Pachris & Tajir
[2021] FedCFamC2F 375
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pachris & Tajir [2021] FedCFamC2F 375
File number(s): PAC 3726 of 2021 Judgment of: JUDGE MURDOCH Date of judgment: 23 November 2021 Catchwords: FAMILY LAW – CHILDREN – Interim parenting proceedings – Father’s application for a graduated regime of time with the children – Mother’s application for no time with the Father – where the Father has current criminal proceedings on foot – allegations of significant family violence including sexual assaults upon the Mother and the Father engaging in coercive and controlling behaviour – where no orders made for time with the Father, matter listed for Trial and Trial Directions made. Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA Cases cited: Goode and Goode [2006] FamCA 1346
In the Marriage of Schenck (1981) FLC 91-023
Marvel & Marvel (No 2) [2010] FamCAFC 101
Mazorski v Albright [2007] FamCA 520
Mulvaney v Lane [2009] FamCAFC 76
Salah and Salah [2016] FamCAFC 100
SS & AH [2010] FamCAFC 13Division: Division 2 Family Law Number of paragraphs: 99 Date of hearing: 4 November 2021 Counsel for the Applicant: Mr Givney Solicitor for the Applicant: Apex Legal Counsel for the Respondent: Ms Lioumis Solicitor for the Respondent: Santo Family Lawyers Solicitor for the Independent Children’s Lawyer: Ms Shedden as agent ORDERS
PAC 3726 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PACHRIS AND: MS TAJIR INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
23 NOVEMBER 2021
THE COURT ORDERS THAT, BY CONSENT AND PENDING FURTHER ORDER:
1.The children X born in 2015 and Y born in 2017 (“the children”) shall live with the Mother.
2.That the parties and or their servants and agents be restrained from:
(a)Denigrating, belittling, or criticising either party in the presence of or within the hearing of the children;
(b)Discussing parenting arrangements with the children;
(c)Passing messages through the children; and
(d)Involving the children in any form of dispute or otherwise.
3.That each party be at liberty to communicate directly with the childrens’ school/day-care about all issues regarding the educational health and welfare of the children.
4.The parties do all acts and things necessary to authorise the childrens’ school and childcare to provide school notices, information, newsletters, and school reports directly to each other.
5.Each party is at liberty to provide a copy of these Orders to the children’s school and childcare.
6.That each party shall advise the other immediately of any significant illness or hospitalisation relating to the children, such notice is to include sufficient information and authority to enable both parents to be fully consulted, advised, and involved in any treatment decisions.
7.Unless otherwise agreed between the parties in writing, the Mother and Father by themselves, their servants or agents are restrained from removing or attempting to remove the children from the Commonwealth of Australia.
8.That the Australian Federal Police place the name of the children X born in 2015 and Y born in 2017 on the Family Law Watchlist at all points of international arrivals and departures in Australia for the purpose of preventing removal of the children from Australia until the children attain the age of 18 years or the Court otherwise orders.
9.The Marshall and all offices of the Australian Federal Police and the police forces are requested and authorised to give effect to these Orders.
10.That within 72 hours of a request by the Independent Children’s Lawyer, the Father and the Mother shall submit to a hair follicle test, and provide such hair samples as directed for the purposes of analysis of drug use in relation to Methadone Metabolites, Opiates, Amphetamine type substances, Benzodiazephines, Cannabinoids, Cocaine Metabolite, Barbiturates, Buprenorphine and anabolic steroids and their compounds (or any one of these drugs), and for that purpose:
(a)The Father and the Mother are hereby restrained from cutting or colouring or allowing any other person to cut or colour their hair prior to the time of collection of hair for the drug testing;
(b)The Father and the Mother shall provide to the Independent Children’s Lawyer and the other party’s legal representatives copies of all test results forthwith upon these results becoming available within 7 days of their receiving them; and
(c)the Mother is permitted to undergo such testing in accordance with her Religious beliefs.
THE COURT ORDERS THAT, PENDING FURTHER ORDER:
11.The children spend no time with the Father.
12.That pursuant to section 68B of the Family Law Act 1975 the Father is restrained from:
(a)Approaching or contacting the Mother or children by any means including electronic communication;
(b)Causing, threatening to cause bodily harm to the Mother;
(c)Harrassing or stalking the Mother; and
(d)Coming within 100 metres of:
(i)The Mother’s home; and
(ii)The childrens’ school(s) and day care.
13.That pursuant to section 68C of the Act, if a police officer believes, on reasonable grounds, that the Father has breached Order 12 herein, the police officer may arrest the Father without warrant and the Father be brought before the Parramatta Registry of the Federal Circuit and Family Court of Australia Division 2 or any other Court exercising jurisdiction under the Act, on the first day on which the Court sits after the arrest, or as soon as possible after that date AND IT IS NOTED that pursuant to section 122AA of the Act that a person who is authorised or directly by a provision of the Family Law Act 1975, to arrest another person may use such reasonable force as is necessary to make the arrest or to prevent the escape of the person under the arrest.
14.All outstanding interim applications are otherwise dismissed.
15.The matter is listed for Trial for 4 days commencing at 10:00 am on 23 May 2022.
16.In the circumstances of the allegations as to risk posed to the children the matter is listed for submissions at 11.30 am on 10 February 2022 as to whether the provisions of section 69ZT of the Act shall apply at Trial.
17.The matter is listed for Compliance Check before the docketed Evatt Judicial Registrar at 9:00 am on 8 April 2022.
18.In the event all parties (including the Independent Children’s Lawyer) have served on all parties and forwarded to the Court via email to …@fcfcoa.gov.au a completed Evatt List Compliance Certification Form by no later than 4pm 7 days prior to the Compliance Check listing, the Compliance Check listing before the Docketed Evatt Judicial Registrar may be vacated.
19.Leave is granted to the Independent Children’s Lawyer to relist the matter on 7 days written notice to the other parties and to the Court before the docketed Evatt Registrar in the event that any further issues arise in this matter requiring further Orders and Directions of the Court.
20.If any of the parties or the Independent Children’s Lawyer at any stage form the view that:-
(a)the matter may not be ready to proceed to trial on the allocated dates;
(b)may require a longer or shorter time for hearing than the allocated dates, or
(c)that there is any other factor that may impact the hearing
that party must contact the Evatt Legal Case Manager …@fcfcoa.gov.au on notice to the other parties to seek that the matter be urgently relisted.
Costs Disclosure (Rule 12.14 Federal Circuit and Family Court of Australia (Family Law) Rules 2021)
21.Not later than 4.00pm on 7 days prior to hearing the lawyer for each party must give the party a written notice of:
(a)The party's actual costs, both paid and owing up to and including the trial; and
(b)Any expenses paid or payable to an expert witness or, if those expenses are not known, an estimate of the expenses.
22.On the first day of trial each party's lawyer must give to the court and each other party a copy of the written costs notice.
Hearing fees
23.The Applicant and the Respondent must pay the setting down and hearing fees in equal amounts (or seek an exemption) no later than 4.00 pm on 28 days prior to hearing pursuant to Regulation 2.03 of the Family Law (Fees) Regulation 2012 (Cth).
Material to be filed
24.Not later than 4.00 pm twenty one days prior to the first appointment with the Court Child Expert for the preparation of the Family Report, the Applicant is to file and serve any Amended Application.
25.Not later than 4.00 pm fourteen days prior to the first appointment with the Court Child Expert for the preparation of the Family Report, the Respondent is to file and serve any Amended Response.
26.Not later than 4.00 pm fourteen days prior to the Compliance Check, the parties are to file and serve:-
(a)A single, consolidated trial Affidavit relevant to their case; and
(b)A single, affidavit of each witness including expert witnesses they intend to rely upon at trial.
Such affidavits are to comply with Part 8.3 Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
27.Except as already provided by these orders, the parties will not be permitted to file any further affidavits and may not rely upon any past affidavits at the final hearing without the leave of the Court.
28.Parties are to ensure that subpoenas are issued and served in sufficient time for material to be returned, read and copied to facilitate the preparation of tender bundles pursuant to these Orders and Directions.
29.In the event that Affidavits or documents produced on subpoena reveal any relevant Court proceedings (in particular in relation to an Apprehended Violence Order or criminal charges against a party or involving the children) the Independent Children’s Lawyer is to request that the Registry Manager obtain the relevant documents from the court no less than 14 days prior to the final hearing.
30.Not later than 4.00pm on the date that is 7 days prior to hearing each party file and serve, and also forward directly by email to the Trial Judge’s Chambers a Case Outline Document (Final Hearing) noting that unless otherwise specifically ordered, it must be no longer than 10 pages in length.
31.Not later than 4.00 pm on the date that is 7 days prior to hearing the parties are to confer and prepare, and the Applicant is to forward to the Trial Judge’s Chambers:-
(a)A joint chronology in Microsoft Word format setting out all agreed facts that the parties ask the Court to take into account; and
(b)An Evatt Trial plan.
32.No later than 48 hours prior to the final hearing each party is to forward to the Trial Judge’s Chambers any proposed Tender Bundle sought to be relied upon noting that:
(a)Any documents contained within the tender bundle will not form part of the evidence until actually tendered at the hearing; and
(b)Any proposed tender bundle must be both indexed and consecutively paginated and have an index to the documents; and
(c)Tender bundles that do not comply with the index, pagination and delivery directions will be rejected and be unable to be relied upon at the hearing without leave first being obtained.
Objections
33.Each party shall, not less than 10 days before the commencement of the Trial:-
(a)Notify the other party in writing of any objection to any material in any affidavit filed by the other party;
(b)Specify the paragraph or part of the paragraph objected to; and
(c)Detail the grounds of the objection.
34.The other party shall reply to the objections in writing not less than 5 days before the commencement of the Trial.
35.The parties before the Trial shall confer in relation to any objections and provide to the Court no later than 2 days prior to the Trial a list setting out:-
(a)The agreed deletions from each affidavit; and
(b)The objections to be argued on the hearing date and the ground for the objections.
Notification to Witnesses
36.Twenty-eight days prior to the Trial, the parties are to notify the Court Child Expert or Family Report writer (“writer”) of the dates for Trial and advise them that they are required for the purposes of cross examination.
37.In the event that no such notice is given to the writer or the writer is not available, the Family Report will be admitted into evidence without cross examination, subject to any objection.
THE COURT NOTES THAT:
A.With respect to the Orders for the parties to undertake testing for illicit substances, the Mother advises the Court that her hair is currently dyed.
B.Noting the strict timeframes associated with matters placed into the Evatt List, parties and practitioners are to ensure their strict compliance with the Orders and Directions made today.
C.Each of the parties have been forwarded via email today the Evatt List Compliance Certification Form referred in the Orders above.
D.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
E.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
F.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
G.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Pachris & Tajir has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
This matter relates to the interim parenting arrangements for the two children of the relationship, Y born in 2017 and X born in 2015.
The Father has a child from a prior relationship, B born in 2011.
The proceedings were commenced by way of an Initiating Application filed by the Father on 9 July 2021. The Father seeks on both an interim and final basis in the Amended Application filed by him on 3 November 2021 an Order that the children live with the Mother. For the purpose of the proceedings the Mother is the uncontested resident parent.
On 5 August 2021 the matter was placed into the Evatt List and as such, strict time protocols apply including the matter being heard on a final basis within 12 months of filing.
THE ISSUES
Pursuant to the Minute of Orders Sought in the Father’s Outline of Case filed on 3 November, 2021 the Father sought Orders in summary that:-
(a)the parties have equal shared parental responsibility;
(b)that the children live with the Mother;
(c)that the children spend time with the Father on a fortnightly rotating basis so that in week one it is from 6pm Thursday to before school Friday morning and in week two it is from 6pm Friday to 4pm Sunday;
(d)that the children have further time with the Father for a block of 7 days during each school holiday period, for one half of all Islamic holidays/special days and on other special occasions;
(e)that the children communicate with the Father by Facetime each night between 6pm and 7pm with the Father to initiate such calls;
(f)that changeover of the children between the parties’ homes occur at the Suburb C McDonalds when not occurring at the children’s school/day care;
(g)mutual non denigration orders;
(h)that each party be at liberty to attend school events and obtain school notices and other information and to this end each party be at liberty to provide a copy of the Orders to the children’s school;
(i)that each party advise the other immediately of any medical issue arising with respect to the children;
(j)that the children be placed onto the Airport Watch List;
(k)that the Mother be restrained from allowing the children to have any contact whatsoever with Mr D and Mr E;
(l)that the Mother undertake an anger management course; and
(m)that the Mother obtain a comprehensive mental health report.
During the course of the interim hearing the Father proposed that the Court make Orders that the children spend time with the Father supervised by a private supervision agency on three occasions with each party to be responsible for one half of the costs, and thereafter in accordance with the orders sought in the Father’s Minute. The Father submitted that this would provide the Independent Children’s Lawyer with the opportunity to relist the matter in the event an issue arose during the first three supervised visits that caused the Independent Children’s Lawyer concern.
In support of such Orders, the Father relies on:-
(a)the Amended Initiating Application filed 3 November 2021;
(b)the Affidavit of the Father filed 3 November 2021;
(c)the Child Dispute Memorandum dated 14 September 2021(marked as Exhibit B); and
(d)material tendered during the course of the interim hearing.
The Respondent Mother seeks orders in accordance with the Response filed on 25 October 2021 that:-
(a)the Mother have sole parental responsibility;
(b)the children live with the Mother;
(c)orders be made restraining the behaviour of the Father pursuant to section 68B of the Family Law Act 1975 (“the Act”);
(d)the Father’s consent for the children’s passports to be issued is not required; and
(e)the children be removed from the Airport Watch List.
The Mother relies on:-
(a)the Response to Initiating Application filed 25 October 2021;
(b)the Affidavit of the Respondent Mother filed 25 October 2021;
(c)Notice of Child Abuse, Family Violence or Risk filed 25 October 2021;
(d)Child Dispute Conference memorandum dated 14 September 2021; and
(e)material tendered during the course of the interim hearing.
The Independent Children’s Lawyer’s proposed Minute of Order is contained within the Case Outline filed on 3 November 2021. Pursuant to such Minute of Order the Independent Children’s Lawyer proposes that:-
(a)the children live with the Mother;
(b)that the children spend no time with the Father or, in the alternative that the Father spend time with the children supervised at a contact centre;
(c)that each of the parties undergo hair follicle testing for the purposes of analysis of drug use; and
(d)that a family report be ordered.
During the course of submissions the Independent Children’s Lawyer advised the Court that she sought Orders that the children spend time with the Father supervised by a private supervising agent.
The Independent Children’s Lawyer relies upon the Child Dispute Conference Memorandum dated 14 September 2021.
Both the parties made concessions as to the Orders sought by the other and the Independent Children’s Lawyer during the course of the interim hearing. All parties agree that Orders will be made by consent pending further order that:-
(a)the children will live with the Mother;
(b)there be mutual non-denigration Orders;
(c)each party be at liberty to communicate with the children’s school and each receive school notices and newsletters;
(d)each party advise the other as to medical issues arising regarding the children;
(e)the parties are restrained from removing or attempting to remove the children from Australia and for this purpose the children’s names be placed onto the Airport Watch List;
(f)both parties submit to hair follicle testing as requested by the Independent Children’s Lawyer.; and that
(g)a Family Report be ordered.
Orders as to the preparation of a Family Report were made prior to judgment being reserved.
Thus the issues to be determined at this stage of the proceedings are:-
(a)should the children spend any time with the Father;
(b)if so, should such time be supervised, either at a professional contact centre or by a private supervision service;
(c)whether there should be in effect a mix of supervised and unsupervised time as proposed by the Father;
(d)should injunctive orders be made restraining the Mother from allowing the children to have any contact with Mr D and Mr E:
(e)should the Mother be restrained from changing the childrens’ address beyond a 5km radius of the Suburb C area;
(f)whether the Mother should be ordered to undertake an anger management course and a psychiatric evaluation; and
(g)whether orders should be made pursuant to Sections 68B and 68C of the Act restraining the Father from approaching or contacting the Mother or the children by any means together with the power to arrest.
BACKGROUND
The Father was born in 1985 and is currently 36 years of age.
The Mother was born in 1991 and is currently 30 years of age.
The parties were married in an Islamic ceremony in 2014 and pursuant to Australian law in 2015. The Mother asserts the parties separated in 2017 and thereafter until 2019 they had “on again off again” relationship until November 2019. They reconciled in February 2020 and then separated on a final basis on 5 April 2021 when the Father vacated the home.
The Father deposes that the parties did not separate for the first time until 2019 and at this time they had an Islamic divorce. On or around 27 February 2020 they reconciled and remarried under Islamic law on 10 March 2020 before separating on a final basis on 5 April 2021 when the Father vacated the home.
Both parties agree that the children have not seen the Father since he vacated the home on 5 April 2021.
On the 9 May 2021 a provisional Apprehended Domestic Violence Order was made for the protection of the Mother and restricting the behaviour of the Father. Such Apprehended Domestic Violence Order prohibited the Father from approaching or contacting the Mother in any way unless such contact is through a lawyer or as ordered by a Court with respect to time with the children.
On the 28 May 2021 the Father was charged with two offences in which it is alleged that the Mother is the victim, namely:-
(a)assault occasioning actual bodily harm; and
(b)install/use listening device to record a private conversation.
The Father has pleaded not guilty to such charges and the criminal proceedings are listed for a defended hearing on 22 April 2022 in the Local Court at Suburb C.
THE LEGISLATIVE PATHWAY
In deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration. The children’s best interests are ascertained by a consideration of the objects and principles in section 60B and the primary and additional considerations in section 60CC of the Act.
The primary considerations as set out in s60CC(2) are:
(a)the benefit to the children of having a meaningful relationship with both of their parents; and
(b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying these considerations, the Court must place greater weight on the need to protect the children from harm than on the benefit to them of having a meaningful relationship with both of their parents.
“Meaningful relationship” is not defined in the Act, but has been interpreted as “one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.”: Mazorski v Albright [2007] FamCA 520. The legislation does not focus on the relationship as such, but the benefit it might have for the children: Mulvaney v Lane [2009] FamCAFC 76 May & Thackray at [88].
The Court will make Orders that it considers will best promote the welfare of the children who are the subject of the proceedings, even if such Orders lead to what might be regarded as injustice between the parties: In the Marriage of Schenck (1981) FLC 91-023.
THE CONDUCT OF INTERIM HEARINGS
The Full Court in Salah and Salah [2016] FamCAFC 100 affirmed the now well settled pathway with respect to interim hearings as enunciated by Goode and Goode [2006] FamCA 1346. It also affirmed that the procedure for making interim orders would continue to be a truncated process in which the Court should avoid making findings based on contested facts, but rather look to agreed facts and issues not in dispute, whilst still following the legislative pathway.
Despite the Court’s limited ability to make findings in respect of controversial facts in interim proceedings, the Court is not relieved of the responsibility to determine risk. The Full Court in SS & AH [2010] FamCAFC 13 at [100] said:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The Court must also consider the Full Court’s statement in Marvel & Marvel (No 2) [2010] FamCAFC 101 namely, that where risk is alleged in interim proceedings, a conservative approach is warranted.
Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s. 61DB).
As this is an interim hearing reasons may be given in short form and only addressing the relevant considerations as presented by the parties.
PARENTAL RESPONSIBILITY
As the Court is being asked to make orders as to parenting, the first question to be determined is whether the presumption in section 61DA(1) of the Act that it is in the best interests of the children that the parents have equal shared parental responsibility is rebutted as either:
(a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence (s. 61DA(2)); or
(b)the proceedings are interim and the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order (s. 61DA(3)).
If the presumption is found to apply, it may further be rebutted by evidence that equal shared parental responsibility is not in the best interests of the children.
An Order for equal shared parental responsibility requires the parents to make together (and jointly) decisions about major long-term issues affecting the children.
Each of the parties in this matter has alleged that the other is a perpetrator of family violence. There is a Provisional Apprehended Domestic Violence Order for the Mother’s protection from the Father. The Father is subject to criminal charges of assaulting the Mother that are yet to be determined. The Mother makes extremely serious allegations of violence perpetrated upon her by the Father during the course of the relationship.
The Father alleges that the Mother was both physically and verbally abusive towards him during the relationship.
There has been no communication between the parties since the Provisional Apprehended Domestic Violence Order was made in April 2021.
Paragraph 18 of the Child Dispute Conference Memorandum to the Court dated 14 September 2021 reports that each of the parents described their relationship as toxic. It appears that there is a lack of co-operative relationship and effective communication between the parties and it would be difficult for them to consult and make a genuine effort to reach agreement about major long-term issues: Marvel & Marvel (No 2) [2010] FamCAFC 101 [103].
Having regard to the matters identified above I find that it is not appropriate at the interim stage of these proceedings for the presumption to be applied.
These are young children being four and six years of age. There is no evidence before the Court that any long term decisions are required to be made as to their care in the foreseeable future. In those circumstances it is appropriate that no orders be made as to the allocation of parental responsibility and thus each parent will continue to have joint and severable parental responsibility with respect to the children.
As no order has been made as to parental responsibility the Court is to make such orders in its discretion that are in the best interests of the child as a result of consideration of one or more of the matters in s60CC of the Act.
THE CHILDREN’S TIME WITH THE FATHER
Risk of harm to the children is a central issue in this case. The Father makes serious allegations as to the Mother's conduct during the course of the relationship. Such allegations include the perpetration of family violence by the Mother upon the Father. The Father further alleges that the Mother would physically chastise the children in an unacceptable manner and verbally abuse them.
It is difficult to reconcile the Father’s allegations with his promotion of a final Order that the children live with the Mother. The Father’s contentions as to risk can not be established nor can they be dismissed at an interim hearing. That said, in light of the relief sought by the Father on both an interim and final basis, the Court can proceed on the basis that the Father’s alleged concerns as to the care of the children in the Mother's household cannot be such that they are at significant risk. Thus, the focus of the risk issues at this time in light of the Mother’s allegations are with respect to what time, if any, the children should spend with the Father and the form such time will take.
The parties are in significant dispute as to the nature of the relationship between the children and the Father. The Father deposes that from the time of each of the childrens’ birth he assisted the Mother with their care. He deposes that the Mother would go out with her friends most Friday evenings and would leave the children in his sole care. The Father asserts that he has a close and loving relationship with both children.
The Father’s assertions are in stark contrast to the allegations and evidence of the Mother. The Mother asserts that during the relationship the Father was physically violent to both herself and the child X. It is the Mother’s evidence that the violence perpetrated by the Father was in the presence of both of the children. She alleges that as a result both children are extremely scared of the Father and have expressed strong wishes not to see him again. At paragraph 15 of the Mother’s Affidavit she deposes that X has said to her in the “lead up” to October 2021 words to the effect of:
My father is dead to me. I hate him.
I have no father.
I do not ever want to see that man again.
The Mother deposes that Y said to her words to the effect of
Dad is a bad man. I want a new Dad.
Dad makes me cry and you cry.
Dad upsets me.
In paragraph 42 of the Mother’s Affidavit she deposes that from approximately 2017 when X was 2 years of age he began reacting to the Father’s violence against the Mother rather than just observing it. The Mother asserts that when the Father was hitting or punching or grabbing the Mother, X would attempt to intervene by grabbing the Father’s leg or arm and trying to pull him away. X would be crying and saying words the effect of “Stop Daddy”, “Go away. Leave mummy alone”, “Go away, just go to work.”
The Mother further deposes that upon X commencing to intervene in the altercations between the Father and herself, the Father became physically violent towards X. Such violence it is asserted included the Father pushing and shoving X’s back, pulling his hair, grabbing his ears and arms, shaking him, screaming and swearing at him. X would thereafter commence to cry and the Father would say to the Mother words to the effect of “Control your son. Tell him to listen”. At paragraph 44 of her Affidavit, the Mother deposes that after the Father had been physically violent towards X he would run and hide behind the Mother saying words to her such as “Daddy naughty” and “Daddy hit me”.
The Mother deposes that as a result of the Father’s violence towards X she did not leave the children alone with the Father from approximately 2017, subject to one occasion approximately every 6 months when she attended a dinner with friends. The Mother deposed that prior to leaving she ensured that the children were fed and asleep in bed.
The Mother alleges that when attending with X at school via Zoom on the 25 August 2021 during English class the children were asked to describe their Father using adjectives. The Mother deposes that X said to his teacher words to the effect of “Can I talk about my Mum instead” and then turned to the Mother and said words to the effect of “I just hate him. He was always so mean” The Mother alleges that X was crying as he said those words to her.
The Mother deposes that on 2 September 2021 she was checking X’s mobile phone and noticed that the Father's telephone number had been deleted from his contacts. Upon asking X about this he said to her: “I deleted his number. I do not want to see his name or his messages anymore because he is not in my life.” The Mother further alleges that on 21 October 2021, X said to her words the effect of “It is so much better we don't see Dad everywhere we go. He doesn't rock up everywhere.”
The Mother alleges that the Father has perpetrated extremely serious acts of family violence upon her. This violence was sexual, physical and verbal in nature.
The Mother alleges that the Father would physically force her to have sex with him on a regular basis throughout the relationship. The Mother deposes that if she resisted, the Father would call her names, pull her hair and threaten that if she did not have sex with him he would tell her family she was a “slut” or post videos of them having sex on social media. The Mother further alleges that the Father demanded that the Mother perform fellatio on him approximately once a fortnight. It is the Mother’s evidence that
Often I was crying as I was performing fellatio on Mr Pachris. He grabbed my hair at the back of my head and slam my face into his penis. Sometime he put his hands around my throat and squeezed, choking me while his penis was in my mouth and I struggled to breathe. Sometimes I thought I was going to die. [1]
[1] Affidavit of the Mother filed 25 October 2021 paragraph 47.
The Mother deposes from 2017 the Father forced her to perform fellatio on him approximately once a week.[2] The Mother asserts that the Father required her to perform fellatio on him prior to leaving for her six monthly dinner with friends.
[2] Ibid paragraph 83.
It is the Mother’s evidence that according to her faith it is forbidden to engage in anal sex “it is a sin and a great shame and indignity.” The Mother deposes that on approximately 12 occasions from 2019 to 2021 the Father forced anal sex upon her by grabbing her and holding her. She deposes that on one such occasion he
put a pillow over my head to muffle my screams and I could not breathe. Whilst having anal sex with me he said to me words to the following effect: ‘just keep trying it’ and ‘ shut up and take it.’ [3]
[3] Ibid paragraph 84.
The Mother deposes that in addition to the great indignity she suffered as a result of these actions it was also incredibly painful for her – she could not sit for days after each occasion and had difficulties with bowel movements.
It is the Mother’s evidence that the Father would engage in sexual activity with her in front of his daughter from a prior relationship, B saying to the Mother: “she is my daughter and I do what I want in front of her.” The Mother asserts that the Father forced her to perform fellatio on him or otherwise engage in non-consensual sexual activity in B’s presence.
The Mother alleges that the Father was first physically violent towards her when she was pregnant with X in 2015. She alleges that during the course of an argument the Father pushed her by her shoulders, slammed her back against the wall and screaming abuse at her such as “you fucking dog.”
The Mother alleges that when she was approximately 8 months pregnant with X during the course of a verbal argument the Father lifted his left leg and kicked her stomach. She dropped to the floor in pain. The Father immediately came to her and bent down and said: “Are you all right? Is the baby okay?” The Mother deposes that she went to bed and cried herself to sleep.
The Mother alleges that from the time X was born the Father was physically violent towards her at least once to twice per week and that on these occasions he grabbed, pushed, kicked and hit her. This occurred according to the Mother in the presence of X and later, Y.
The Mother alleges that when the family were in the car and he was driving the Father would swerve the car and say:
if you do not listen to me, I am going to kill us all. You are just a fucking dog.
The Mother further alleges that the Father has engaged in coercive and controlling behaviour. She deposes that such behaviour included calling her every hour whilst at work and questioning her as to where she was and who she had seen. She asserts that the Father did not allow her to join a gym. She alleges that the Father tracked her IPhone and sent her photos of maps with her location pinned. If she wished to meet friends or family she would have to provide the Father with details of where she was going, who she was going to be with and the exact time she was going to be home. She would be required to provide to the Father a photo of herself when she arrived at her destination and to answer the Father’s video calls at any time he called her.
The Mother deposes that on the occasions she did not answer the video calls there would be a tirade of abusive text messages and further phone calls. Upon the Mother arriving home she would be subjected to physical and sexual assaults. The Mother deposes that the Father would go through her wardrobe, handbag and mobile phone on a weekly basis. Whenever she received a telephone call she asserts that the Father demanded that she place the call on speaker phone.
The Mother asserts that in 2018 she and the Father were having an argument during which the Father said to her
I will kill you in your sleep. At least you won’t feel it. It will be an easy death.
The Mother deposes that subsequent to this statement she had many sleepless nights fearing for her safety.
The Mother deposes that on or about 8 March 2019 the Father was verbally abusing her after arriving home from work as the children had not been put to bed by the time he arrived home. She alleges that upon going out to the balcony the Father followed her out and said to her
You are nothing but a fucking liar and a dog
Tell me – who did you see today? I am going to find whoever you were with then deal with them.
Give me your phone you little slut. Gimme it, you whore.
It is the Mother’s evidence that she placed her phone down her shirt and sat with her head down and knees against her chest on the floor whereupon the Father kicked her in the head and then left the apartment. Subsequent to the Father leaving the apartment she attempted to go back into the apartment but had been locked out. It was cold and her mobile phone battery had died. The 2 and 3 year old children were asleep inside the apartment. The Mother alleges that she became so frightened that she urinated on herself. After an hour the Mother was able to obtain the attention of a passer-by and arrangements were made for her to be released from the balcony.
The Mother alleges that on the 13 March 2021 the Father physically assaulted her in the presence of the children. This alleged assault included the Father grabbing the Mother’s throat with one of his hands and squeezing it, punching the Mother in the arm and kicking her leg, causing the Mother to drop to the floor. The Mother further alleges the Father verbally abused her in front of the children saying things including “This is war. It’s the end of you…Your life is over today.” The Mother alleges that whilst pretending to be asleep after such assault she observed the Father place a device onto the top of the fridge. The device had an “on” button and there was a red light flashing. She turned the device off and delivered it to her mother’s home for her brother-in-law to investigate.
As a result of this alleged incident on 13 March 2021 a provisional Apprehended Domestic Violence Order was taken out for the protection of the Mother and restricting the behaviour of the Father.
Annexed to the Mother’s Affidavit are various postings made by the Father on social media. These include postings such as:
Fkd u b4 I wfd u
You took my life so now I am going to take yours
Allah is the best of planners, dont socialise and mingle while you are married, end it right and then make it halal, guard ur honour
Bitch shut da fuck up before iput the phone calls out before u were on n my dick before give you smthn to smile about eminen diss mariah
Expect the unexpected, u can cheat and deceive me but you cant deceive allah, go for gold mercedes black benz should of went for a ferari
Expect the unexpected, u will die and return to allah in the state of death that you have fallen to,, allah best of planners, get ready
The Mother asserts that the Father’s postings are about her.
The Father denies this and asserts that they are simply song lyrics. Even accepting the Father’s assertion, I agree with Counsel for the Mother that they depict concerning views held by the Father.
It is the Mother’s evidence that the Father has abused steroids and that she observed him injecting himself with steroids on an almost daily basis. She asserts that she saw him take pills every day, although she is unaware as to what they were.
The Father categorically denies all the allegations made by the Mother. He asserts that there are serious credit issues and a complete lack of corroborative evidence to support the Mother’s assertions. Whilst the Father quite properly concedes that it is not unusual in matters of family violence for there not to be corroborative evidence, it was submitted on the Father’s behalf that it “beggars belief that she never reported the domestic violence nor that it was not seen by anyone else.”
The Father submits by way of example that the Mother made a statement to the Police in April 2021 relating to an alleged assault on 13 March 2021, but does not address in any way in her evidence the taking of “happy” photos of the couple the next day (being the 14 March 2021), such as those annexed to the Father’s Affidavit and described by the Father as “Ms Tajir and I hugging and in good spirits”. The Father further attaches purported messages between the Mother and the Father on 13 March 2021 “with no mention of an alleged assault.”
This is an interim hearing and as such my task is to ascertain the nature and degree of risk to the children spending time with the Father. It is not to determine whether the Mother or the Father is telling the truth. In such assessment of risk however, it must be observed that the taking of a photograph of an apparently happy couple at a particular point in time does not preclude an incident of family violence occurring at any other time. Family violence can occur within the home; away from witnesses. Survivors of family violence may very well try to continue on with life as normally as they can subsequent to an assault. The circumstances surrounding the taking of such a photograph will be the subject of tested evidence at the Trial.
The Father further deposes as to the parties’ active consensual sex life during the course of their relationship. It appears that this evidence is given so as to “prove” in some way that the allegations made by the Mother can not be true, even at an interim hearing stage. Even if the Court found as a matter of fact at a final hearing that the parties engaged in consensual sexual relations during the course of the relationship this would in no way preclude a finding being made that non-consensual sexual relations occurred and that one party perpetrated a sexual assault or assaults upon the other.
The Father’s submissions were misconceived in that they promoted a finding of fact or credibility as between the parties in a truncated interim hearing. I must look at the allegations and identify the risk and then assess whether such risks can be ameliorated. The credit and veracity of each party’s account will loom large at the final hearing of this matter.
The Mother raises extremely serious allegations in this matter. Such allegations involve not only that the Father has sexually, physically and verbally abused the Mother, but that some of these incidents have occurred in front of the children, including the Father’s child from a prior relationship. It is my view that at this time, such allegations raises serious risk issues for the children were they to spend time with the Father pending a final hearing.
The Mother alleges that the Father has physically assaulted X and deposes that X has expressed clearly to her that he is scared of the Father. She further alleges that Y told her that she feels the Father is a bad man, and that he upsets her. In those circumstances, I am not satisfied that the potential risk the Father poses to the children at this interim stage would be sufficiently ameliorated by ordering that the children’s time with the Father be supervised.
In circumstances where there is no objective evidence before me as to the children’s relationship with the Father, I am not prepared to make any Orders on an interim basis as to the children spending time with the Father. If the Mother’s allegations are found to be true, this would be requiring X to spend time with someone who has occasioned physical assaults upon him. For both children it would mean they would be potentially spending time with someone they have observed physically assaulting their Mother and with whom they have advised they are scared of. This can not be in their best interests. Objective evidence is required to ensure the children’s best interests are met prior to making any such Orders.
I am not satisfied that the proposal of the Father that the children spend time with him on 3 occasions supervised on the basis that if an issue arises the Independent Children’s lawyer could relist the matter is in the children’s best interests. Whilst submitted by the Father that this is not the case, this is in effect an experiment on the children – it is requiring them to spend time with the Father on three occasions supervised so if there is an adverse reaction from the children or something else that occurs that places the children at obvious risk, the Independent Children’s Lawyer will be at liberty to bring the matter back before the Court. I am not satisfied having regard to the allegations raised by the Mother as particularised above in these reasons, that such an Order placing the children in this situation is in their best interests.
INJUNCTIVE ORDERS REGARDING THE MOTHER’S BROTHERS
The Father alleges that the children are at risk from coming into contact with the Mother's two brothers namely Mr D and Mr E. The Father seeks an Order restraining the Mother from allowing the children to come into contact with them. The Father alleges in his Affidavit that during the course of the relationship both of the Mother's brothers were charged with firearms offences and with perpetrating violent assaults. The Father further alleges that in 2018 Mr E physically assaulted the Mother and an Apprehended Violence Order was taken out for her protection. The Father deposes that he recalls seeing severe bruising on the Mother's face following this assault.
During the course of oral submissions the Mother conceded there was an incident between herself and her brother Mr E in 2018. The Mother's Affidavit is silent as to any Apprehended Violence Order made protecting her from either of her two brothers. She deposes at paragraph 13 of her Affidavit that she has a very close and loving relationship with her extended family including her brother's Mr D and Mr E.
There does not appear to be any dispute as to the assertion of the Manager, Casework from the Department of Communities and Justice in a letter to the Court dated 2 November 2021 (Exhibit A) that:
the mother’s uncle assaulted the mother in the living room, in the presence of the children. X (aged 2) and Y (aged 1) ran up to their mother while she was being assaulted. The children were not injured in this incident, but their mother took a punch to her nose, and it was bleeding when Police arrived…..There is a current AVO in place against the Uncle, Mr E, prohibiting him from approaching within 100 metres of the premises, and accordingly he was charged with a breach of the AVO.
The Father alleges that in September 2019 he found the sum of $30,000.00 cash concealed in one of the Mother's makeup bags. When questioned by him the Mother told the Father that it belonged to her brother, although it does not specify which particular brother the Mother was referring to. The Father deposes that in December 2020 he found a further $40,000.00 cash hidden in the sofa of the former matrimonial home in a grey zipper bag and when questioned again the Mother said that it was her brother's money. The Father's Affidavit does not state which of the brother’s money this allegedly was.
Having regard to the allegations raised by the Father in these proceedings I am satisfied that to protect the children an order should be made restraining them from coming into contact with the maternal uncles Mr D and Mr E until final Trial.
RESTRAINT UPON MOTHER RELOCATING
The Father seeks an Order from the Court that the Mother be restrained from changing the children’s residence beyond a 5km radius of the Suburb C area. The totality of the Father’s evidence to support such a draconian Order is to be found in paragraph 30 of the Father’s Affidavit which states, in its entirety:
I have a genuine fear that Ms Tajir will relocate to Melbourne with the children without my consent as she often said to me words to the effect of: “I’m going to leave and go live in Melbourne and then you will never see the kids” and “I’ll move states, get a boyfriend and go as far away from you as possible so that you don’t see the kids.
No submissions were made on the Father’s behalf at the interim hearing to support the injunctive order sought.
The Mother denies ever threatening to relocate to Melbourne or interstate with the children. She deposes that she has no intention of relocating from Sydney and all her friends and family are located in Sydney.
I am not satisfied there is adequate evidence to ground the Order as sought by the Father and I decline to make such an Order.
SECTION 68B INJUNCTIVE ORDERS
Having regard to the very serious allegations made by the Mother in these proceedings it is appropriate to make the injunctive orders as sought by her pursuant to section 68B and section 68C of the Act.
PSYCHIATRIC EVALUATION
No submissions were made by the Father in support of the Orders sought by him that the Mother obtain a psychiatric evaluation.
I agree with the submissions made on behalf of the Wife that there is simply no evidence before the Court to ground the Order as to a psychiatric evaluation. I am unaware as to the head of power relied upon by the Father to ground this relief sought. No submissions were made by the Father in any event to support such an Order being made. I refuse in those circumstances to make such an Order.
ANGER MANAGEMENT COURSE
Although the Father seeks an Order that the Mother undertake an anger management course no submissions were made by the Father to support the Order sought. Having regard to the extremely serious allegations raised by the Mother in these proceedings such an Order in any event would, if such allegations are found to be true at a final hearing, potentially occasion a further trauma upon the Mother – the uncontested resident parent in these proceedings. I refuse to make such an Order.
CONCLUSION
Whilst this will understandably cause the Father upset, the truncated nature of an interim hearing and the very serious nature of the allegations raised by the Mother requires me to act conservatively. The Orders made today are by no means determinative of the orders that will be made by the Court after a final defended hearing when the Court has the assistance of hearing evidence from the parties.
In circumstances where there is no objective evidence before me as to the nature of the children’s relationship with the Father, I must at this stage of the proceedings make no Orders as to time between the children and the Father. As a consequence, the matter will be expedited to a final hearing as soon as possible. To this end, Trial Directions will be made today and the matter allocated final hearing dates.
Orders will be made accordingly.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 24 November 2021
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