father. Y said he “half and half missed the father”. He recalled two enjoyable trips to Canberra with his father and wanted more adventures with him. X wanted to live in Country B. Y only ‘sort of’ wanted to live there
X denied having written letters to the father but defended her motives if she had done it. She could “remember the father writing letters to her but she was not allowed to reply.”[5]
[5] CAPIA dated 11/07/2019, par 27.
In June 2019 the views of the elder children were canvassed by the family consultant in interview. They had had no time or contact with the father.
By then X was referring to her father as a “monster”. She was using adult language to disparage him. She denied missing him at all and derided the role of the paternal family in her life.
Y still wanted to see his father and fondly remembered fun times together.
The ICL spoke to the two elder children in October 2020 and provided information in writing to the Court about expressed views.[6]
[6] Exhibit 5.
By then both children did not want to see the father or the paternal grandmother. Both wanted to live in Country B.
It must be the case that as the trial approached the children were encouraged by the mother in the direction she wanted for herself.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

The children have a loving trusting relationship with the mother. The family consultant identified that the mother appeared to be involving X in adult conversations about the father and using her as an emotional sounding board.
The two older children both believe that the father was harder on X than Y. Y felt sorry for his sister about that.
The father conceded that he was like that, tougher on X because she was a more challenging child, Y more compliant. The mother has also had some difficulties with X’s behaviour.
The father also conceded that he had compared X unfavourably to her brother to change her behaviour but had learned in parenting courses undertaken since separation not to do that.
The mother alleged that the father had chased X with a belt. The father agreed he did, as a joke, arising from the way he was disciplined at school as a child and X knowing it. He snapped the belt and she was laughing. It is unlikely that the father was intending to hurt the child with the belt.
Z has spent so much time away from the father he probably has no memory of him. The family consultant reported the long term implications for the child of never having had the opportunity to build a relationship with the father may be difficulty with self-esteem and behavioural problems, particularly as he enters adolescence.
In his interview Y commented “Z sees an ordinary man at the shops and says ‘Dad, is that my Dad?’ And I say ‘No that’s not your Dad’”. Y went on to say “I tell Z that dad’s in Sydney because he’s been bad to mum and us.”
The situation of Z is different to his older siblings. They hold clear memories of their father both good and bad. Z has only a chimera.
The children have had very close, warm, loving relationships with the paternal grandparents and their cousins, uncles and aunts. One or more of the children has a paternal uncle as a godfather.
The children, especially the two elder children, also have a loving connection with the maternal extended family.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

The father has never stopped trying to spend time and communicate with the children.
He has remained patient as two sets of orders for supervised time were put in place in 2019 but no contact took place.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

The father has paid child support as assessed. For three years it was a minimal amount, about $40. Then in September 2020 the assessment increased tenfold to $455 per month.
After separation in 2017 the father transferred money directly to the bank account of the mother. He typed little messages into the internet transfers; “please forgive me,” and “I love you hun.” The mother, no doubt correctly, interpreted the messages as attempts at reconciliation. She closed the account.
The father also made financial proposals which antagonised the mother.
In October 2017 solicitors for the father put forward an interim proposal that he see the children each alternate Saturday and that he pay $300 per week to the mother.[7] The mother did not respond.
[7] Affidavit of the father filed 22/09/2020, par 307 and Annexure F42.
When the mother wanted to take the children back to Country B in 2019 for Christmas the father offered to pay $10,000 to cover maternal family members coming to Australia for Christmas instead. The mother did not respond.

The mother could have put counter offers. The father could have tried harder to provide more financial support.
I do not conclude that the father was indifferent to the welfare of the children. He was looking for a way to support the mother to stay. The conditional nature of his proposals upset or perhaps infuriated the mother.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

The children presently have no contact with the father and paternal grandmother. If they lived in Country B that would not change.
The move however would put an end to the possibility of restoring and valuing those relationships. What their maternal family would say or avoid saying to them about their life in Australia and the reason for leaving is unknown.
The children would be leaving their country of origin, their school and pre-school, their friends and activities. They apparently speak some B Language and probably understand more but it will be different for them to learn and live where B Language is the first language.
The children are likely to benefit from the mother’s pleasure at being “home”. However it is twelve years since the mother lived in her native country. Where she will live and work, how she will reconnect with past associations, is unknown.

The practical difficulty and expense of a child spending time with and communicating with a parent

The children presently live in the J Region. The father lives in a western suburb of Sydney. The trip between homes is about 100 kms/90 minutes drive.
At 11, eight and almost five the children could manage that trip if it was fortnightly.
Initially when there is supervised time for several months the father will do all or at least most of the travelling to spend time with the children in their local area.
Later changeovers through a centre or paternal relative will work well.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

Each of the parents is an intelligent, capable, well-educated person, devoted to the children.
In 2016 the parties united in concern for their then four year old son Y diagnosed with a tumour which required surgery. The father took the child to follow up visits at the children’s hospital over the following two years.[8] The parties had a newborn, Z, and seven year old X at that time.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

[8] Affidavit of the father filed 22/09/2020, Annexure F10.

The children are a girl of 11 and two boys aged eight and almost five.
All three children were described by the family consultant as within normal parameters for development and behaviour. The youngest child, then aged three, was not interviewed.
The mother has been the main carer and primary attachment for the children.
X was assessed as wanting to protect her mother and make her happy.[9] Of the three children she has been most exposed to the mother’s distress and most involved in angry scenes. She has clashed with her father and the evidence of the mother suggests that X is the child most similar to the father with a strong personality.
[9] Family Report dated 19/07/2019, par 107.
Y frankly expressed a need to spend time with his father. He was assessed as wanting to please his mother but unable to fully reject his father: “if he bees good to me a lot, I would like it every single day to spend time with him.”[10] Y made that statement in mid-2019.
[10] Family Report dated 19/07/2019, par 117.
Soon after the release of the Family Report, orders (22 August 2019) were again put in place for the children to spend supervised time with the father. However reluctantly the mother consented to those orders. There was also provision by consent for family counselling.
It is likely that the empathy for the father expressed by the two older children informed the decision of the mother in this regard.
The children are Australian children because the father is Australian, they were born here and have grown up here. The father’s family is from Country H and family members speak K Language. The mother’s family is from Country B.
The parties and children are church attenders and are people of religious faith and conviction. The mother was baptised into an Orthodox Church as are all three children
The children have a rich cultural heritage.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

This is a matter where family violence has taken place. The father conceded that he has been the perpetrator of violence.
There have been family violence orders and convictions for the father.
The mother asserted that:
Mr Nasser was physically violent towards the children and me nearly every day of our relationship.
I do not accept that statement as fact. It is probably a reflection looking back and seeing nothing positive about the marriage.
Both parties have experienced tremendous frustration. Each one wanted the marriage to endure but there was a confounding factor which in my view the mother understood better than the father.
The father has had episodic mental illness at least since 2006 when he was diagnosed with depression and anxiety. He has used cannabis.
By 2010 the parties were having heated arguments. The mother probably did throw an apple at the father’s head when he was driving. Weeks later the mother struck the father in the groin with her knee.
The father grabbed the mother’s face and squeezed it causing pain. In that regard the father asserts he put his hand over the mother’s mouth to stop her talking. I accept it was a frightening coercive incident.
The father blamed his anti-depressant medication. The mother went to police.
An Apprehended Domestic Violence Order (“ADVO”) was taken out for the protection of the mother. The mother’s parents came from Country B to assist her with X then aged 14 months.
The father continued to contact the mother. He was charged with breaching the ADVO.
At the police station the father hit his head against the wall until it bled.
The father was transferred to a psychiatric unit of a hospital. He was diagnosed with BiPolar Disorder and prescribed lithium.
A few months later, early in 2011 the parties reconciled. Soon after the second child was conceived.
By September 2011 the mother was pleading with the father in a letter which reveals what she understood about him, his behaviour and his mental health. It was insightful and still hopeful although the mother ended by expressing her wish to return to Country B:[11]
[11] Affidavit of the father filed 22/09/2020, Annexure F19.
I feel terribly sorry for all the pain, heartaches and problems we have been through, and I know for sure that none of us ever wanted them to happen.
But they did! Bad things are repeating…And that makes us where we are today. And because of everything we went through,
I now realise something that I did not realised (sic) before.
Your heart is filled with love and goodness, but your mind/head gets in the way in a wrong way, all the time.
Of course you don’t want this, but you don’t have controle (sic) over this.
And this will always happen, especially when you do not face the facts.
I know that this is really difficult for you and you rather believe that hiding and dinying (sic) your BP disorder, is the way to go.
But that will only make things worse!
You have to accept that you have this disorder and you have to learn to live with it, in the best way you can, for the rest of your life.
It takes a combination of medication, counselling, attention to warning signs and sensible and informed lifestyle choices to make “your life” and “the life of the people you live with” work!
Don’t think you can handle this on your own or the gym is the answer.
If you want a future and to be a good example and dad for X and the baby, you better make it work!
In 2012 the parties again separated after an incident of violence, then reconciled. After a trip to Country B there was a period of stability, but not for long.
In 2013 the parties moved to Sydney at the mother’s request.
The father was both drinking alcohol and using marijuana apparently without reference to a doctor about drug synergy.
In May 2014 in a letter to the mother the father commented on their problems in this way:
The problem is sometimes we can be horrible, me too, probably largely to blame for this, but we each share blame for letting each other and the relationship down…[12]
[12] Affidavit of the father filed 22/09/2020, Annexure F3.
In 2014 the mother picked up baby Y and her keys and handbag and left the home. The father came in the car to collect her. An argument followed. In a horrible way the father leaned back grabbed the mother hit her and pulled her hair, a chunk of which came loose by force or from the effects of medication. The baby was crying. I accept that the mother was, as she said, “terrified, humiliated and afraid”.
The mother called police. The father was charged with assault.
For a third time the parties separated. They remained apart for twelve months.
In May 2015 the parties and children travelled to Country B for the wedding of the mother’s brother.
The mother made a very positive and loving statements about the father. For instance on Facebook in 2015 after a trip to Country B:[13]
I feel so thankful and blessed to have spent this time with the 3 loves of my life and the time together we got to spent to my relatives Special thanks to my wonderful husband for making this trip happen.
[13] Affidavit of the father filed 22/09/2020, Annexure F4.
In mid-2015 the parties conceived their third child. Z was born in early 2016.
In September 2017 the mother made a statement to police in which she described the father’s behaviour at a time when both she and X had recently both been sick and vomiting, “he became very verbally aggressive and started to scream at me while he was in my face” and “…during the conversation Mr Nasser has raised his hand and slapped me across the face”. The children were in the house. The parties continued to argue.[14]
[14] Affidavit of the father filed 22/09/2020, Annexure F14.
The father concedes that he did slap the mother in the context of an argument.in the kitchen in the presence of the children. The father asserts that the mother was denigrating his sister. He asked her to stop and told her he would slap her if she did not.
In his oral evidence on this point the father stated that because he had made the threat in front of the children “I had to follow through so my children would know not to denigrate my sister”. It was a strange explanation, using an assault on the mother as a threat to the children.
The parties separated on a final basis a few weeks later.
The father was charged with common assault, pleaded guilty and was put on a Section 9 Bond for one year.
The children have been exposed to violent arguments with all the uncertainty of not knowing when the next one would erupt and worse whether it would end in violence.
Although the father has done more harm neither party has held back verbally.
It must have been frightening for the children to see their father slap their mother and see the results, the mark on her face, her tears and distress.
The mother is not at all the subject of criticism by the Court in relation to the pattern of separation and reconciliation.
I conclude that the mother loved the father, enjoyed his good side and despaired of his aggressive unbalanced side. She hoped for change just as the older two children have since separation. She knew his mental health needed to be stabilised.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

The orders made prevent the mother from having the children live with her in Country B. She would not leave without them.
If relationships between the children and the father are restored/developed in accordance with these orders the children will become much more comfortable and confident in the love and affection of the father and extended paternal family. That may take two or three years.
Thereafter, if she still wishes to return to her native country and considers that it would be in the best interest of the children to relocate the mother might make a further application to this Court. If the proposal consisted of travel by the children back to Australia for holidays, time for the children in Country B when the father came to visit and regular communication by telephone and electronics it could be favourably received.
I consider that further proceedings in those circumstances would be preferable to an order that would bring finality to the proceedings but would extinguish the relationship between the children and the father.

Any other fact or circumstance that the Court thinks is relevant

The mother has not been part of the paid workforce in Australia other than as a fruit picker in the early weeks of her working holiday in 2008.
Since separation in September 2017 the mother has received Commonwealth benefits being Single Parent Benefit and Family Assistance Benefit of about $1740 per fortnight. During the period of Covid-19 health restrictions she has also received a Coronavirus supplement of $550 per fortnight.
The mother qualified as a primary school teacher in Country B and expresses confidence that she would easily find work as a teacher there and intends to do so. She would support the children from that income.
Other than the bald statement “My teaching degree is not valid in Australia”,[15] there is no evidence of enquiries about what steps could be taken to enable the mother to teach in Australian primary schools or if additional study would be required.
[15] Affidavit of the mother filed 30/09/2020, par 25.
The mother refers to the fact that when her youngest child Z turns six years (March 2022) she will be obliged to enter the paid workforce in Australia. By that time X will be 13 and starting high school, Y will be ten.
The mother is an educated, intelligent, resourceful person. By 2022 when Z starts school she will have lived in Australia for 14 years and is likely to be able to find employment.

Parental Responsibility

When making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence.
The father concedes that he has engaged in family violence in particular assaults on, and abusive behaviour towards, the mother. There are ample grounds for finding that a parent has engaged in family violence. Accordingly the presumption does not apply.
The presumption being rebutted does not arise for consideration.

Conclusion

I have concluded that the likelihood is that the mother returning to Country B would result in the children losing all contact with the father and his family. X’s innocent remark to the family consultant about living in Country B is poignantly consistent with that conclusion:
I thought I could have a phone to keep in contact with Sophia (a school friend) but our mums said we can’t do that in case dad gets my number.[16]
[16] Family Report dated 19/07/2019, par 99.
Even more significantly I conclude that the children would be likely to grow up believing that their father was a bad man who was a danger to themselves and their mother. The hopes of the two older children that their father would get help to change his behaviour would fade. It is possible, but unlikely, that the mother has told them that the father has done exactly what they hoped.
Accordingly, the application to relocate has not been granted.
It is however reasonable for the mother to travel with the children for holidays to Country B to maintain their connection with that country and with their maternal extended family.
I am confident that the mother understands the consequences of failing to return the children to Australia in accordance with orders. She set out her knowledge of the Hague Convention and also of the psychological harm to children of being forcibly brought back in an application seeking travel to Country B for six weeks.[17]
[17] Application in a Case filed 29/04/2020.
There was at date of trial no immediate prospect of holiday travel overseas and the orders are made conditional on quarantine requirements arising from the Covid-19 pandemic, in both countries, having been lifted.
The orders provide for a graduating program of time for the children with the father. First, three months of supervised time with a service C Services, then supervision is dispensed with and there are two blocks of gradually increasing time, of six months then about 14 months, culminating in extended weekends and holidays. There is provision for special times with both parents.
The mother has not been proactive in complying with orders for supervised time made by this Court in March and August 2019. Counsel for the father, charitably towards the mother, suggested that those orders were not quite clear about her obligations.
In particular the orders made on 22 August 2019 were the result of a negotiation at Court between all parties and their lawyers. The Court noted that the children had not spent time with the father in accordance with earlier March 2019 orders “and it is now the expectation of the parties that all three children will start spending time with the father in accordance with these orders.”
However the mother herself gave evidence that she asked the children if they wanted to go, they said they did not want to go. The mother felt sure it was not in their best interests to see their father. Despite having consented to supervised time twice she decided to disregard orders and rely on her own opinion.
In my view the mother was unwilling to make the orders work.
If the mother continues to adopt that stance, contravention applications by the father would appropriately follow. The mother says she will abide by orders.
There is provision for these orders and reasons to be provided by the father to his treating psychiatrist given the evidence of the latter that it would be of therapeutic assistance to the father.
With respect to the application of the second respondent paternal grandmother an order is made for her to be able to attend supervised visits with C Services during the first phase of spending time, by arrangement with the father.
Since orders have been made for the father to thereafter spend substantial and significant time with the children, the children will spend time with the paternal grandmother and extended family by arrangement. Accordingly, no other order for time or communication is made.
Orders are made accordingly.

I certify that the preceding two hundred and twenty six (226) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 19 January 2021.

Associate:

Date: 19 January 2021

[2021] FamCA 5

19 January 2021

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Natural Justice

Procedural Fairness

Costs

Remedies