Paterson & Hamdy (No 3) - [2023] FedCFamC1F 629

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Paterson & Hamdy (No 3) [2023] FedCFamC1F 629

File number: SYC 1229 of 2018

Judgment of: BRASCH J

Date of judgment: 31 July 2023

Catchwords: FAMILY LAW - PARENTING – Where children have not seen or spoken with the father since 2016 – Where father convicted of and jailed for offences – Where children express strong views to not see the father – Where children’s views remain unchanged over three Family Reports – Where mother is the unchallenged residential parent – Where father claims mother has brainwashed the children regarding their views of the father – Where one child turns 18 years soon – Where dispute ultimately concerns younger child

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Part VII, ss 60B, 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(2A), 60CC(3)(a)-(m), 61DA, 61DA(4), 65D(1), 65DAB

Cases cited:
Cotton & Cotton (1983) FLC 91-330

G & C [2006] FamCA 994

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Line & Line (1997) FLC 92-729

Loddington & Derringford (No 2) [2008] FamCA 925

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

R & C [1993] FamCA 62

Re Andrew (1996) FLC92-692; [1996] FamCA 43

Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142

Vigano & Desmond [2012] FamCAFC 29

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Division: Division 1 First Instance

Number of paragraphs: 158

Date of hearing: 1–4 May 2023

Place: Sydney

Counsel for the Applicant: Mr Duc

Counsel for the Respondent: Ms Druitt

Solicitor for the Respondent: John Spence & Associates
ORDERS

SYC 1229 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR PATERSON

Applicant

AND:
MS HAMDY

Respondent

order made by:

BRASCH J

DATE OF ORDER:

31 JULY 2023

THE COURT ORDERS THAT:
1.The mother has sole parental responsibility for the children, X born 2005 and Y born 2010 (“the children”).
2.The children live with the mother.
3.The children have no contact, spend no time with and have no communications with the father.
4.Until Y born 2010 turns 18 years of age, being 2028, the father is restrained and injunctions hereby issue restraining the father from:
(a)assaulting, molesting, harassing, denigrating or abusing the mother or either child;
(b)approaching or being within 200 metres of either child or the mother;
(c)being within 200 metres of any school that either child attends;
(d)being within 200 metres of the mother’s residence;
(e)being within 200 metres of the mother’s or child’s place of employment;
(f)contacting or responding to the children by any means whatsoever including but not limited to electronic means, social media or through any third party, other than as specifically provided for in these Orders;
(g)contacting the mother by any means other than through her legal representative; and
(h)permitting or allowing the children or either one of them to enter or remain in any premises which the father may occupy.

5.A copy of these orders may be provided by the mother to the children’s schools and extra-curricular activity providers.
6.The Court requests the Australian Federal Police forthwith remove the names of the children, X (female) born 2005 and Y (male) born 2010 from the Family Law Airport Watchlist in force at all points of arrival and departure by air or sea in the Commonwealth of Australia.
7.For the purposes of s 11 of the Australia Passports Act 2005 (Cth), the mother shall be permitted to apply for an Australian travel document for the children, X born 2005 and Y born 2010 and the mother’s signature and consent alone shall be sufficient to apply for all travel documents.
8.The mother may provide a copy of these orders to all government authorities responsible for, or involved with, overseas travel and travel documents.
9.Pursuant to s 65Y of the Family Law Act 1975 (Cth), the mother be permitted to travel with the children outside the Commonwealth of Australia, without requiring the consent of the father.
10.The parties are restrained from denigrating the other party or members of the other party’s family to the children or in the presence or hearing of the children.
11.That parties are restrained from discussing these proceedings with the children or showing the children any document relating to the proceedings save for the mother being permitted to tell the children that:
(a)the trial has ended;
(b)they will not spend time or communicate with the father;
(c)the father is not to approach or contact them or their mother; and
(d)their voices were heard.

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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J:
INTRODUCTION

The parties in this parenting dispute have two children; X was born in 2005 and Y born 2010 (“the children”). Plainly, X will soon turn 18 years. In the early stages of the trial, the father sensibly decided not to seek orders about her. Y is 13 years of age.
X has not seen the father since 2016[1] when she visited him in prison. She was then just 10 years old. Y last spent time the father in 2015 being the day before the father was incarcerated. He was five years old.
[1] The dates with respect to the children’s contact with the father have been taken from the Specific Issues Report dated 27 January 2023 (Exhibit 3) as neither party made reference to specific dates in their respective material. It was confirmed with the father in cross-examination that these were the last occasions he saw the children.
The children last spoke to the father in 2016 when he was in prison. Obviously, that is seven years ago.
As to his imprisonment, the father told the court that in or about 2008 he had amassed some debts to some unspecified people. Between 2008 and 2011, those nameless people then “forced” him to do the things of which he was convicted. He spoke of being, essentially, abducted by these people, taken to a unit and had a knife held to his stomach. To repay his debt, he said these unspecified people directed him to undertake criminal activities.
This was at a time where the father maintained he and the mother were living together in a full‑time committed relationship and with the children. The mother disputes this saying their relationship was on again and off again. Yet, on the father’s case, he was involved in criminality whilst living with the mother and the children, thus also exposing them to the prospects of reprisals arising out of his debts.
Turning to these parenting proceedings, the children have expressed clear views that they do not want to see the father. There have been three Family Reports produced in this matter and the children’s views have not changed. Indeed, their views have hardened. In the most recent report, being the Specific Issues Report dated 27 January 2023 (Exhibit 3), X was reported as saying that “she has no relationship with her father and emphasised that ‘I don’t want one’” (Exhibit 3, paragraph 16). Similarly, this was attributed to Y: “I don’t remember him, who’s my Dad?” and explained that he cannot remember anything about his father, including what he looks like (Exhibit 3, paragraph 19).
Both children also spoke very clearly about wanting court to be over, and to be left alone by the father. X was reported as saying, “this [Court] has been my whole childhood, I want to be left alone”. She said that her father needs to be told “no more appeals” and “that someone needs to tell her father ‘what no is’” (Exhibit 3, paragraph 17).
Y was also reported saying “it is not nice having to come to Court ‘for the third time, I don’t want to come again’” (Exhibit 3, paragraph 18). Further, “his message to his father is ‘Leave me alone’ and his message to the Court is that he no longer wants to be involved and ‘for the Court to be over’”. “He said that if he had a magic wand, he would want Court to finish” (Exhibit 3, paragraph 20).
However, the father maintained that the mother has brainwashed the children into taking a stance against him. He blames the mother for the children’s views. He does not accept that the passage of time since the children have seen him is a relevant consideration. Consistently, the father does not accept a skerrick of truth in what the children said in the three Family Reports – he accepts they said what is reported, but as a product of the mother’s brainwashing.
Orders sought
The applicant father seeks orders that Y spend three months of supervised time with him on a fortnightly basis, then, three months of supervised time on a weekly basis. For a third tranche of three months, the father proposes Y spend four hours every alternate Sunday with him. At the conclusion of that third three months, the father proposes that the child spend alternative weekends with him, from after school Friday until before school Monday.
The father also proposes Y spend half holidays with him. He sought orders for equal shared parental responsibility with respect to Y.
The mother’s case is that the father was a criminal and had long been violent to her when together. It is also her case that the passage of time since the children had seen the father was a relevant consideration. The mother denies brainwashing the children. In any event, the mother’s case was that no matter how the children have formed their steadfast views about not wanting to see the father - that is their reality. Consequently, it was also the mother’s case that consistent with the Family Report, and in particular, the very recent Specific Issues Report, forcing the children to have time with the father would have a negative impact on them and thus not be in their best interests. The mother also relies on the principle from Re Andrew [1996] FamCA 43 (“Re Andrew”) in making the case that, if time were ordered, her ability to parent would be compromised and the peace and tranquillity in her house eroded; see also R & C [1993] FamCA 62.
The mother’s case is that the children have no time and communications with the father at all. She sought a range of injunctions, until Y turns 18 years, restraining the father from, inter alia, approaching or contacting them. The mother also sought orders to obtain passports for the children without the need for the father’s signature, and, orders permitting the mother to travel with the children outside of the Commonwealth of Australia.
BACKGROUND
Ms Hamdy (“the mother”) was born in 1969. Mr Paterson (“the father”) was born in 1971. The father says the parties commenced their relationship in 2003 and married in 2004.
In 2004 the father says the parties moved to City J where he was working. In 2005 the father says the mother returned to Australia after the father identified mental health issues for the mother.
Two months later the father returned to Australia after, he says, the mother gave him an ultimatum to return, or not see the children – but no children were born at this stage. The mother denies this. I do not need to decide this. Instead, for whatever reason, the parties ended up back in Australia and then had a full-time marital relationship according to the father, or an on‑again-off-again relationship according to the mother.
The father said the parties then lived in various locations including: Perth, Western Australia; Region K, Queensland; and, multiple locations in New South Wales being Suburb L, Suburb M, Suburb N and Suburb P. The mother denied she lived with the father in any of these locations but would take X and Y to visit the father. I also do not need to decide this save that I accept that the children had a relationship with their father in this period.
The father asserts the parties separated on a final basis in July 2017. The mother said final separation was in July 2015. I do not need to decide when they separated. The reality is the father was incarcerated in 2015 and the children have not seen or spoken to him since 2016 (Exhibit 3, paragraph 5).
Between 2015 and 2019, the father was incarcerated for “small […] allegations and charges”; see father’s Case Outline at page 2. I appreciate a Case Outline is not evidence, but it is akin to a submission and one that minimises why the father was jailed. The father, not his legal representative, signed the Outline. The father was in fact convicted of several serious charges.
The father was sentenced to:
…an aggregate term of imprisonment […] to commence [in] 2015 and expiring [in] 2021 with a non-parole period […]. The offender is first eligible for parole [in] 2019. The offender is to be released to supervised parole when the non-parole period expires…
(Exhibit 8, p.1).
The father was very quick to answer, as often as he could (even if non-responsively), that he had leave to appeal both the convictions and the sentence. He was invited to produce documents to support that and was given overnight to do so. The documents produced (Exhibit 10) reveal the father was granted one extension to appeal out of time in mid-2018. The extension to file was extended to late 2018. Later that month, the Registrar of the Court of Criminal Appeal refused leave to file an appeal out of time.
In other words, there is no actual appeal in the New South Wales Court of Criminal Appeal. When subsequently asked about this in cross-examination, the father then said he is planning to appeal, and that “you can lodge an appeal anytime you want”. At best, he could file a further application for leave to appeal out of time, and, considerably out of time.
Both the mother and the father’s counsel quite properly accepted that I would not go behind those convictions. The father has been convicted and that is a fact until and unless those convictions are quashed.
In the lead up to the criminal proceedings, a search warrant was executed upon the residence in which the mother and the children lived. The father was asked whether he thought that might have had an impact on the mother and children. He replied the impact would not be “that huge” and spoke, unhelpfully, about Bill Clinton who smoked marijuana. This is one example of the father’s lack of insight into the effects of his conduct on the children and the unchallenged residential parent.
Background to legal proceedings
On 28 February 2018, the father filed an Initiating Application for Final Orders in the Federal Circuit Court of Australia (as it was then). The mother filed her Response to Final Orders on 1 November 2018. The matter has then had a long and convoluted pathway through the Courts. I do not need to recite all that has gone on, suffice to say:
·On 3 June 2019 the parties and children participated in a Child Inclusive Conference (“the CIC”);
·On 28 June 2019, the Court requested Legal Aid provide an Independent Children’s Lawyer (“the ICL”) for the matter. That occurred;
·On 28 January 2020, an order was made for the children to spend supervised time with the father, however B Contact Service declined to take up that request. The father says that was because the mother sabotaged the supervision of time by advising the service that the father would “kidnap” the children should they attend the service with the father. This was not put to the mother. No one asked me to determine whether this occurred or not, and the bottom line is that time with the children did not occur, for whatever reason;
·The father filed an Amended Application in a Case (as it was then) on 6 August 2020 seeking:
1.The Response and all other material and affidavits filed by the respondent [Ms Hamdy] Shall be dismissed. Also all past orders of the Court including the order made by consent for the children to live with the mother Shall be dismissed and cancelled.
2.The interim orders filed by the Applicant the Father on the 24^th of June 2019 Shall become final orders.
3.The respondent [Ms Hamdy] and her father [Mr Q] Shall be referred to the Criminal Prosecutor for Perjury and other criminal offences which are Defrauding Centrelink, Suborning Perjury, Defrauding legal aid and making False claims.
4.The day to day care of the Children Shall be transferred to the father and the children Shall live with the father if the mother has to serve time in custody for the offences she committed.
(As per the original)
(Amended Application in a Case filed 6 August 2020, p.2)
·That Amended Application in a Case was dismissed on 19 August 2020. Further, orders were made pursuant to s 102NA of the Act prohibiting the parties to personally cross‑examine one another and another Family Report was ordered;
·The father filed an Application in a Case (as it was then) on 22 October 2020 seeking to delay the interviews. That application was dismissed on 5 November 2020;
·The matter was transferred to the Family Court (as it was then) by orders of 22 April 2021;
·On 23 December 2021, a Senior Judicial Registrar ordered the ICL be discharged. It was noted that the father had brought an application to discharge the ICL. The ICL advised the Court he felt his role was compromised and was unable to continue to act. The mother consented to the discharge of the ICL. The parties agreed a new ICL was not required;
·The father filed an Application for Review on 10 January 2022 against the orders made on 23 December 2021 dismissing the father’s Application in a Case filed on 22 April 2021 with respect to time spending, family therapy and other procedural orders. That application was dismissed on 1 April 2022;
·An appeal was filed by the husband on 14 April 2022 against the orders made on 1 April 2022 dismissing his Application for Review and the costs order made in favour of the mother with respect to that application;
·The father filed an Application in Proceeding on 21 April 2022 seeking a stay of Order 3 of the 1 April 2022 orders, being a costs order against the father, pending the outcome of his Appeal;
·On 28 April 2022, I made orders staying the costs order made on 1 April 2021, pending the appeal filed 14 April 2022 being determined, dismissed, discontinued or abandoned;
·On 27 June 2022, the father filed an Application in a Proceeding, then brought an Amended Application in a Proceeding on 21 July 2022, seeking the mother comply with the subpoena filed on 28 April 2022 for her to produce documents;
·On 29 July 2023, the Federal Circuit and Family Court of Australia, Division 1 Appellate Jurisdiction refused leave for the father to file an Application in an Appeal dated 28 June 2022 seeking to put forward further evidence with a supporting affidavit, and dismissed the Appeal;
·On 11 August 2022, the father filed an Application for Review, with respect to orders made on 22 July 2022 granting leave to the mother to file a Notice of Objection to Subpoena;
·On 26 August 2022, Justice Baumann dismissed the father’s Application for Review filed 11 August 2022;
·On 12 September 2022, the mother filed an Application in a Proceeding seeking orders permitting the mother to obtain passports and travel with the children to an unspecified location without the father’s consent. This application was dismissed by me on 30 September 2022; and
·The father filed an Application for Review on 29 September 2022 of orders made 16 September 2022, which concerned setting aside subpoena issued to the respondent at the applicant’s request on 28 April 2022. The father filed a Notice of Discontinuance on 12 October 2022.

The trial commenced on 1 May 2023, being a Tuesday. On the last day of trial (a Friday), the father’s counsel was instructed to tell me the father was unhappy with questions I had asked him on Tuesday morning (the first day of the trial). The first question was to the effect that if I accepted the father’s case that the mother has brainwashed the children and done so for eight or so years, then how would the time he proposed work. At the time, the father replied he thought time would be positive and he would talk about school. I then asked the father what he would do if Y walked in to the contact centre and said, say, “I hate you” - which might be consistent with the father’s case of brainwashing. He said he would take it slowly. Both counsel were given the opportunity to cross-examine on anything arising out of my questions at the time. No further questions were asked.
On the Friday, the father’s counsel stressed he (counsel) understood my questions were hypothetical and I was not prejudging. I indicated to the father’s counsel that if (and stressed if) I found the mother had brainwashed the children for eight years, as is the father’s case, then I would need to then consider how time would work. I indicated that if I made the findings the father sought about brainwashing, then it would be procedurally unfair to the father not to give him the chance to address the consequences of that in terms of how his time might work with completely brainwashed children. Twice I asked counsel for the father whether he had an application arising out of the father’s unhappiness with my questions that I had asked several days beforehand. No application was brought. The trial continued.
Material relied upon
Both parties filed Case Outlines and Costs Notices.
The father relied upon:
·Amended Initiating Application for Final Orders filed 28 April 2022;
·Amended Notice of Risk filed 24 June 2019;
·Affidavit of the father filed 28 April 2023 and Annexures 5 – 11 only;
·Affidavit of the father filed 6 April 2020 paragraph 10 and Annexure 3 only;
·Affidavit of father filed 6 April 2020 (“Psychologist Affidavit”);
·Affidavit of Mr R filed 16 April 2023; and
·Minute of Order filed 28 April 2023.
The mother relied upon:
·Affidavit of the mother filed 15 March 2023; and
·Affidavit attaching Psychological Report prepared by Ms S filed 26 April 2023.
During the course of the trial 12 Exhibits came into evidence, inclusive of the following Expert reports:
·Child Inclusive Conference Memorandum prepared by Ms C, dated 3 June 2019;
·Family Report prepared by Ms C, dated 17 December 2020; and
·Specific Issues Report prepared by Ms T, dated 27 January 2023.
The standard of proof in this case is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject-matter of the proceeding; and
(c)       the gravity of the matters alleged.
It is well settled that it is not necessary for a trial judge to refer to every piece of evidence or argument presented during the trial in reaching a decision. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
LEGAL PRNCIPLES
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 65D(1) of the Act provides that this court may make such parenting orders as it thinks proper, subject to ss 61DA (equal shared parental responsibility) and 65DAB (re parenting plans and thus irrelevant here). Section 60B of the Act sets out the objects and principles of Part VII as follows:
The objects are to ensure that the best interests of children are met by:
•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
•protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
•ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
•ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons (2019) 266 CLR 554, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted at [8] that the focus of the objects was on “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”.
Parental responsibility
The father sought an order for equal shared parental responsibility with respect to Y. The mother sought an order for sole parental responsibility.
The presumption of equal shared parental responsibility in s 61DA of the Act 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”; s 61DA(4).
The father and mother have not communicated since 2016. The father quickly added this was “her doing”. The father also seeks equal shared parental responsibility in circumstances where the father has accused the mother of brainwashing the children at every turn. It is hard to see how he could trust anything the mother might say if they were attempting to communicate over major long term decisions.
It is impossible to see how equal shared parental responsibility would be in any way be in these children’s best interests. First, the parties have not communicated for many years. Second, the father’s strident belief about the mother brainwashing the children and his complete lack of trust in her means it would be impossible for the parents to come together and make major long term decisions in a cooperative way. As is demonstrated later, compromise is not within the father’s skill set, but blame and complaints certainly are. Third, s 60CC(3)(l) tells me that I must consider making orders that are least likely to result in further litigation. Given the parents complete lack of communication and trust in the other, I comfortably find that if I made an order for equal shared parental responsibility, there would likely be litigation the first time a major long term decision had to be made. The children need the litigation to end.
In other words, an order for equal shared parental responsibility is not in the children’s best interests. Conversely, there is no cogent evidence before me that the mother’s major long term decision making for the children has caused any detriment to them. I have no doubt the father would fervently disagree with that, but he has failed to persuade me that is so.
As I have not made an order for equal shared parental responsibility, I am not mandated to follow s 61DAA of the Act, which would otherwise require I consider equal time, and significant and substantial time.
Best interests of the child
Section 60CA of the Act provides that “[i]n deciding whether to make a particular parenting order in relation to the children, a court must regard the best interests of the children as the paramount consideration”.
The best interests of a child are determined by an examination of the considerations set out in s 60CC of the Act. In Tibb & Sheean (2018) 58 Fam LR 351 at [74]–[78], the Full Court made clear that while the court must consider each of the primary and additional considerations in s 60CC, express discussion is not necessary. The relevant considerations are determined by the way in which the parties presented their cases.
The primary considerations set out in s 60CC(2) of the Act are as follows:
•the benefit to the child of having a meaningful relationship with both of the child’s parents; and
•the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court give greater weight to s 60CC(2)(b).
Section 60CC(2)(a): a meaningful relationship
In Loddington & Derringford (No 2) [2008] FamCA 925 (“Loddington”) Cronin J held at [169]:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
In Loddington Cronin J further added at [173] that an assessment of the benefit to the child must be made according to “the peculiar facts of what the parents are offering”.
In Cotton & Cotton (1983) FLC 91-330 (“Cotton”), Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
… that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
In McCall & Clark (2009) FLC 93-405 (“McCall”) at 83,476, the Full Court said at [122]:
…No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests.
In McCall at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents will be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
The father’s case is that there should be an opportunity for Y to develop a meaningful relationship with him. The mother is opposed to this. The children too are opposed to this and have not had any form of relationship with the father since 2016.
Section 60CC(2)(b): protection from harm
The second primary consideration in determining a child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother does not contend that the father is an unacceptable risk as that concept is understood in Isles & Nelissen (2022) FLC 94-092 (“Isles”). That submission is understandable and appropriate given the considerable passage of time between the mother’s allegations of violence and now.
Harm however need not be confined to unacceptable risk. In this case, I must assess the harm that may be caused to either or both of the children if I ordered time against their strident views and lack of relationship with the father.
To that end, the father’s counsel asked the mother’s psychologist some questions about the possible long-term, negative impact on Y if he did not spend time with his father. The mother’s therapist quite rightly pointed out that she had not seen the child. Nevertheless, in response to the questions, the therapist said that the impact on Y would depend on the nature of the child’s relationship with his father and whether the attachment was secure. She added if the relationship was not secure and time was required, it could cause a lot of stress on the child. The therapist highlighted that for Y, it was very important that the court take into account his opinions on the father’s involvement with him. When again pressed, this therapist said the impact on the child would depend on whether the relationship with the father was a healthy one and the child wanted a relationship. However, if the relationship is not healthy and not secure and the child did not want the relationship then ordering time would not be good for the child.
As is apparent, Y does not have a relationship with the father and thus it is not secure and cannot therefore be currently healthy. The child is clear that he does not want a relationship with the father either.
Balancing the primary considerations
In Vigano & Desmond [2012] FamCAFC 29 the Full Court said, at [128]– [129]:
The court must always consider the benefit of a meaningful relationship when considering the best interest of the children. However, if the court finds there are benefits to the children in having a meaningful relationship then the court would need to consider whether that would give way to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. However, a finding that there is a benefit to the child of having a meaningful relationship with one of the parents is not dependent simply on lack of danger of physical or psychological harm.
Sub-section (a) of s 60CC(2) stands on its own. If the court is not satisfied that there is a benefit to the children of having a meaningful relationship then whether or not there is a need to protect the children from physical or psychological harm would not necessarily need to be considered. Certainly the fact alone of an absence of physical or psychological harm does not of itself lead to a conclusion that there is a benefit to the child in having a meaningful relationship.
Thus, I must consider on one hand, whether orders for time between Y and the father would be healthy or beneficial for the child, or, on the other hand, whether there would be no positive benefit for the child if I attempted to craft orders to create a relationship between Y and the father. In other words, would I be making time orders for the sake of making time orders; see Cotton, above.
If I conclude that there is no benefit for Y in crafting orders to try and create a meaningful relationship between the child and the father (over the child’s fervent objections), then I do not need to consider the second primary consideration, being protection from harm. However, in this case, I must consider if forcing Y to spend time with the father will cause him harm, and indirectly X.
I must also consider the impact on the unchallenged residential parent, the mother, if I made orders for Y to spend time with the father. I will consider the mother’s position under capacity to parent.
Section 60CC(3) – Additional Considerations
The Court must have regard to each of the “additional considerations” under s 60CC(3) of the Act to consider how they should give effect to either or both of the primary considerations in order to determine the child's best interests. I set these out in turn below.
(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;
The children have expressed firm and steadfast views in the three Reports before me (Exhibits 1 – 3), including the recent Specific Issues Report dated 27 January 2023. I have already set out some of their views at the start of these Reasons, which can be easily summarised - they want court to end and they do not want a relationship with the father.
The father was asked about Y’s views and whether at 13 years of age, his views ought count or not. The father said Y was being brainwashed by both the mother and by hearing the mother and X talk about the father, for example; “he sits in the car and hears what is going on”. When asked the basis for that assumption, he said it was “what I can imagine”. In other words, he had no evidential basis for his bald assertion.
The father was asked if he thought Y was being untruthful when he told the report writer earlier this year, “I don’t remember him, who is my dad I don’t even remember anything about my father I don’t remember what he looks like”. The father replied the child had been brainwashed. The father was asked how he knew that when he had not seen the mother or the children for such a long period. He replied, “I know the mother”.
The father also believed the children said what they did to the Report Writer because the mother told them to say certain things for reward. The father had nothing but speculation to advance that proposition.
The father would not, or could not, accept that irrespective of how the children came to their views, the children nevertheless had firm and unfaltering views that they do not want to see the father and that is their reality. The idea of the children’s own reality or the children’s own narrative was something the father was unable to accept or even acknowledge.
Similarly, the father could not accept that if the children’s reality or narrative about him was as described in the three Reports, then, an order for time or even supervised might have an adverse impact on the children, or Y in particular.
The father was “100%” rejecting of the idea that Y said if he had a magic wand, court could finish and he would not see the father. Y also said that he wants a good life and no more hospital (in relation to his health issues). The father accepted the child did not want any more hospital, but could not accept the child wanted a good life. The father did not consider the child to be a judge of what constituted a good life. That might have been so when the father last saw the child when five years old, but he is now 13. The father added the child does not, in fact, have a good life at all with the mother. This is in circumstances where the father proposes the children live with the mother.
The father considered Y too young to express any views, especially because those views were a product of the mother’s brainwashing. The father said it was very sad for the mother to inflict the brainwashing on the child.
The father could not countenance that he (the father) may be incorrect about brainwashing. The father’s response was, “I am correct”.
Indeed, the father was unwavering in his answers that the children’s views were a product of the mother’s “complete” brainwashing over the last eight years. If I accept the father’s adamant position about the brainwashing, then it is hard to see how time with Y would work in a beneficial way for the child, much less that Y would “rejoice” (as the father contended) if able to see his father. If the father is right on the brainwashing, then ordering time would likely have very poor impacts for Y. I do not accept the father’s evidence that he would be able to correct the child’s long-held mindset against him (on the father’s case) by just being positive, talking about school and taking it slowly. On the last point of going slow, the father’s proposal for time is one that graduates to unsupervised time in six months. That is not taking it slowly in circumstances where Y has not seen his father since 2016, and where Y expresses strong views in not wanting to see his father.

It was said in the Specific Issues Report of this year that:
It is challenging to accurately assess if [X] and [Y’s] wishes to have no contact with their father are due to their experience of their father, or due to their mother’s influence, or if it is as a result of frustration with the longstanding parental dispute and Court matter. However, their presentation during interviews seemed definite and unwavering and that they are fearful of him. Regardless of which parent’s account is most accurate, this is their narrative.
(Exhibit 3, paragraph 26)
Save for the father’s bald assertions, there is no reliable evidence before me that the mother has brainwashed the children. He has failed to persuade me that is so. More importantly, I accept what is attributed to the children in the three expert reports; the Report Writer was not shaken on her recording of the children’s views in cross-examination.
I accept the children have a reality and perception of the father, which has been consistently expressed by them over three reports. They do not want to see their father; this is their narrative. They also want court to end. Accordingly, I will give considerable weight to the children’s steadfast 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);
The children speak positively about their mother. I have no reason to doubt that, nor do I doubt that she has been their primary carer at least since the father was incarcerated.
The father mounted an historical case that prior to his incarceration, he was actively involved with the children. The mother disputed that. I do not need to decide whether that was the case or not, because the effluxion of time since the children have seen the father makes the disputed history a moot point. What is agreed is that the children have not seen or spoken to the father since 2016. I accept that to be so; the children’s relationship with their father for the last seven to eight years has been non-existent.
Despite the years of apparent “complete brainwashing” by the mother, the father maintained that Y’s relationship with him will be positive. The father was simply unable to comprehend that forcing Y to spend time could be harmful for the child. The father’s insight in this regard is lacking and his inability to see Y may have another perspective is also lacking in insight.
On all accounts, the children have a good relationship with each other. There is a realism in the 2023 Specific Issues Report at paragraph 19 where Y is reported saying that he sometimes finds his older sister annoying when she takes some of his things. That sounds like an entirely healthy and natural sibling relationship.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;
The father’s incarceration and subsequent absence from the children’s lives means the mother has been the decision maker. I accept the father applies to spend time, initially with both children and now, Y.
Nothing really turns on this matter in the circumstances of this case.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The father did not pay any child support for the children whilst he was in jail. He was not earning any income it would seem, so that makes sense. However, the practical reality of that is the financial burden of supporting the children fell to the mother.
The mother deposed that the father pays approximately 25 cents per child in child support per day. As I understand it, that is the assessment and the father cannot be criticised for paying as assessed. The father did not depose to the amount he is assessed to pay, but as he is in receipt of government benefits, the amount would be minimal. On any case, the same practical reality arises - almost the entirety of the children’s financial support falls to the mother.
(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; (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
This is a significant consideration.
Y has expressed very clear views and they have not changed over three Reports. It follows that if I ordered time between the child and the father, then that would be a significant change for Y. Not only would it be something completely contrary to his views, but there is also the impact of that on his mother and his sister. X is equally fervent in her views that there be no time.
The Single Expert said that if I ordered Y spend time with the father, then:
If [Y] and [X] (although noting her age) were Court ordered to recommence spending time with their father, even with the support of supervised contact centre workers or an appropriately qualified family therapist, their emotional wellbeing is likely to be significantly impacted. In their mind, their views, which they feel they have voiced over the years, will not have been listened to, and they may feel that they are being placed in a very physically and emotionally unsafe situation, given the alleged rhetoric their mother has instilled in them regarding their father.
While it is understood that [Mr Paterson] wishes to remain hopeful and positive about re-establishing his relationship with the children, his views that they would quickly return to the way things were, is not realistic. [X] and [Y] are at very different stages in their development than they were when [Mr Paterson] was incarcerated. They are also in the adolescence stage, where they are developing greater independence from family, have increased involvement with peers, schooling and recreational activities, and focusing on establishing their sense of self. It is evident that [Y] and [X] have had much upheaval, and them being aware of Court processes, involved in various interviews over the years has likely been extremely unsettling and distressing for them. At this stage, if there were changes to their status quo, with the re-introduction of their father, they are both extremely vulnerable of feeling extremely overwhelmed by the family issues which could place them at potential risk of academic deterioration, mental health difficulties or risk taking behaviours, particularly if they are feeling burdened by high conflict, loyalty conflicts or worries about safety. It should not be underestimated the impact that the stress of these changes could have on [Y] and [X’s] health either. If orders are made for [Y] (or [X]) to spend time with [Mr Paterson], it is very likely that they both would refuse to abide by the Orders, due to their ages
(Exhibit 3, paragraphs 23–24)
When Ms T was asked in cross examination whether supervised contact would help, she said:
…It could potentially, but also, as I’ve mentioned earlier, if [Y’s] reality – perceived reality is that his father is somebody to be fearful of, that his mother is extremely fearful of, that his sister is extremely fearful of, even if that wasn’t the case he would find it extremely distressing, emotionally unsafe, physically unsafe to attend such visits even with all the support around him of a secure safe individual supervising or perhaps having therapeutic support in the form of a family therapist. It could – still could be a really emotionally unsafe process for him to engage in.
(Transcript 4 May 2023, p.7 lines 27–33)
Further, when asked whether these challenges can be adequately dealt with to give Y a chance to develop a meaningful relationship with his father, Ms T said:
…That – that forms part of my concern, that they may not be able to be adequately dealt with, and it could, in fact, place [Y] at more risk. Another challenge that could arise – and it’s not uncommon arising – particularly given [Y’s] age, that if he – if supervised time is ordered, that agency will do their own intake, whether it be a private agency or a government-funded one. And part of that, particularly because of [Y’s] age, will be consulting [Y] about it. And if he has very strong views, whether they are his own views, or whether they are influenced by others, that will form part of their assessment as to whether they can proceed with supervised time, based on their own processes and procedures around child safety and wellbeing.
(Transcript 4 May 2023, p.11 lines 21–30)
I accept Ms T’s opinions, because they rest on her expert assessment of a consistent portrayal from the children about their father. Of concern, the report writer also expressed the view that Y would very likely struggle to engage in court ordered time with the father in a manner that would not compromise his emotional safety. In the circumstances of the child’s views and the expert’s opinions, it is difficult to see how ordering time between Y and the father would be positive and beneficial for the child.
Ordering time would be significant change to Y that brings with it a risk to his emotional safety as set out by the Report Writer. That is a fact upon which I must place considerable weight.
(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;
The orders proposed by the mother come with no practical difficulty or expense.
Conversely, the orders proposed by the father come with the cost of supervision for the first three months of fortnightly visits, and the next three months of weekly supervised visits. The evidence before me is that the private supervision service, F Contact Service, charge $180 for an intake. Both parties would be required to do an intake. The hourly rate for F Contact Service on a Monday to Friday is over $90 per hour, for a minimum of three hours, totalling over $270. On a Saturday and Sunday, it is over $100 per hour for a minimum of three hours, totalling over $300.00. On a public holiday, it is over $160 per hour for a minimum of three hours, totalling over $480. There are also costs per kilometre for travel ($1.32) and costs if a party asks for a report (Exhibit 12).
Hence, there is the intake of $180 for each parent and then the cost of three hours of supervision ranging from around $300 to $500 each time depending on which day it is conducted. That is not an insignificant cost.
The father’s minute does not specify how the costs should be met, for example, whether he proposed to pay all of the costs, or, whether he proposed the mother and father share the equally costs.
I am not satisfied the father would be able to meet the costs of supervision. In cross‑examination the father confirmed he receives a Newstart allowance of $860 a fortnight, being $430 per week. He pays rent of $280 per week after a rental allowance of $100 per week. He has no savings.
The father said his relative, Mr R, is prepared to give him up to $20,000 to assist. That is all very good and well, but Mr R was a witness in the husband’s case and the highest his evidence went was that he “would assist”. There is no particularity about such a significant sum of money in Mr R’s affidavit. It also became clear in the cross-examination of Mr R that he knew very little about the father’s past. That calls into question whether they were as close as the father claimed. In any event, I am not prepared to put any weight on the finances the father said Mr R would provide, when Mr R deposed to nothing of the kind. Further, Mr R is not a party to these proceedings; I cannot order him to do a single thing.
I will not make an order that the mother meet all of the costs of supervision if I determined that to be in Y’s best interest. The mother has the costs for the care of the children less the minimal amount she receives from the father in child support. The mother ought be devoting her financial resources to the children’s day in day out needs and requirements. The mother’s Costs Notice filed 2 May 2023 reveals she is legally aided.
I am also not prepared to make an order that the parties equally share the costs of supervision for the same reasons why I would not order the mother to meet all of the costs and for the doubts I have about the father’s capacity to do so.
If I left payment to the father, that means the child’s supervised time with the father would depend on whether the father could afford the costs of supervision or Mr R voluntarily came good with the funds. The father has not satisfied me he can pay, nor can I rely on what the father said about his friend Mr R for the reasons already given. That means if I ordered supervised time, Y would be at the whim of the father’s capacity to pay. That uncertainty is of no benefit to the child.
(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;
The applicant father has demonstrated no capacity to parent the children over the last eight years. His involvement in criminal activities leading to time in jail is also a poor reflection on his choices when he says he was parenting the children.
The father’s view that time with Y would be positive, notwithstanding (on his case) eight years of “complete brainwashing” by the mother of the children, was either naïve or prioritised his own wants over the needs and views of the child. Either way, that lacks insight and child focus on the father’s part.
As a further example of the father looking through his own lens, the father was asked about the latest Family Report where X expressed an interest in a certain career. The father has not been in X’s life for almost eight years. Put differently, the mother has been X’s sole, guiding, and parental light at least since the father was jailed. Rather than give any acknowledgment of the mother’s sole parenting, the father said he thought that X’s career aspirations could be true adding “she takes after her father”. To the contrary, X’s career prospects gives the mother considerable credit in her sole parenting of the child since the father was jailed and thereafter.
I have no reason to doubt the mother’s capacity to the parent the children. Whilst the father is very clear about her many apparent failings, he proposed the children live with her. It therefore must be that he accepts the mother has the appropriate capacity to parent the children.
It was however churlish of the mother to dispose of the father’s box of keepsakes, which contained photos of the children and at least one photo of Y with the father. The police returned the box to the mother after the police executed a search warrant on the mother’s residence in relation to the father’s criminal activities. It was clear that was distressing for the mother. Disposing of the keepsake box was nevertheless a fractious reaction. However, in the overall scheme of considerations in this matter, including the mother as the unchallenged residential parent, little turns on this.
Y has significant health challenges, including longstanding diagnoses of multiple conditions and more recent diagnosis of another condition. Sometimes these manifest in Y suffering bouts of severe pain that requires him to be collected from school early or wakes him during the night. There is no evidence before me that the mother is in any way derelict in her duties to facilitate and engage with Y’s many medical and allied health appointments and ensures he takes medication/receives injections for the management of his diagnoses.
Separately, the mother said her capacity to parent would be compromised if I ordered the children (or Y as the trial was run) spend time with the father; her counsel referred to Re Andrew in that regard. The mother’s therapist deposed the mother told her:
…Whilst her ex-husband was incarcerated, [Ms Hamdy] reported that she and her children were able to feel safe, secure, and were making improvements with their physical, emotional, and mental health. Following his release, [Ms Hamdy], and her children’s fear of him has reportedly exacerbated immensely, and she has been living in fear, worry and stress.
(Affidavit of [Ms S] filed 26 April 2023, p.8).
…[Ms Hamdy] reported that she has ongoing panic attacks and fears about her ex‑husband threatening or killing her. These emotional responses are triggered with the thought that he is released from prison and attempting to see her children…
(Affidavit of [Ms S] filed 26 April 2023, p.13).
…[Ms Hamdy’s] claims about her ex-husband seem extremely concerning, and it is crucial that she and her children’s safety and emotional and mental wellbeing are of utmost significance. [Ms Hamdy] has reported ongoing fears about her ex-husband killing her, she is constantly hypervigilant, and her anxiety and panic attacks are often triggered with the thought that he is released from prison, and she will need to attend an upcoming court hearing in May 2023.
(Affidavit of [Ms S] filed 26 April 2023, p.9)
The mother has been diagnosed with PTSD, based on the DSM-5 criteria (Affidavit of Ms S filed 26 April 2023, p.12). The mother attended Court by remote means.
In cross-examination, the mother’s treating practitioner was asked what supports could be put in place for the mother should time be ordered between the father and Y. The psychologist replied:
if that order is made, then I guess we will have to work with mum in terms of managing her own stress and work around safety planning and checking in with [Y] and his needs and checking to ensure, you know, his needs are being met, he is in a safe environment, and ensure we, I guess, develop some coping strategies around that.
I have no doubt that the mother will be stressed if I ordered time. The evidence however does not rise to demonstrate her parenting capacity would be impaired if I ordered time. Appropriately, little was advanced with respect to the Re Andrew proposition in submissions.
(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;
The father was born in Country U and attended a religious school. He migrated to Perth, Western Australia in 1989 with his family. In 1992, he became an Australian citizen whilst residing and living in Perth. The mother was born in Country V and migrated to Australia with her family when she was two years of age. The parties were married in an Australian civil ceremony and both children were born in Australia.
The dispute under this sub-heading was not so much about keeping the children connected to their Country U or Country V links; rather the father was concerned about religious observance within the mother’s and maternal family. That is, the father believes the mother adheres to strict religious traditions and constantly prays. He seemed to be critical when saying the maternal grandfather “was always in the [place of worship]”. He said the only person who was not strictly religious was the maternal grandmother but added that she has dementia.
The father was very critical of Ms T’s Report for not addressing any psychological issues that the children are suffering from the “negative brainwashing that has been directed on my children form [sic] the Respondent the mother and her very strict religious family…” (Father’s affidavit filed 29 April 2023, p.111).
The father was also very critical of the Specific Issues Report Writer when she said the children celebrate his religious holidays. The father retorted, “Where is her proof? Where are the photos or videos?”.

I do not share the father’s view that the mother’s religious practice, in whatever form it takes, is a cause of psychological harm to the children. There is no actual evidence before me of that. Rather, the preponderance of the evidence supports the conclusion that the children have exposure to a rich range of cultural and religious experiences, including whatever way the maternal family observe their faith, along with other religious celebrations.
At the end of the day, whilst the father was quick to criticise the mother at every opportunity, he proposed the children live with her. On his own case, she must be a good enough parent.
(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;
Not applicable.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
In circumstances where the father proposes the children live with the mother and, at most, Y spend alternate weekends with him, it simply must flow that he accepts that the mother is a responsible parent. There is no evidence before me to persuade me from reaching the same conclusion. I repeat all I said under the above sub-section on capacity to parent.
I now turn to the father and repeat what I said about his lack of insight and child focus under the capacity to parent sub-heading. However, I add the following.
Responsible parenthood includes, but is not limited to, the ability to accept failings, to compromise, having insight and to acknowledge where a person may have contributed to the circumstances in which they find themselves. It also requires the ability to have child focus as opposed to self-prioritisation. The father lacked those abilities and attitudes.
For example, the father could not comprehend, let alone accept, that many years of his absence from the children might have had an impact upon them. He could not accept or acknowledge the concept of the children’s reality, no matter how that arose.
Similarly, the father was unable to accept that anything he had done or said might have contributed to the position he finds himself with the children. There was no self-reflection. For example, he took every opportunity to blame the mother and lay fault at her feet or criticise others who had views different to his. For example, in his Evidence in Chief and/or cross‑examination, the father has blamed and/or complained about:
·His criminal law solicitor and barrister (even though he entered pleas of guilt);
·The ICL who had been in this matter. In his Evidence in Chief the father said he (the father) exposed the ICL’s false and misleading statements and corruption, and that the ICL was never independent and was biased and corrupt with the mother and her solicitor;
·The Court’s Child Dispute Services, in that “the CDs does not want me to prove that the CDs are wrong and corrupt and they want to make sure that they are protected from any legal action that I fully intend to take…” (Father’s affidavit filed 29 April 2023, p.111);
·The author of the Child Inclusive Conference and Family Report was “biased and corrupt” (Father’s affidavit filed 29 April 2023, paragraph 91);
·Ms T, the author of the Specific Issues Report lacked qualifications and her Report:
…has been dictated by higher corrupt management who assigned this social worker who is not an experienced children psychologist by the name of [Ms T] to write this report in this deliberate way to deliberately attempt to wipe out all the wrong doing, disfunction, lying, perjury and disgraceful tactics thoroughly described and pointed out by me to the Honorable Court and to our Honorable Representatives at the Australian Parliament as this is my right in the Australian Constitution as an Australian Citizen to do that in my first letter to the Honorable Attorney General and Honorable Shadow Attorney General last year.
(As per the original)
(Father’s affidavit filed 29 April 2023, p.110)
·He has apparently reported another Justice of this Court to the Attorney General of Australia;
·He also blames the former Liberal/coalition Government:
…my second letter that will be going to the Honorable Attorney General who was the shadow Attorney General in my first letter last year, he is now our Honorable Attorney General after most Australians including me voted for the Labor Government to get rid of the corrupt Labral and national so called coalition.
(As per the original)
(Father’s affidavit filed 29 April 2023, p.111)
·The mother’s solicitor in the proceeding for “assisting the respondent in prolonging the proceedings” (in cross-examination and father’s affidavit filed 29 April 2023, paragraph 76);
·He suspects the mother’s solicitor has some kind of relationship of influence with a staff member of W Contact Service, a Contact Centre (Father’s affidavit filed 29 April 2023, paragraph 87);
·He is critical of an officer of the B Contact Service (this is the service that declined to accept the father as a person to use their services);
·When taken to some inconsistencies between what he had said in evidence in this Court, and what was said in the psychologist’s report for use in his criminal law proceedings, he said it was possible that that psychologist had incorrectly recorded things attributed to him;
·He was critical of a lawyer who had previously acted for him in these proceedings when that person apparently filed a Notice of abuse, family violence or risk (Exhibit 9) without any instructions from the father; and
·The father also complained to the mother’s counsel about her cross-examination of him, particularly with respect to his convictions. The father is legally represented. The father said “you are making me out to be a horrible person. That is a very unfair of you. There is lots of corruption. You describe a horrible person”.
In response to some of these complaints, particularly about the court system, the father intends to:
…exercise my right as an Australian Citizen to meet the Prime Minister in regard to the harm that the corrupt CDs [Child Dispute Services] have done to my children and the encouragement and the emboldening of the CDs [Child Dispute Services] to my ex-wife and her strict family who follow another faith than my faith to further brain wash my children and to further harm my children both psychologically and this psychological harm will also negatively impact on them physically in the short or long term.
(Father’s affidavit filed 29 April 2023, p.112)
The father is perfectly entitled to engage with the Prime Minister and write to the Attorney‑General. What is relevant to my consideration is the inability of the father to accept (or even comprehend) that his actions have had consequences – for example, being jailed and thus absent from the children’s lives.
As a witness, the father was argumentative and keen to add on non-responsive answers to argue his case. I have no doubt that if the father saw Y, even supervised, he would be keen to put his case to the child, just as he did in Court. That has the real potential to harm the child. At the very least, it would be irresponsible parenting.
In addition to the many examples already given, the father’s dismissive attitude to the children and lack of parental responsibility are also demonstrated by the following:
·Given the children’s views, the father was asked whether there was a chance meeting with him would cause the children distress. The father replied no, but added that the children had huge psychological issues because of the mother’s brainwashing of them;
·The father was asked about paragraph 7 of the Specific Issues Report where the mother said the children are “paranoid” that the father is stalking them and that they lock doors and windows and use furniture to block their bedroom doors. The father answered he was not aware of that, which makes perfect sense in the circumstances, but added that he was extremely concerned about that and the mother had to be accountable or answerable for the children’s actions;
·I asked the father that upon reading the Specific Issues Report it seemed that X was angry with the Court because she had again been asked her views when she thought she had made her views very clear. The father again responded that the mother had brainwashed X and the mother must be answerable; and
·At paragraph 28 of the Specific Issues Report it was said that the children would benefit from progressing through their adolescence and early adulthood without the parental dispute. The father disagreed with this. He said it would be devastating to them, not beneficial.
All of this is of course in circumstances where the father says the children should live with the mother.
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;
No family violence protective orders have been made for the protection of either parent. The mother did however attend upon the Suburb Z Police Station in 2015 making allegations of family violence against the father and discussed the possibility of obtaining an Apprehended Violence Order.
The father denied the children had ever seen or experienced him be aggressive or violent either to them or to the mother. He denied that X and Y were fearful of him. He said however, that it was the mother who was aggressive to him, and, abusive to and critical of the children as well. I pause to observe the father proposes the children should live with the mother. The father also denied the mother’s many particularised allegations of family violence.
The mother’s counsel appropriately submitted at the hearing that there has been a considerable passage of time between the mother’s allegations of violence and now. I agree. In the circumstances of this matter, in particular, the father’s long absence from the children’s lives and their views of him, I do not need to make findings about allegations of violence many years ago. Further, I was not asked to do so.
(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;
Plainly, it would be preferable to make an order that would least likely lead to the institution of further proceedings. The children are yearning for court to end.
The father will no doubt be disappointed by my orders and Reasons. But the possibility of an appeal is no reason to make orders to appease a parent. Ultimately, I can only do what I consider to be in the best interests of the children.
That said, the parents are reminded of what Ms T said in her most recent Report:
At this stage, it would be imperative that both [X] and [Y] have some sense of finality, that Court is over and they are not going to be required to talk to yet another stranger about their family situation. Given the children’s history, ages and views, there does not seem to be a realistic option for reintroducing them to their father at this time. They would benefit from being permitted to continue to progress through their adolescent and young adult years without the stress of the parenting dispute, they have encountered in recent years. They should continue to remain well connected with their school, sports teams/activities and friendship networks.
(Emphasis added)
(Exhibit 3, paragraph 28)
I have already set out quotes from the children about the litigation. It will be a matter for the father whether he listens to the children, or, pursues the complete antithesis of their clarion call for court to end – that is, more litigation.
(m) any other fact or circumstance that the court thinks is relevant.
Nothing arises here.
DISPOSITION
Both parents agree the children live with the mother. I have already determined to make a sole parental responsibility order in favour of the mother. Thus, this matter is largely about whether Y would benefit from a relationship with the father.
When looking at all the relevant s 60CC considerations, I conclude that I would be making orders for time, for the sake of making orders for time. In other words, I see nothing beneficial, healthy or advantageous for Y in mandating he spend time with the father. I reach that conclusion by reference to:
(a)the passage of time since the children have seen the father;
(b)the children’s strong views about no time;
(c)the children’s reality, irrespective how that arrived;
(d)the significant change to their circumstances (Y directly and X indirectly) if time was ordered;
(e)the father’s lack of child focus, insight, and parental responsibility; and
(f)the prospect that forcing Y to spend time could be harmful to him.
I thus decline to make the orders for time and communications sought by the father. I am also not satisfied he could contain himself from blaming the mother, the Report Writers and others if he saw Y even in a supervised setting. I am also not satisfied he would follow directions of a supervisor if that did not accord with his views.
I turn to the other orders proposed by the parties, noting the father abandoned the orders he had sought about X during the trial.
Medical treatment
The father sought an order for the mother to give him:
…notice of any medical treatment required of the children within 24 hours of such medical treatment being provided, aside from treatment for common ailments. Such notice shall include the details of the condition, treatment and contact details of the provider of care/treatment.
(Father’s Minute of Order filed 28 April 2023, Order 19).
I am satisfied that an order of this kind would lead to disputes between the parties. Further, X is of an age where she ought have privacy with respect to her medical needs. There is no evidence before me that either child would be comfortable with the father knowing their medical issues. Also, given the bombastic and argumentative manner in which the father gave evidence, and given he is quick to complain about others with different opinions, I am not persuaded any good would come from the father having the contact details of care/treatment providers.
Passports and Overseas Travel
The mother seeks orders pursuant to s 11 of the Passports Act 2005 (Cth) that she be able to obtain passports for the children without the father’s consent. She also proposed she be able to travel domestically and internationally with the children, without the consent of the father. The mother further seeks an order removing the children from the Australian Federal Police Watchlist.
The father agrees the mother may travel interstate with the children without his consent, but will not agree to the mother being permitted to travel internationally with the children without his consent.
The father seeks six weeks’ notice from the mother of such proposed travel, and a full itinerary 30 days beforehand. The father further seeks that if Y is away on holidays during the father’s time, that make up time occur. I am making a no time order. The father’s proposal for make up time therefore does not arise.
Section 65Y of the Act imposes obligations on persons if a parenting order has been made. In short, it is an offence to take a child out of the country without the written consent of (in this case) the father, or in accordance with an order of a court made under Part VII of the Act.
The Full Court in Line & Line (1997) FLC 92-729 (“Line”) held that I am required to assess the degree of the risk of the departing parent leaving and, despite assurances, not returning to the Commonwealth. However, authorities such as Line, are in the context where the non‑travelling parent is having time with the child. Thus, considerations about future travel is a question as to whether that time would be thwarted should a parent not return. That is not the case here.
The decision in Line also tells me that an important matter to consider is whether the country is a signatory to the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). Again, consideration of the Hague Convention is in circumstances where a parent’s failure to return would thwart the child having time with the non-travelling parent. However, I am making no time orders for the children and father. Thus, if the mother and children go overseas and do not return (not that there is any reliable evidence that the mother is a flight risk), that will not affect any orders for time between Y and the father.
I am also not prepared to fetter the mother’s ability to take the children overseas. The children will not be spending time with the father; there is no need for him to have the power of veto for travel, or to put the mother to the expense of bringing an application to court to secure court orders for travel. The children also do not need to know, or sense, that the father could essentially control their travel abilities.
It is trite to say that travel to other countries offers children rich opportunities to learn about other cultures and traditions. It is a different kind of educational experience.
For all of those reasons, I will make an order allowing the children to travel outside of the Commonwealth of Australia without the father’s consent. Consequently, the Airport Watchlist will be lifted.
Clearly, the mother will need passports for the children to travel. I will make the passport order as sought. Plainly it is the mother who will meet such costs, but I do not need to make that as an order – it is the practical reality.
Restraints / Injunction
The mother seeks a range of injunctions restraining the father from approaching or contacting her or the children. I will make such orders to give the children and the mother re-assurance that the father is prevented from doing so. In the Specific Issues Report, the mother reported:
…that [X] has seen [Mr Paterson] in the community (in a shopping centre and on the street) and more recently in their residential shared courtyard, and that [X] has been petrified on these occasions. She claimed that on the most recent occasion (November 2022), [X] sought to attend the police to report her concerns. She claimed that [X] and [Y] are “paranoid” that [Mr Paterson] is stalking them and that they lock doors and windows and use furniture to block their bedroom doors. [Mr Paterson] denied that he has ever seen [X], [Y] or [Ms Hamdy] in the community or that he has stalked them.
(Exhibit 3, paragraph 7)
The mother reported similar to her psychologist that following the father’s release from prison, X had seen her father in their residential area and in the community, and reported her concerns to police in November 2022 (Affidavit of Ms S filed 26 April 2023, p.9). Ms S also says:
…[Ms Hamdy] reported that both [X] and [Y] are “paranoid” about their father stalking them and knowing their whereabouts. [Ms Hamdy] reported that her children make sure that the doors and windows are locked every night and use furniture to block the front and bedroom doors. [Ms Hamdy] reported that her neighbour has also reportedly seen a suspicious man looking around close to their residential area. [Ms Hamdy] reported that there was a suspicious break in on the ground level of the apartment with broken glass. As a result of recent and suspicious incidences, [Ms Hamdy] reported that she and her children no longer feel safe in their own home.
(Affidavit of [Ms S] filed 26 April 2023, p.9)

The father denied that he has seen the children in the community or that he has stalked them. Even if I accept that to be so, it is clear the children have a heightened sense of concern about the father doing such things. The father was eager to add in response to cross-examination that it was “great if she [X] remembers me” “if she [X] saw me in the community”. This further demonstrated the father’s lack of understanding of the children’s views or their narrative. It is in the children’s best interests that they have the security of an order preventing the father from doing the kinds of things about which they have considerable fear and stress.
It follows that I will not make the orders sought by the father that he be permitted to attend Y’s school, sporting or extra-curricular activities, or to attend parent teacher interview even at a different time to the mother. The children’s views are at complete odds with that happening.
Publication of orders
The mother sought an order she be permitted to provide a copy of these orders to the children’s schools and extra-curricular activity providers. I will do so, so the school/s and activity providers understand the arrangements for the children and allocation of parental responsibility.
Non-denigration orders
The father sought orders that:
The parties are restrained from denigrating the other party or members of the other party’s family to the children or in the presence or hearing of the children.
That parties are restrained from discussing the Family Court proceedings with the children or showing the children any document relating to the proceedings.
(Father’s Minute of Order filed 28 April 2023, Orders 17 and 18)
These orders will have no practical impact on the father, as the children will not be seeing him. I do not have any reliable evidence that the mother has done any of the things contained in these proposed orders, but I will nevertheless make the orders sought by the father. I do so to give the father some comfort that the conduct in his proposed orders cannot occur. More so, I will make the orders simply because it is good form not to do such things.
I will vary the second order sought by the father. I do not have an ICL to explain the outcome to the children. Thus, I will permit the mother to tell the children that: the trial has ended; the children will spend no time or communicate with the father; the father is not allowed to approach or contact them; and, in reaching these decisions, I listened to their voices.

I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch.
Associate:
Dated: 31 July 2023

File number:	SYC 1229 of 2018
Judgment of:	BRASCH J
Date of judgment:	31 July 2023
Catchwords:	FAMILY LAW - PARENTING – Where children have not seen or spoken with the father since 2016 – Where father convicted of and jailed for offences – Where children express strong views to not see the father – Where children’s views remain unchanged over three Family Reports – Where mother is the unchallenged residential parent – Where father claims mother has brainwashed the children regarding their views of the father – Where one child turns 18 years soon – Where dispute ultimately concerns younger child
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) Part VII, ss 60B, 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(2A), 60CC(3)(a)-(m), 61DA, 61DA(4), 65D(1), 65DAB
Cases cited:	Cotton & Cotton (1983) FLC 91-330 G & C [2006] FamCA 994 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386 Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97 Line & Line (1997) FLC 92-729 Loddington & Derringford (No 2) [2008] FamCA 925 Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 R & C [1993] FamCA 62 Re Andrew (1996) FLC92-692; [1996] FamCA 43 Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142 Vigano & Desmond [2012] FamCAFC 29 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division:	Division 1 First Instance
Number of paragraphs:	158
Date of hearing:	1–4 May 2023
Place:	Sydney
Counsel for the Applicant:	Mr Duc
Counsel for the Respondent:	Ms Druitt
Solicitor for the Respondent:	John Spence & Associates

SYC 1229 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR PATERSON Applicant
AND:	MS HAMDY Respondent

order made by:	BRASCH J
DATE OF ORDER:	31 JULY 2023