Noor and Nabil

FAMILY COURT OF AUSTRALIA

NOOR & NABIL

[2007] FamCA 688

CHILDREN – Children’s issues - Gross domestic violence involving wife and children - Presumption under s 61DA rebutted - No “time to be spent” - No communication with children

Family Law Act 1975

Applicant:

Mr Noor

Respondent:

Ms Nabil

Independent Children’s Lawyer:

File Number:

PAF

2845

2001

Date Delivered:

1 February 2007

Place Delivered:

Melbourne

Judgment of:

Carter J

Hearing Date:

29, 30 and 31 January 2007 & 1 February 2007

Representation

Applicant:

In person

Address for Service for the Applicant:

B, NSW

Counsel for the Respondent:

Ms A Glaister

Solicitor for the Respondent:

Macgregor Solicitors

Independent Children’s Lawyer Counsel:

Ms M E Agresta

Independent Children’s Lawyer Solicitor:

Victoria Legal Aid

Orders

That all previous parenting orders in relation to the children J born in November 1989, G born in May 1994 and A born in March 1997 be discharged.
That the children live with the wife.
That the wife have sole parental responsibility for the children.
That there be no time spent by the husband with any of the children or any communication by the husband with the children.
That my Reasons for Judgment be transcribed and following editing thereof, be made available to the father and the solicitors for the mother and the Independent Children’s Lawyer.
That all exhibits be returned to the party or solicitors for the party tendering the same.
That all documents produced on subpoena be returned to the person or institution providing the same.
That save as aforesaid all outstanding applications be dismissed and removed from the matters awaiting finalisation.
That the appointment of the Independent Children’s Lawyer be discharged save in the event of any appeal.
That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS CERTIFIED

That pursuant to r 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: PAF 2845 of 2001

Mr Noor

Applicant

and

Ms Nabil

Respondent

REASONS FOR JUDGMENT

Mr Noor (“the father”) and Ms Nabil (“the mother”) cannot agree as to whether or not the father should be allowed to see and/or telephone their three daughters. The children are J, born in November 1989 (“[J]”), G, born in May 1994 (“[G]”), and A, born in March 1997, (“[A]”).
The father claims that the children wish to see him and talk to him, but the mother will not allow this to occur. The mother claims that the children do not wish to have any contact at all with the father and that if they did want to she would allow this to occur. It is my responsibility to determine these very different claims.

Background

The father was born in July 1950. The mother was born in October 1967. They married in Syria on 17 July 1988. It was described as an arranged marriage. The father arrived in Australia after that marriage in about October 1988 and the mother followed later, arriving as I understand it, in January 1989. The three children were all born in Australia on the dates I have already noted. J is now 17, G is now 12 and will be 13 in May. A is nine and she will be 10 next month in March.
The father and the mother separated on 20 December 2000 when the mother and children left the parties’ then residence. The children have always lived with the mother and have spent only very limited time with the father since separation. The marriage was dissolved and the decree nisi became absolute on 29 September 2002.
During the marriage the parities lived in New South Wales where the father still lives, however, the mother and the children moved to live in Victoria at some stage in 2002 as I understand it, but certainly after final orders were made following contested parenting proceedings in the Parramatta Registry of this Court had been determined by orders made 5 March 2002. The orders in question provided in broad terms that the children were to live with the mother. The father was to communicate with the children by sending them cards and letters addressed to a post office box for a women’s refuge. That refuge was in turn requested to pass them on to the wife. The mother was to ensure that any cards or letters were passed on to the children and if the children requested it, the mother was to facilitate the children's responses to the father as well as to facilitate any telephone calls they might wish to make to him.
Apart from that the father was restrained from having any personal contact with the children unless the mother agreed in writing that he might do so. It appears that some of the father's letters were returned to him, at least after the mother moved to Victoria. The father has not seen the girls since January 2002 when he saw them when a family report was being prepared in connection with the proceedings I have already referred to in the Parramatta Registry. Before that time he had not seen the children since their parent’s separation in December 2000 save that he saw the two younger children at a contact centre in April 2001 and again towards the end of that year. J did not attend on any of those occasions.
On 17 October 2003 the father brought proceedings in the Parramatta Registry, seeking amongst other orders that he spend time with the children on a face‑to‑face basis. The mother opposed the father's application and also brought an application for the proceedings to be transferred to this Registry, her application having been filed on 16 February 2004. She was ultimately successful and the case was transferred from the Parramatta Registry to this Registry by order made 23 March 2004.
An Independent Children's Lawyer was appointed on 24 May 2004. Certain orders were made by consent on 28 June 2004. One of the orders which was made was for the father to communicate with the children by way of cards and gifts, using for those purposes a post office box. He was also able to telephone the children each Sunday but in the event that the children did not wish to speak to him it was ordered, and again by consent, that the mother would not be deemed to be in contravention of the relevant order. The father it appears communicated with the children in accordance with these orders from about early July 2004 till about the middle of August 2004.
The mother’s case is that the children became increasingly emotionally distressed and in about the middle of August she asked her solicitor to advise the father that she would not make the children available for telephone calls in the future. The father has basically not had any telephone communication with the children since. On 27 May 2005 on the mother's application, orders were made which effectively brought all forms of communication between the father and the children to an end.

The Hearing

The mother and the independent children's lawyer were legally represented, the mother by Ms Glaister and the Independent Children’s Lawyer by Ms Agresta. The father appeared in person. I am aware of and followed the guidelines set out by the Full Court for the assistance of Judges at first instance in relation to matters involving unrepresented litigants. Amongst other things I explained matters of practise and procedure to the father and provided him with a copy of the relevant significant legislative provisions. Further, at my suggestion and after explanation to the father, Ms Agresta agreed to cross-examine the mother and Mr L - who wrote two Family Reports - before the father and in order to assist him with his own cross-examination.
The father expanded his case. Previously, notwithstanding what was in his initiating application and for some considerable time, his case was limited to communication with the children by telephone and this is clear from his trial affidavit. However, when the case commenced he told me he also wanted to see the children. When the matter was before Bennett J in November 2006, the father had said he did not wish to cross-examine Mr L, but when I explained the possible consequences of a failure to cross-examine, he changed his mind. The case therefore took somewhat longer than had been originally envisaged and arranged. None of this is said as a criticism of course of the father or indeed anyone else.
Because of these changes, the mother was permitted to rely on an affidavit filed in the Parramatta Registry during the proceedings in 2001 and 2002. The father agreed to this after explanation. He also accepted my suggestion that his own earlier affidavit should be read and considered. He had earlier been cross-examined by Ms Glaister about most matters which were set out in the mother’s earlier affidavit, as well as certain parts of his own earlier affidavit. He was provided with copies of the Family Reports which he had not brought to Court which he confirmed he had earlier read and was able to read them again prior to his own cross‑examination about those reports and before the cross‑examination of Mr L. An interpreter had been arrangement and she assisted both the father and the mother with the consent of the father and the legal representatives for the mother and the Independent Children’s Lawyer.
Due to oversight, an interpreter did not appear when the matter would otherwise have reached conclusion upon the parties making their respective submissions. No interpreter could be arranged for the day and accordingly the matter was stood over for the purpose of making those submissions.

Documents Relied On

The father relied on his trial affidavit which had been filed 10 October 2006 and as I have already said his earlier affidavit which had been filed in the Parramatta Registry on 19 October 2001. He tendered some documents. Whilst I read all the documents he tendered, most of them were not admissible in evidence for reasons which I explained at the time. The mother relied on her own trial affidavit which had been filed 11 October 2006, and her earlier affidavit filed in the Parramatta registry on 21 December 2001. Reliance was also placed on the two reports of Mr L dated 12 March 2005, and 12 October 2006, both of which were annexed to his affidavits which were filed 4 May 2005 and 13 October 2006 respectively. These reports were also relied on by the Independent Children’s Lawyer.
Reference was also made to a Family Report of a Ms C who prepared that Report for the purposes of the proceedings in Parramatta. Ms C did not give evidence although there was some cross‑examination of the father about matters set out in that Report. Case outlines and summaries of argument had been filed on behalf of the mother and the Independent Children’s Lawyer and these were also relied upon.
I heard submissions on behalf of all parties and where necessary clarified those made by the father.

Credit

The appropriate standard for proof in cases such as this is the Briginshaw test; namely, the balance of probabilities subject to the gravity of the allegations. (see also s 140 of the Commonwealth Evidence Act). I have had regard to the gravity of some of the allegations in my determinations.
There are substantial differences between the evidence of the father and the mother, and the statements of the children as reported by both Ms C and Mr L.
The mother and the children described incidents when the father was physically, verbally and emotionally violent towards the mother, at times in the presence of the children. The two older girls also reported incidents of physical violence by the father upon them, as well as verbal aggression directed towards them.
The youngest child reported attempts by the father to set her and her sisters against each other and their mother. All three children were reported by Mr L as being clear and direct in their views, that they did not wish any form of communication with the father. The mother expressed ongoing fear of the father arising from his treatment of her and the children during the marriage. This fear was described by Mr L as “palpable”. The father acknowledged and indeed volunteered that the mother was afraid of him, saying that he could see this in her eyes. At the time he was in the witness box giving his evidence and the mother was seated in the body of the Court.
The father acknowledged giving the mother what I would describe as “backhanders”. He said they were to her shoulder and occurred when she committed mistakes or did something wrong, however, this was “only” once in every 50 occasions that she transgressed. He otherwise denied physical abuse. He acknowledged derogatory statements. He also denied the behaviour described by the mother and the children. He said at times that the mother was lying, that the children were lying to Mr L at times, that Mr L at times was not truthful in his reports. He also said at times that Mr L would not have recorded matters in his reports if the children had not said what Mr L reported them saying, clearly contradicting his other evidence.
Even though I have made allowances for the stress of giving evidence, the difficulties in self representation and the fact that English is not his first language, I am forced to conclude that the father’s evidence was at best very often contradictory, and on some occasions quite untruthful. One simple example of his lack of consistency will suffice. He gave evidence on the first day of the hearing that he had known where the wife had lived for the last three years. The wife had sought to keep her whereabouts a secret. On the following day I asked him about this and he replied with words to the effect that he had known for the last six years where she was living, but she - the mother - thought he did not know. Shortly after that he said that the mother had herself told him where she was living about one and a half years ago. He was unable to explain the obvious discrepancy and indeed non-responsiveness was a recurring feature of his cross-examination.
I also note that one of the orders that the father sought in his initiating application filed 17 October 2003 which commenced the current proceedings was for a location order. The father not only denied having hit J but also denied that the police had charged him with this. However, in his own affidavit filed 19 December 2001 he deposed that he had in fact been charged with such an assault by the police. He even annexed the Police Facts Sheet which confirmed this. He also annexed his statement which was given to the police. It is proper to note that he denied grabbing J’s hair, scratching her, lifting her from the ground and throwing her towards the wall, which were elements of the charge. However, he also said in that statement that he pushed her “from the shoulder”.
The father also denied that the mother had obtained an apprehended violence order, but the Court file contains a copy of a sealed order of the Local Court showing a variation made on 11 May 2001 of an apprehended violence order made 12 April 2001. The mother and the children were the "protected persons"; the period was for a year; and the father was noted as having been present in Court. These were but two of the occasions when the father, I am satisfied, lied to the Court. On other occasions he deflected blame, refused to acknowledge matters which were clearly within his own knowledge and on other occasions as I have said was very non-responsive indeed.
By contrast the mother was direct in her evidence. She was clear and consistent and all in all she was an impressive witness. I agree with Mr L’s opinion that she displayed very little animosity towards her former husband. I also concur with Mr L’s view, as expressed in his first report in par 6.1 in which he cited some of the statements made by the mother to him and his own opinion. On this point it is relevant to note that Mr L had explained during questions by Ms Agresta that when passages in his Report had inverted commas around them they were direct quotes.
It is useful perhaps to read out par 6.1 because of matters which will follow later in these reasons:
“[The mother] struck me as entirely genuine and sincere in her assertion that she did not ‘want my kids to live without a parent. Of course it would be better if they had a mother and her father. Our relatives have tried to fix it but he is an angry and violent man and he can’t control his anger and we’ve tried the letters and cassettes and the contact centre and the telephone calls. He just can’t control himself on the phone. He can’t just have a nice conversation with the girls. He’s gotta blame me and argue with them. It upsets them. Once [J] didn’t pass a test at school after she’d had an argument on the phone with her father’.”
Mr L’s qualifications and experience are set out in his two reports. I accept that he is an experienced psychologist and he is qualified to give expert evidence. The father complained that Mr L had only spoken with him for one minute when he interviewed him for the purpose of the first report. That interview was by telephone for reasons explained in the report itself. It was clear that the father was speaking literally when he ascribed the time of one minute to the interview. Mr L denied that. The interview was of such short duration he could not be precise but said the interview was much longer but probably not as long as half an hour. He pointed to the matters recorded in his report that in my view corroborated this evidence.
The father cross-examined the mother and Mr L. This did not result in their evidence being shaken, nor did any cross-examination of the mother conducted by counsel for the Independent Children’s Lawyer. Mr L and the mother emerged with their credit intact. Where there is a difference in their evidence I prefer that of the mother and Mr L to that of the father.
Ms C’s report is only of limited assistance, given that she was not called to give evidence in the present proceedings. That is perfectly understandable in the circumstances. Her report was read by Mr L and extracts from it were cited in his own report. Additionally, there was some cross-examination of matters contained in that report. It is also of relevance in the sense that it is part of the continuing story of the lives of these children and as such points to the consistency in the present case of their views and their observations and statements.

The Parties' Proposals

When this case began, and indeed throughout it, the father proposed that all communication with the children, be it face-to-face or by telephone, should be conditional on the children’s agreement. The Family Reports make it clear that all three children do not wish any form of communication. The father does not accept that this is the truth either because the children are not allowed by their mother to say what they really want or because the mother is not telling the truth about this or because Mr L is not telling the truth or perhaps because Mr L is mistaken. He proposed that if face-to-face contact were granted, he would travel to Melbourne, stay with friends or relatives and take the children out for a meal.
The mother continues to seek that the children live with her. She also seeks an order for sole parental responsibility and that the children not spend any time with the father or have any form of communication with him. She also sought an order that the father be restrained from bringing any further applications in respect of the children, save with leave of the Court, and I will return to this in due course.

As will shortly be seen, during the course of the hearing and in final submissions it was submitted on behalf of the Independent Children’s Lawyer that the father should be permitted to receive from the mother copies of school reports relating to the two younger children on two occasions each year. The mother opposed that application. The father supported the application for the school reports, although it was not something which he had raised himself.
The Independent Children’s Lawyer had set out in the Case Management Documents filed with the Court the tentative view of the Independent Children’s Lawyer which was basically in support of the mother’s application. At the conclusion of the proceedings, having heard all of the evidence, the Independent Children’s Lawyer’s preliminary view became her final view. No-one disputed that the children should live with the mother.

The Law

Part VII of the Family Law Act 1975 (Cth) (“the Act”), deals with children’s issues. The applications before the Court are for parenting orders under the Act. The particular parenting orders sought deal with matters under ss 64B(2) and 64B(3) of the Act. The Objects of Part VII of the Act and the Principles underlining those Objects are set out in s 60B. Section 60B(1) and (2) are in the following terms:
“Section 60B(1) of the Act sets out the Objects of Part VII of the Act, namely to ensure the best interests of children are met by:
‘(a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)      protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)      ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)      ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.’
The principles underlying those Objects are set out in s 60B(2). Those principles apply except when it is or would be contrary to a child’s best interests:
‘(a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)      children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)      parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)      parents should agree about the future parenting of their children; and
(e)      children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture)’.”
Section 60B(3) is not relevant to this case.
Section 60CA is of fundamental importance. This section requires a court to regard the best interests of a child as the paramount consideration when deciding whether to make a particular parenting order in relation to a child. In deciding what is in a child’s best interests, the Court must consider the various matters set out in s 60CC. The considerations are set out in s 60CC(2) and (3). Section 60CC(2) sets out two primary considerations and the other section sets out further considerations which are described as “Additional considerations”. The list of considerations is not closed, given the provisions of s 60CC(3)(m). Section 60CC(2) and (3) are in the following terms:
“Primary considerations
60CC(2) [Primary considerations]
The primary considerations are:
(a)        the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)        the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations
60CC(3) [Additional considerations]
Additional considerations are:
(a)      any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)      the nature of the relationship of the child with:
(i)       each of the child's parents; and
(ii)      other persons (including any grandparent or other relative of the child);
(c)      the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)      the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)       either of his or her parents; or
(ii)      any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)      the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)       the capacity of:
(i)        each of the child's parents; and
(ii)      any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)      the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)      if the child is an Aboriginal child or a Torres Strait Islander child:
(i)       the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)      the likely impact any proposed parenting order under this Part will have on that right;
(i)       the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)       any family violence involving the child or a member of the child's family;
(k)      any family violence order that applies to the child or a member of the child's family, if:
(i)       the order is a final order; or
(ii)      the making of the order was contested by a person;
(l)       whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)     any other fact or circumstance that the court thinks is relevant.”
The “primary considerations” are required to be considered in all parenting cases. The “Additional considerations" must also be considered where they are relevant to an individual case.
Section 60CC(4) requires the Court to consider the extent to which each parent has fulfilled or not fulfilled his or her parental responsibilities and facilitated or not facilitated the other parent’s fulfilment of his or her responsibilities.
Pursuant to s 60CC(4A), if a child’s parents have separated the Court must, when it applies s 60CC(4), have regard in particular to events and circumstances which have occurred or existed since separation.
In considering what order to make, the Court must, as far as it is possible and consistent with a child’s best interests being the paramount consideration, ensure that the order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence (see s 60CG).
Section 61DA provides for a statutory presumption of equal shared parental responsibility when parenting orders are made. The presumption relates to parental responsibility and decision-making, not to the question of where or for how long a child should be with another parent. The presumption does not apply in certain circumstances and can be rebutted in others if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. Section 61DA is in the following terms:
“SECTION 61DA PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY WHEN MAKING PARENTING ORDERS
61DA(1) [Presumption of equal shared 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 child's parents to have equal shared parental responsibility for the child.
61DA(2) [Where presumption does not apply]
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
61DA(3) [When making an interim order presumption applies unless not appropriate]
When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
61DA(4) [Presumption may be rebutted]
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
In Goode v Goode (2006) FamCA 1346 [2006] FLC ¶ 93-286 the Full Court summarised the effect of the amendments to Part VII of the Act in the following way, commencing in paragraph 65:
“1.      Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. ‘Parental responsibility’ means all the duties, powers and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2.        The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)).
3.        If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).
4.        The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5.        When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable, the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
…
8.        Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child's best interests, then the issue is at large and to be determined in accordance with the child's best interests.
9.        The child's best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.      When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.      The child's best interests remain the overriding consideration.”
In pars 63 and 64 of the same case, having considered various authorities, the Full Court found that the meaning of “consider” suggested a consideration tending to a result or the need to consider positively the making of an order if the conditions in s 65DAA(1)(a), being the best interests of the child, and s 65DAA(1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2).
The first step is therefore to consider whether the statutory presumption in s 61DA applies. If the presumption of equal shared parental responsibility does not apply or is rebutted, I will need to determine what should be the arrangements for parental responsibility having regard to s 60B and s 60CC, always bearing in the mind that the best interests of the three children in this case are the paramount consideration.
If I decided there should not be an order for equal shared parental responsibility, the considerations in s 65DAA do not apply. However, if I determine that the father and the mother should have equal shared parental responsibility, I must consider making an order for the children to spend equal time with both parents if this is consistent with their best interests and is reasonably practicable.
If this is not the case, I must consider making an order for the children to spend substantial and significant time with both parents if this is consistent with their best interests and reasonably practicable. If an order for equal time or alternatively substantial and significant time does not promote the best interests of these three children, the issue is at large and falls to be determined in accordance with the child's best interests having regard to s 60B and s 60CC.

The Presumption of Equal Shared Parental Responsibility

In my view the presumption does not apply. I am satisfied that this relationship was one characterised by a high level of family violence directed mainly towards the mother but, further, that the children themselves have also been victims of physical and mental abuse at the hands of the father. Details of this violence and abuse are to be found in the mother's affidavit filed 21 December 2002 in the Parramatta Registry. She was not challenged as to these incidents by Ms Agresta. The father denied the allegations which were fairly put to him by Ms Glaister but his denials were unconvincing. The father barely touched on family violence in his own cross-examination of the mother and did not in any event succeed in shaking her evidence at all.
In summary, and whilst this is by no means a complete catalogue of the various incidents involved, I am satisfied that the father was physically violent towards the mother from very shortly after she arrived in Australia. He hit her, kicked her and belittled her to the extent that she attempted suicide. She was admitted to hospital. This was perhaps a month after she came to Australia. The violence did not abate.
I accept that the mother was at times extensively bruised. I accept that on one occasion when she was pregnant with J, the father hit her in the face, causing her nose to bleed, and also began to choke her, stopping only when he felt the baby move while he was close and touching the mother with his own body.
When J was about three years old, the mother left the father, taking J with her. With assistance, she stayed at a refuge for about seven days. She agreed to take J to visit the father. The father became aware of where the refuge was located. The mother told him so because he needed to have the address in order to drive her back there. He then, I am satisfied, attended the refuge the following day. Because the rules of the refuge prohibited the disclosure of the address, the mother had to leave. I accept that she had nowhere to go other than to the home at which she had lived with the husband.
The mother also described incidents when she was punched with a closed fist and I accept her evidence. On one occasion the father punched her in the right eye. I accept her evidence and I further accept that she continued to have difficulty in seeing with that eye from that time. The mother deposed, and I accept, that the father on several occasion would hold her by the hair, holding a large kitchen knife to her face.
The violence continued throughout the marriage and culminated in an incident on 19 December 2000. During that incident I accept that J tried to intervene and that her father grabbed her by the hair, scratching her neck in doing so. He lifted her off the ground and threw her against the wall. I accept the mother's description of what happened after that, as she set out in par 57 to par 62 of her first affidavit.
From the time J was six or seven years old, as she attempted to protect her mother from her father, on some occasions he would hit her and there were times when J had bruising to her face as well as a consequence of this. It was J who finally dialled the number of the domestic violence help line on 20 December 2000 while the father was asleep. The mother and the children left the house and went to a refuge.
The children explained to Ms C, the counsellor at P, and also to Mr L what they had seen and observed in their household prior to separation. So did the mother. In paragraph 6.3 of his first report, Mr L had this to say:
“[The mother’s] ongoing fear of [the father] is palpable in conversation with her. Her body language changes when she talks of the children having contact with him. She becomes tense and avoids eye contact. This is in very direct contrast to the ease with which she speaks about the stability of her and the girls’ current living arrangements, and yet I detected very little animosity in her towards him. In fact she was more inclined to blame herself for not having taken protective action for herself and the girls earlier than she was to show any anger towards [the father].
So far as J is concerned, in par 7.3 Mr L had this say:
“When I pursue (sic) the issue of what she meant by her father needing to change, [J] clarified, ‘He was physically violent to me and Mum and he is verbally aggressive towards the little ones … he doesn’t realise how much that hurts us … there was a stage where [A] just wouldn’t talk and was having nightmares … instead he tries to buy our love, like when he sent $200 for Christmas presents, but even then he wanted it back.
In speaking of his interview with G, Mr L had this to say in pars 8.2 and 8.3:
“8.2. I expressed my surprise that she had not had some enjoyable experiences with her father and [G] responded with cheeky sarcasm, "Yeah, like the time he went to the swimming pool and he beat me because I left my thongs at home …. No, it wasn’t just a smack! … he beat me ... "
8.3. [G’s] memory of this and similar events evidently still upsets her: she became visibly distressed when talking about the pool incident and when she remembered that ‘he threw [J] really hard when she tried to protect mum’.

In speaking of A, Mr L said in paragraph 9.2 of his first report:
“[A] gave 3 main reasons for not wanting to see him or hear from him. She remembers clearly the violence in her family and particularly her father's assaults on her mother. ‘Dad held a knife up to our mum and he hit her and dragged her on the floor … he says I don’t remember and he called me a liar on the phone … but I do remember what he did and he shouldn’t call me a liar’.”
Mr L’s evidence, which I accept, was that he had little doubt that the children had witnessed violence by their father and were sometimes victims themselves. He described the children as being frank and direct in what they said and also told me that their statements were accompanied by appropriate emotion. He told the father when he was cross-examined by him that he believed the children had told him accurately what they had seen and what they had experienced. He told the father that the children were consistent in what they said and repeated his earlier statement that the children's emotions corresponded with those statements. When the father suggested to Mr L that the children had probably been taught what to say, Mr L reminded him that the children all gave different examples and reasons for their attitudes and statements and that there was “no concert” between them.
In his second report, Mr L referred to the conclusion of his first report where he had recorded as follows:
“2.10.1 The 3 [Noor] girls, [J], [G] and [A] are clear and direct in expressing individual wishes to have no contact with their father, [Noor].
2.10.2 While each has individual reasons and specifically relates their wish to incidents involving each one personally, there is a common theme that they have witnessed their father, [Mr Noor], being physically violent towards their mother, [Ms Nabil], and experienced violent or verbally aggressive behaviour towards each one of them independently.
The children’s statements corroborated the mother’s evidence. The mother to my mind was also credible and I agree with what Mr L had to say in par 2.4 of his second report as follows:
“[The mother] speaks credibly of systematic violence on her which was clearly in the extreme range of domestic violence, violence that was witnessed by the children and violence directed towards the children themselves.”
I am abundantly satisfied that the father has engaged in family violence and the presumption in s 61DA does not apply. I also accept that there is merit in par 6 of the Summary of Argument filed on behalf of the Independent Children’s Lawyer where it was submitted that the presumption could also be said to be rebutted.
So far as the children’s views are concerned and the effect on them is concerned, I will deal with this in more detail later on.
I am reinforced in my conclusion that the statutory presumption should not apply by the support of the Independent Children’s Lawyer for an order that the mother have sole parental responsibility for the children.

Determining the Children's Best Interests

On the evidence, face-to-face contact between the father and the two younger children at the Contact Centre in 2001 was unsuccessful. J did not participate. There were further attempts at the Contact Centre later that year which again were unsuccessful. Arrangements were made for telephone contact on an interim basis by orders made 28 June 2004. That contact soon became a source of distress to the children. I accept that the father largely used the telephone communication to denigrate the mother and to berate the two older girls.
The two older girls were particularly affected. They had nightmares, their educational performance suffered, G became uncharacteristically aggressive at school, and following concerns expressed by her teachers about her behaviour, arrangements were made for her to have counselling with the regional school counsellor. After the telephone contact was terminated, I accept that all three children, and in particular the two older children, improved in all areas where there had been concern. Their emotional problems resolved and they are now settled, happy and progressing very well at school.
The children do not wish to have any form of communication with their father. They have formed strong views about this and they have been consistent in expressing their views, although they each have individual reasons. I have already referred to par 2.10.1 of Mr L’s first report as well as the next part of that report. I would also incorporate, for reasons which will emerge subsequently, the balance of 2.10 and the subparts of it which are set out in his first report. In his second report, Mr L wrote in his conclusions at paragraph 5 the following:
“5.1     The three [Noor] girls are now all of an age and maturity where, in my view, overwhelming weight should be given to their wishes about the interactions with their father, [Mr Noor]. They do not want to be made to spend time with him or communicate with him.
5.2      It remains my opinion that they should not be made to and that some finality needs to be brought to the legal processes to relieve them of the pressure it has put them under.
5.3      The three girls told me that they each know how to contact their father if they want to but that it was unlikely that any of them would because of their consistent experience in the past that when they did, the interaction was abusive and distressing.
5.4      I repeat my advice to [the father] that unless he has a radical change of heart about how he should pursue a mutually beneficial relationship with his daughters by understanding and acknowledging his own contribution to their progressive alienation, there is little prospect of their wanting to see him in the future.”
I reject the father’s contention that the mother has effectively brainwashed the children. At my request, Mr L explained to the father during cross-examination some of the more significant indicia of such conduct. I accept Mr L’s evidence that such indicia were absent in the present case. I also accept that the girls’ views and the reasons for them as recorded by Mr were genuine. I also note what Mr L recorded in his second report as follows:
“4.3 In response to a direct question from me, [G] denied that their mother, [Ms Nabil], had influenced her wishes: she said that quite to the contrary, their mother had ‘tried too much’ to ensure that the girls had some contact with [their father].”
…
4.6 In response to a direct question once more, the 2 older girls said that they knew how to contact their father if they ever wanted to and [A] said, ‘I can ask my sisters or my mum … but I don’t want to’.”
The mother’s attitude to the children’s communication with their father was described in par 6 of his first report. Like Mr L, I too was impressed with the mother as being entirely genuine and sincere. I agree with Mr L’s assessment. The mother’s evidence, and demeanour whilst giving it, was consistent with that. I was impressed in particular with her answers to Ms Agresta, some of which I mentioned during the course of submissions. One example was when she was asked how she would feel if the girls changed their mind about not seeing their father. The mother's response was immediate and patently honest. She said it would make her happy. She was in my view without guile.
To my mind the father displayed no insight into the difficulties that the children, and for that matter the mother, have experienced. At the end of his evidence, the father purported to apologise to the mother. With regret, I have to say that I at least did not accept this was genuine. In my view the father was attempting to ingratiate himself with the Court. His alleged apology was quite inconsistent with his evidence and attitude towards the mother. There was no revelation on the road to Damascus in this case.
The Independent Children’s Lawyer asked Mr L to explain what, if any, were the risks to these children of having no communication with their father. The thrust of his reply and his conclusion was that the risk of not having contact was outweighed in the present case by the detriment of having contact. He had earlier outlined the dangers of forcing these children to have contact with their father, comparing it to a technique known as “flooding” which he explained to the Court.
He also explained that if there were to be any prospect of reconciliation between the father and these girls, there would need to be significant changes in the way the father approached them and a very gradual rebuilding of trust. It was not the first time of course that he had said or written matters like that. With regret, I have to say that I heard and saw nothing from the father which leads me to believe that he has either the insight, the capacity or the desire to make such a change in his own behaviour or in the way he deals with these children, and this is so even though I accept that he loves the children in his own way.
When asked by Ms Agresta as to his opinion about providing the father with information about the younger children’s progress at school, Mr L responded that the children were anxious that the father not be aware of where they were. Provided that safeguards could be put into place, Mr L saw no danger in this and thought that it might provide some solace to the father. I note here that the father has become aware of where the children attend school as a result of subpoenae being directed to those schools for the purposes of these proceedings.
I pause here to say that practitioners may care to take note of the dangers inherent in this system, and if there are cases, not just this one, where subpoenae are being issued in circumstances where a person wishes to retain secrecy for his or her residential address or the children’s residential address or school, a request should be made to have such information deleted from the copies of the subpoenae so that inadvertently the information is not revealed. Having said that, it has not been suggested to me that the father has taken advantage of any knowledge that he obtained by, for example, contacting the school or attending at it. I should record that the mother told Ms Agresta, when asked about the provision of school reports for the two younger children, that the children said they did not want him to have them. The father told me during his submissions that he would seek the provision of such reports.
It is convenient to note here some of the things that the father said in his submissions which give emphasis to some of the matters which I observed during the trial:
“I am not Satan. I am trying to defend myself and my children. I believe I haven’t made any mistakes and I am not the only children’s enemies, as was said in the reports. The children should be seeing their mother and their father, especially since he has a very good reputation with everyone. It’s a divine right that a father should see his child.”
What I have written in this section should be seen as a summary of the matters which have most affected my decision. It should not be assumed, because it would be completely wrong, that I have not had regard to the primary and additional considerations expressed in s 60CC and all the objects and principles in s 60B.
I have had the benefit of an excellent written Summary of Argument prepared by Ms Agresta on behalf of the Independent Children’s Lawyer. That outline remains on the Court file as part of the record and I will not read it into these Reasons for Judgment.
The Summary of Argument begins at the bottom of p 3 of the Independent Children’s Lawyer's Case Summary Document. I accept and adopt pars 1 to 4. I have dealt elsewhere with the statutory presumption of shared parental responsibility, although I do not disagree with what Ms Agresta has written in the outline. I accept and adopt pars 8 to 52, both inclusive. The submissions are, with respect to the author, both accurate and in accordance with the evidence. I have not forgotten the submissions, both written and oral, made on behalf of the mother. These too have been helpful.
I have listened attentively throughout this case and also during submissions to what the father has had to say, but he has not persuaded me that any part of his application should be granted. Put simply, the best interests of these children will not be served by any order that they spend time or communicate with the father in any way. The father’s application will be dismissed.
I have been asked by the mother, whose application is supported by the Independent Children’s Lawyer, to make an order precluding the father from bringing further applications without the leave of the Court. I did not ask the father to respond to this because I was unable to be convinced during the course of the submissions that this was an appropriate case or indeed that the threshold had been crossed in this case. If I had any doubts that it might, I would of course had given him an opportunity to be heard.
Ms Glaister confirmed that the application was not brought under s 118 and it would not have made any difference if it had. It was brought under r 11.04 of the Family Law Rules. Before such an order can be made, the Court must be satisfied that an applicant, in this case the father, has frequently started a case or appeal that is frivolous, vexatious or an abuse of process. The applications brought by the father have neither been frequent, nor could they be described as frivolous, vexatious or an abuse of process. That is not to say that I do not worry about the prospect of further proceedings and the effect on the children that the same may bring. Mr L has raised it as a matter of concern, as have Ms Glaister and Ms Agresta. I echo that concern.
The father during the course of these proceedings indeed told the Court that he would effectively bring further proceedings in due course if he did not receive an outcome which was satisfactory to him. That is something which, if he feels it necessary to do, he can do. It is not appropriate at this stage - and I stress at this stage - to grant any such application. Whilst I understand the reasons behind it and indeed echo the concerns of Mr L, the fact remains that the father would have to establish a significant change of circumstances pursuant to the principles in Rice and Asplund and the like, and for the time being at least, that will have to suffice.
As I have earlier noted, it was recommended by the Independent Children’s Lawyer and eventually sought by the father that the mother provide to the father, twice each year, copies of school reports for the two younger children. Mr L was asked about this, and subject to safeguards and the like being able to be implemented, he saw no danger in it and thought it might assuage the father. That latter is not a matter of concern to me.
I asked Ms Agresta, when she raised it during her submissions, what benefit this would have to the children, which is after all the most important matter of all when compared with consolation to their father. She reminded me of the mother’s evidence that the children love their father and that he loves them, in the mother’s view. She reminded me that the children think about their father from time to time, and that was in the connection of events such as Father’s Day or his birthday. A at times at least spoke of sadness. She suggested that it might give the children some sense that the father remains in their lives and is interested in their progress.
The evidence in this case persuades me that the children do not want their father to remain in their lives. That is a matter of great regret.
The only other basis for such an order is reasonably indirect. It is not at all without merit. Ms Agresta pointed out that if the father has indeed brought his current application even in part because of his concerns about the children and their progress and advancement in life, those concerns may be allayed by the provision of these school reports. That would in turn possibly have a flow-on effect to the children in the sense that the father may be more content and may not bring further proceedings. That would obviously be of benefit to the children.
I have made it clear, I believe to all, that my concern is not to afford some sort of consolation prize to the father. Ms Glaister has pointed out that if the reports of the younger children alone are those which are sent to the father, then the children may become concerned that they are being treated differently. To my mind clearly they would be treated differently given the variety of ages and in particular the difference between a 17-year-old and an almost 10-year-old.
My own view is that it is time for this matter to end, hopefully. The possible benefit to the children is very tenuous in my mind. I take into account that the father, since becoming aware of where the children attend school, has not apparently sought to intrude into those arrangements. The children have loudly and clearly said that they are not only not interested in having him in their life - worse than that, they do not want him in their life.
The mother, who is the person who knows these girls better than anyone else in this room - and I am very satisfied about that - says they do not want it. She is not, on the evidence that I have heard, interested herself in playing games of one-upmanship with her former husband; again, I think quite the reverse. My own view is that when I balance all those factors, I have to listen to what the girls have said and what their mother has said, and when looked at, the tenuous possibility that there might be some benefit to the children, I find that not sufficient to displace my thoughts about the need to listen to the children.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate:

Date: 13 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as NOOR & NABIL

[2007] FamCA 688

1 February 2007

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Procedural Fairness

Abuse of Process