Rabbani & Rabbani
[2023] FedCFamC2F 292
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rabbani & Rabbani [2023] FedCFamC2F 292
File number(s): PAC 5902 of 2020 Judgment of: JUDGE MURDOCH Date of judgment: 27 March 2023 Catchwords: FAMILY LAW – PARENTING – Where the mother seeks orders that the father spend no time with the children – where there are serious allegations of family violence including threats made against the life of the mother and the children and coercive and controlling behaviour – where the father broadly denies the family violence allegations –where the father did not avail himself of the opportunity to spend supervised time with the children pursuant to interim orders and as such has not seen the children in over two years – finding that the father perpetrated family violence against the mother – finding that the father has threatened to kill the children - finding that the father presents an unacceptable risk to the children – finding that the unacceptable risk cannot be ameliorated– order made for father to spend no time with the children and protective injunctive orders made. Legislation: Family Law Act 1975 (Cth) ss 4AB(1), 4AB(3), 4AB(4), 60B,60B(4), 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC (3)
60CG, 61DA (1), 65D, 65DAA, 68B
Cases cited: A v A [1998] FamCA 24
Amador & Amador [2009] FamCAFC 196
B & B [1993] FamCA 143
B & K [2001] FamCA 880
Blanch & Blanch & Crawford [1998] FamCA 1908
Blinko & Blinko [2015] FamCAFC 146
Carter & Wilson [2023] FedCFamC1A 9
Dieter & Dieter [2007] FamCA 608
Helbig & Rowe [2016] FamCAFC 117
Illgen & Yike [2018] FamCA 17
Isles & Nelissen [2022] FedCFamC1A 97
Johnson & Page [2007] FamCA 1235
Keane & Keane [2021] FamCAFC 1
Keating & Keating [2019] FamCAFC 46
M & M [1988] HCA 68;
Mazorski v Albright [2007] FamCA 520;
McCall & Clark [2009] FamCAFC 92;
Ramzi & Moussa [2022] FedCFamC2F 1473
Whisprun Pty Ltd v Dixon [2003] HCA 48
Zuen & Lhao [2020] FamCAFC 84
Division: Division 2 Family Law Number of paragraphs: 235 Date of hearing: 15- 16 February 2023 Place: Parramatta Counsel for Applicant Ms Abdelraheem Solicitor for Applicant Longton Legal Counsel for Respondent Mr Cairns Solicitor for Respondent Danawe Lawyers Counsel for the Independent Children’s Lawyer Mr Reeves Independent Children’s Lawyer Legal Aid NSW Campbelltown Family Law ORDERS
PAC 5902 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RABBANI
Applicant
AND: MR RABBANI
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
JUDGE MURDOCH
DATE OF ORDER:
27 March 2023
THE COURT ORDERS THAT:
1.The Mother have sole parental responsibility for X born in 2013, Y born in 2015 and Z born in 2017 (“the children”).
2.The children live with the Mother.
3.The children spend no time with the Father.
4.Pursuant to Section 68B of the Family Law Act 1975 (Cth) the Father is restrained by injunction from:
(a)approaching or contacting the Mother or any of the children and/or causing any third person to do so on his behalf by any means including electronic communication;
(b)causing or threatening to cause bodily harm to the Mother and/or any of the children;
(c)harassing or stalking the mother and/or the children;
(d)attending or being within 200 metres of:-
(i)the place of residence or work of the Mother;
(ii)any school, daycare, before/after school care or any other extra- curricular activity or service at which the children attend.
5.Pursuant to section 68C of the Family Law Act 1975 (Cth), if a police officer believes, on reasonable grounds, that the Father has breached Order 4 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 Family Law Act 1975 (Cth), 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 Family Law Act 1975 (Cth) a person who is authorised or directed by a provision of the Family Law Act 1975 (Cth), to arrest another person may use such reasonable force as it is necessary to make the arrest or to prevent the escape of the person under the arrest.
6.That the Registrar of the Federal Circuit and Family Court of Australia (Division 2) forthwith provide a sealed copy of these orders to the Police Commissioner of New South Wales, the Local Area Commander of Suburb B Police Station and the Principal of C School.
7.Leave is granted to the Mother to provide a copy of these Orders to any school, day care or extra-curricular program at which the children may attend.
8.The question of costs sought from each party by the Independent Children’s Lawyer in the sum of $6,916.08 (“the costs issue”) and the Mother’s reserved costs of 5 July 2022 is listed for determination on 26 April 2023 and for such determination:-
(a)The Mother to file and serve by no later than 4:00 pm on 29 March 2023 a Short Minute of Order particularising any orders as to costs she seeks against the father and in response to the costs being sought by the Independent Children’s lawyer;
(b)The Father is to file and serve by no later than 4:00 pm on 5 April 2023 a Short Minute of Order in response to the costs sought by the Independent Children’s lawyer and any costs sought by the Mother;
(c)Each party is to file and serve any Affidavit and/or Financial Statement upon which they seek to rely by no later than 4:00 pm 10 April 2023;
(d)Any objection by the Independent Children’s Lawyer or the parties to the determination of the costs issue being determined on the papers is to be advised to Chambers and the other parties via email by no later than 4:00 pm 14 April 2023;
(e)In the event there is no objection to the costs issue being heard in Chambers then each party is to file and serve any written submissions of no more than two pages by no later than 4:00 pm on 21 April 2023;
(f)In the event a party or the Independent Children’s Lawyer objects to the costs issue being determined in Chambers then it will be listed for hearing at 10:00 am on 26 April 2023.
9.The Independent Children’s Lawyer is discharged as and from the determination of the costs issue with the Court’s appreciation.
THE COURT DECLARES THAT:
A.Pursuant to sections 7 and 11 of the Australian Passports Act 2005 (Cth) and the Court being satisfied that it is not practicable to obtain the consent of the Father to enable the children of the relationship X born in 2013, Y born in 2015 and Z born in 2017 to obtain an Australian Passport to travel internationally, the Court makes the following Orders.
IT IS ORDERED BY THE COURT THAT:
10.The Mother of the children X born in 2013, Y born in 2015 and Z born in 2017 be permitted to apply for an Australian Passport to enable the children to travel internationally notwithstanding that the Father of the children has not signed the passport application form and furthermore the said children be permitted to travel internationally without the permission of the Father.
11.X born in 2013, Y born in 2015 and Z born in 2017 be permitted to leave the Commonwealth of Australia, AND IT IS REQUESTED that the Australian Federal Police remove the names of the children from the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
12.All extant applications are otherwise dismissed.
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 Rabbani & Rabbani has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
These are parenting proceedings with respect to the children:-
·X born in 2013, currently 9 years and 4 months of age;
·Y born in 2015 currently 8 years and 2 months of age; and
·Z born in 2017 currently 5 years and 5 months of age.
Property issues were resolved by way of final orders made by consent on 12 April 2022.
The mother is the uncontested resident parent of the children. The children have not spent time with the father since May 2020 notwithstanding interim orders made by consent on 8 July 2021 providing for the children to spend supervised time with the father each alternate Sunday.
The mother alleges that the father perpetrated serious family violence upon her including engaging in coercive and controlling behaviour both throughout the relationship and post separation. She asserts that the children spending any time with the father presents a risk of unacceptable harm of them being exposed to the father’s continued perpetration of family violence. The mother further alleges that the children spending time with the father would adversely impact upon her parenting capacity. She seeks an order for sole parental responsibility.
The father broadly denies all allegations of family violence and asserts that it is in the best interests of the children that they spend time with him on an increasing graduated basis.
For the reasons that follow the mother will have sole parental responsibility for the children. It is further found that on balance, it is in the children’s best interests for orders to be made that they spend no time with the father.
THE PARTIES’ PROPOSALS
The mother seeks orders that:
·She be allocated sole parental responsibility.
·The children live with her.
·The children spend no time with the father.
·Pursuant to section 68B of the Family Law Act the father be restrained from communicating or approaching within 100 metres of the children or the mother.
·The mother have sole authority as to the issue of passports and travel documents for the children.
·The mother be entitled to remove the children from the Commonwealth of Australia for the purposes of travel at her discretion.
·The children be removed from the Airport Watch List.
The father seeks orders that:
·The children live with the mother.
·For a period of four months the children spend time with the father for two hours each alternate Sunday with such time to be supervised by D Contact Centre or E Contact Service once a place becomes available.
·The children then spend unsupervised time with the father each Sunday from 10:00am to 6:00pm for a period of four months.
·The children then spend time with the father each alternate weekend from 3:00pm Friday to 6:00pm Saturday for a period of four months.
·Thereafter during the school term the children spend time with the father each alternate weekend from 3:00pm Friday to 6:00pm Sunday.
·Beginning in the 2024 school year the father spend time with the children during the second week of the term 1, 2, 3 and 4 school holidays from 10:00am Sunday to 10:00am Sunday.
·The parties and children attend family therapy with Mr F of the G Centre or such therapist as nominated by the Independent Children’s Lawyer.
The court was advised during the course of final submissions that the father no longer pressed for an order that the parties have equal shared parental responsibility.
The Independent Children’s Lawyer seeks orders that:-
·The mother have sole parental responsibility for the children.
·The children live with the mother.
·The children spend no time with the father.
·The father be restrained from communicating with the mother and the children, from being within 200 metres of the mother’s place of residence or work and within 200 metres of any school or extra-curricular activity attended by them.
·The mother be authorised and entitled to obtain passports for the children and travel overseas with the children.
·Each of the parents pay the Independent Children Lawyer’s costs of these proceedings in the sum of $6,916.08.
THE ISSUES
The Joint Statement of Issues filed by the parties records that the issues for the court to determine are:-
1.Whether the children are at an unacceptable risk of harm in the Father’s care:
a. The Applicant Mother’s Amended Application filed 6 May 2022 seeks final Orders that the children live with the Mother and spend no time with the Father.
b. The Respondent Father’s Amended Response filed 27 July 2022 seeks final Orders for 8 occasions of supervised time, progressing to alternate weekends and half of school holidays
2.Whether the parties and children should engage in Family Therapy:
a. The Applicant Mother seeks Orders for the Father to spend no time with the Children and does not propose Family Therapy.
b. The Respondent Father seeks orders to spend time with the children and also for Family Therapy to occur through [Mr F].
3.Whether the resumption of equal shared parental responsibility is rebutted and Orders be made granting the Mother sole parental responsibility:
a. The Applicant Mother seeks an Order that the Mother have sole parental responsibility of the children.
b. The Respondent Father seeks an Order for equal shared parental responsibility.
4.Whether the mother of children’s safety is at risk:
a. The Applicant Mother seeks protective Orders pursuant to s68B of the FLA for herself and the children.
b. The Respondent Father seeks orders for contact, including changeovers each second Sunday afternoon directly between the parties.
5.What if any other protective orders should be in place to ensure the safety of the children.
6.Whether the children should be removed from the Airport Watchlist and be permitted to travel:
a. The Applicant Mother seeks Orders removing the children from the Airport Watch List. She seeks to retain the children’s passports and to enable the children to travel with her overseas. She seeks no time with the father, such that the father wouldn’t be able to travel with the children
b. The Respondent Father seeks no specific orders in regard to this issue.
c. The Court may need to consider if the father does spend time with the children, whether any Orders are made restricting the children’s travel overseas.
7.Whether specific Orders need to be made in regard to the obtaining passports
a. The Applicant Mother seeks Orders permitting her to obtain passports for the children and retain the passports.
b. The Respondent Father seeks no orders in regard to this issue.
Whilst I have read and considered all of the material relied upon by the parties and the Independent Children’s Lawyer in these proceedings, I do not propose to traverse all of the evidence in these reasons but rather address the evidence that grounds the reasons for my decision: Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48.
BACKGROUND
The uncontroversial background to the matter is as follows:
·The father was born in 1981.
·The mother was born in 1984.
·The parties met and partook in an Islamic wedding ceremony in 2009.
·The parties were married in Sydney and commenced living together in 2010.
·X was born in 2013.
·Y was born in 2015.
·In 2017 the parties and children moved to live with the maternal grandmother in her home at Suburb H.
·Z was born in 2017.
·The mother asserts the parties separated under the same roof on 15 September 2019.
·The father asserts the parties separated on 13 May 2020.
·In 2020 the father was arrested and charged with two counts of stalk/ intimidate intending to cause fear of physical or mental harm (“the first criminal charges). The mother is the alleged victim. A Provisional Apprehended Domestic Violence Order was served upon the father naming the mother and the children as protected persons. The father left the former matrimonial home pursuant to the Provisional Apprehended Domestic Violence Order and commenced living with his brother at Suburb B.
·In May 2020 the mother commenced counselling at J Psychology.
·In 2020 the father was arrested and charged with breaching the Provisional Apprehended Domestic Violence Order and with a further count of stalk/intimidate intending to cause fear of physical or mental harm (“the second criminal charges). The mother was the alleged victim. The father was refused bail.
·In 2020 the first criminal charges and the application for an Apprehended Domestic Violence Order was listed at Suburb B Local Court. The father was convicted on both counts of the stalking charges and placed on a conditional release order for a period of 18 months. A final Apprehended Domestic Violence Order was made for the protection of the mother and restricting the behaviour of the father for a period of two years; expiring in 2022.
·In 2020 the second criminal charges and the breach of the Apprehended Domestic Violence Order arising from the 19 July 2020 incident was listed at Suburb B Local Court. The father maintained his pleas of not guilty and the matter proceeded to a defended hearing. The father was convicted on both charges and received a two year supervised conditional release order with respect to both charges, to be served concurrently. He was released from custody. On this date the final Apprehended Domestic Violence Order was varied to include the children as protected persons. The father filed an all grounds appeal; being both as to the convictions and the severity of the sentences.
·On 15 December 2020 interim orders were made by this court placing the children on the Airport Watch List with the mother to retain the children’s passports.
·On 11 May 2021 the father’s all grounds appeal was heard by the District Court at Suburb K. The appeal as to the convictions was dismissed and the convictions upheld. The severity appeal was successful and the sentence was varied to a conditional release order for a period of two years without conviction for both charges.
·On 8 July 2021 by consent interim orders were made by this court that:-
·The children live with the mother.
·The children spend time with the father for two hours each alternate Sunday supervised by D Contact Centre supervised contact service or at E contact service once a place becomes available for the family at that service.
·Within seven days each party is to contact D Contact Centre and do all things necessary to enable D Contact Centre to commence the supervised time.
·The father is to pay the associated costs of spending time with the children including obtaining a report following each visit and his initial assessment and intake costs.
·The mother is to be responsible and pay the cost of her intake assessment.
·Within six months the father is to enrol in the course “Taking Responsibility” or an equivalent men’s behaviour change course with a duration of no less than 10 weeks.
·Each party is restrained from denigrating the other parent in the presence or hearing of the children and initiating discussions about these proceedings with them.
·On 26 April 2022 trial directions were made and the matter listed for a compliance hearing on 3 June 2022.
·On 25 May 2022 the father’s lawyer sent correspondence to the mothers lawyer stating:-
We are instructed our client’s position is as follows:-
In the interim he would like to spend time with the children on an unsupervised basis from 2 PM to 7 PM Saturday and Sunday every fortnight. Further our client would like to pick the children up from school every Monday and Tuesday returning them home after spending about an hour with them.
We are instructed our client has no interest in spending time with the children on a supervised basis. If there is no agreement with respect to unsupervised time in the interim our client proposes to discontinue his parenting application and disengage with these proceedings.
Kindly indicate whether the above is agreeable because if not our client would like to seek leave from the court on the next occasion and indicate he wishes to disengage from these proceedings.
Should you have any further enquiries please do not hesitate to contact Mr Danawe solicitor of our office directly.
·The father did not file any material in accordance with the Trial Directions made on 26 April 2022.
·On 1 June 2022 the father filed a Notice of Discontinuance of his Response.
·On 3 June 2022 the matter was listed for a compliance hearing and on this occasion the matter was further listed for undefended hearing on 11 August 2022. On the same date the father’s lawyer sent an email to the mother’s lawyer indicating that the father had changed his mind regarding discontinuing the proceedings and would immediately take steps to spend time with the children pursuant to the orders made on 8 July 2021.
·On 9 June 2022 the E Contact Service forwarded an email to the father confirming that he had registered with the service on that date and that they would be in contact with him in the coming week to organise his intake assessment.
·On 17 June 2022 the father filed an application in a proceeding seeking leave to re-join the proceedings.
·On 1 July 2022 the mother filed a response to the father’s application in a proceeding seeking to stay the orders for supervised time made on 8 July 2021.
·On 5 July 2022 the father was granted leave to re-join the proceedings and orders 2, 3 and 4 of 8 July 2021 for the children to spend supervised time with the father were suspended.
·On 24 September 2022 the final Apprehended Domestic Violence Order naming the mother and children as the persons in need of protection and the father as the defendant expired.
THE CHILDREN
X is currently in year 4 at C school. She attends sports lessons on Tuesday to Friday and music lessons on Thursdays. X presented to the court child expert as a confident and assertive child.
Y is in year 3 and also attends C School. She attends sports lessons on Wednesday to Friday and music lessons on Thursdays. Y presented to the court child expert as a quiet, well-mannered and compliant child. She enjoys spending time with her friends, making new friends and learning in general.
Both X and Y attend Islamic scripture at their school each Wednesday.
Z commenced kindergarten in 2023. He attends sports each Friday. Z presented to the court child expert as a happy and energetic child. He informed the court child expert that he enjoys playing with his friends at preschool and that he has a big trampoline and teddy bear at home.
The children all attend sports lessons on Sunday. The mother deposes that the children are all in good health and doing well at school.
The children and the mother have lived with the maternal grandmother since 2017. It is the maternal grandmother’s evidence that the children appear confident, settled and happy.
THE PARTIES
The mother currently lives with the maternal grandmother and is self employed as a business Director. She is not currently in a relationship. She works on administrative tasks between 10:00am and 2:00pm from Monday to Friday and attends her business three evenings a week.
The father lives in Suburb B with his brother Mr L. He is self-employed as a cleaner and is not currently in a relationship. His work hours vary each day. The father achieved a degree in 2005 at the M University. Upon his arrival in Australia he obtained further qualifications.
THE WITNESSES
I had the opportunity to carefully observe both the parties during the trial. The mother gave her evidence in a clear, responsive manner. The mother was candid and gave oral evidence that may not, at times, have assisted her case. She was thoughtful, considered and firm. She was an impressive witness and I found her evidence to be credible.
The oral evidence of the father was surprising. He affirmed in his oral evidence that the contents of his trial affidavit were true and correct. During the course of cross examination he then stated that he “did not read any affidavits in these proceedings” as his “lawyer is dealing with it.” The father was asked whether he had read his own affidavit before he swore it on 29 August 2022. The father responded that he had not read it prior to executing it before his solicitor and that he had still not read his own affidavit prior to the final hearing. When asked how he could possibly know whether the contents of his affidavit was true and correct he stated “I trust my lawyer.” I found this to be extraordinary.
I gave the father an opportunity to seek an adjournment of the final hearing in those circumstances and afforded the father a short period of time to speak to his legal representatives. Counsel for the father advised the court after the short adjournment that the father did not wish to seek an adjournment of the hearing. No further application was made. In those circumstances the mother made an application that the father’s affidavit not be read. The matter was again adjourned for a period of time to allow the father to read his trial affidavit and thereafter leave was granted to the father to lead evidence in chief to verify that he had read and understood the contents of his affidavit and believed it to be true and correct. No further evidence was sought to be led by the father in evidence in chief.
The father was unresponsive to questions asked of him and on several occasions asked counsel questions in reply, requiring me on more than one occasion to remind him that it was counsel’s role to ask questions and his role as a witness to answer them. I approach the father’s evidence with caution.
The maternal grandmother is retired and is not currently in a relationship. She assists the mother in caring for the children when required. The maternal grandmother was cross-examined briefly. Her evidence broadly supported that given by the mother. I found her to be direct and unequivocal in her responses. She was clear and firm in her answers which were at times upsetting for her to give. I found her to be a credible witness.
I will make specific findings as to factual issues in dispute later in these reasons.
THE FAMILY REPORT
A Family Report was prepared for the purposes of the final hearing by Ms N, a court child expert of some combined 15 years’ experience in child consulting (“the court child expert”). She has tertiary qualifications from the O University. The court child expert has had extensive experience in child consulting both as a caseworker and in child protection and has undertaken training in domestic violence informed practice. There was no challenge to her expertise and I am satisfied she is suitably qualified to provide her opinion to the court.
The court child expert interviewed each of the parties on separate occasions on 4 February 2022 via video as a result of the COVID-19 pandemic. A further telephone call with each of the parties and the maternal grandmother was conducted on 15 February 2022 following interviews with the children at the Parramatta Registry on 9 February 2022. The court child expert had access to and read a wide range of material including material produced under subpoena.
In the circumstances of the Apprehended Domestic Violence Order protecting the mother and the children from the father at the time of the interviews and the children having not spent time with the father since March 2020, the court child expert formed the view that observations between each parent and the children was of limited value and would probably be disruptive and confusing for the children and was thus not conducted. There was no submission made by the father that this in any way limited the weight that should be placed on the report.
The court child expert had not been put on notice that she was required by the father for the purposes of cross examination and thus was not available for this purpose. The father was afforded the opportunity to make an application for an adjournment in those circumstances but chose not to do so. The father’s evidence was that he had read the Family Report prior to the commencement of the final hearing. The Family Report is thus unchallenged and uncontested.
The court child expert recommended in the Family Report that:-
·Unless the evidence before the Court suggests otherwise, it is recommended that an order be made for the children to live with the mother.
·Unless the evidence before the Court suggests otherwise, it is recommended that an order be made for the children to spend no time with the mother.
·Unless the evidence before the Court suggests otherwise, it is recommended that an order is made for the mother to have sole parental responsibility for the children.
Such recommendations are grounded by the court child expert’s opinion that the accounts provided by the mother, the maternal grandmother and the children suggest that the father was the primary perpetrator of violence against them in the form of coercive and controlling behaviour and the father’s behaviour may place the children at an unacceptable risk of harm.
In the event the court finds that the mother’s account of family violence is fabricated, the court child expert opines that the mother’s actions to limit the children’s time with the father has unduly disrupted their relationship with him. If the court determines that the children are not at an unacceptable risk of harm in the father’s care then the children may benefit from having a relationship with the father that progresses from supervised to unsupervised time.
Whilst ultimately it is a matter for the court to review the evidence and make findings as to factual issues significantly in dispute, the court child expert’s recommendations were unchallenged and I thus give significant weight to her report which is discussed in more detail later in these reasons.
THE LAW
Section 65D of the Family Law Act 1975 (Cth) (“the Act”) compels the court to make such parenting orders that are considered proper. Section 60CA provides that in deciding whether to make a particular parenting order the court is to regard the best interests of the children as the paramount consideration. This is confirmed in s 65DAA.
The children’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC of the Act.
The objects of the Act as set out in s 60B is to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60B(4) notes that an additional object of Part VII of the Act is to give effect to the United Nations Convention on the Rights of the Child (“Convention on the Rights of the Child”). Article 19 of the Convention on the Rights of the Child requires parties to the Convention to take steps, including through “judicial involvement”, to:
…protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
In reaching my decision I have considered all of the relevant sections of the Act. I am not required as a matter of law to specifically address each such consideration.
THE PRIMARY CONSIDERATIONS
The primary considerations as set out in s 60CC(2) are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, the court is to give greater weight to the need to protect the children from harm or being subjected to, or exposed to, abuse, neglect or family violence. Having regard to the allegations in this matter considerations of protecting the children from physical and emotional harm loom large.
Meaningful Relationship
A meaningful relationship is not measured simply by the amount of time a child is spending with a parent, but the quality of the relationship between them: Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520. This is an important consideration in this case given the length of time it has been since the children spent time with the father.
The Full Court in McCall & Clark (2009) FLC 93-405, 83,476 at [118]-[119]; [2009] FamCAFC 92 adopted what is described as the “prospective approach” with respect to considerations pursuant to s 60CC(2)(a) so that the Court:
…should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
Thus, I am not to assume that there is a benefit to the children in having a meaningful relationship with the father but rather am required to ascertain whether there is a positive benefit to them in the circumstances of such a relationship.
The Full Court continued in McCall & Clark (2009) FLC 93-405, 83,476 that:
[122]…No doubt in the majority of cases there will be a positive benefit to a child of 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.
I am conscious of the serious consequences of the orders sought by the mother and the Independent Children’s Lawyer that there be no time between the children and the father. As stated by the Full Court in Blinko & Blinko [2015] FamCAFC 146:
[30] …Whilst s 60CC (2A) demands that greater weight be given to the consideration in s 60CC(2)(b) – something entirely consistent with the approach of the Courts since the commencement of the Act – the particular facts and circumstances of each individual case nevertheless require a careful evaluation and balancing of considerations, and all the more so when what is at stake is the potential for a child to never know their parent.
The proposal of the father would mean that the children would after a period of time share a meaningful relationship with both of the parties.
Family Violence
In these proceedings there are a number of specific contentions about matters relating to the children’s best interests that depend in part upon findings as to the allegations of family violence including the allocation of parental responsibility. The standard of proof with respect to such findings is the balance of probabilities: see s 140 of the Evidence Act 1995 (Cth). Findings should be made in relation to abuse or family violence if “they are available and necessary to determine what is in the best interests of the child”: Amador & Amador (2009) 43 FamLR 268, 282 at [88]; [2009] FamCAFC 196. Proof to the reasonable satisfaction of the court “should not be produced by inexact truths, indefinite testimony, or indirect references”: M v M (1988) 166 CLR 69. When considering the best interests of the children it is not necessary to make findings of fact on every factual dispute of the parties.
Family violence is defined in s 4AB(1) of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.”
Examples of behaviour that may constitute family violence include (but are not limited to):-
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
Such behaviour must still meet the definition as contained within s 4AB(1).
Section 4AB(3) provides that a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence.” Section 4AB(4) provides a non-exhaustive list of situations that may constitute a child being exposed to family violence and includes seeing or hearing an assault of a member of that child’s family.
The terms “coerce” and “control” are not defined in the Act. Justice Gill analysed the terms “coerce and control” in Illgen & Yike [2018] FamCA 17 at [123]-[125] as follows:
123. Coerce is defined in the 7th Edition of the Macquarie Dictionary relevantly as
1. To restrain or constrain by force, law or authority; force or compel, as to do something. 2. to compel by forcible action
124. Control is defined in the 7th Edition of the Macquarie Dictionary relevantly as:
1. To exercise restraint or direction over; dominate; command
125. The phrase “coerces or controls” is expressed disjunctively. However it may be seen that the two concepts are closely related. Together they form an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command…
Judge Beckhouse in Ramzi & Moussa [2022] FedCFamC2F 1473 stated at [45] that:
generally, coercive control is understood as a course of conduct aimed at dominating and controlling another person, including a family member.
In Carter & Wilson [2023] FedCFamC1A 9 Deputy Chief Justice McClelland and Justice Campton sitting as the Appellate Division stated at [10] that:
The assessment of whether conduct that falls within one of the provided examples constitutes family violence as defined in s 4AB(1) of the Act necessarily requires that conduct to be considered in the context in which it occurred.
A party does not require their evidence as to family violence to be corroborated before it can be accepted by the court: Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46.
The Father’s Allegations
Whilst the father expressed concern to the court child expert that the children may be at risk of physical and/or psychological harm whilst they are in the mother’s care, the father does not contest the children continuing to live with the mother. Whilst the father alleged to the court child expert that the mother was verbally abusive towards him during the relationship, such allegations were not put to the mother during the trial. No submissions were made by the father that the children were at any risk in the mother’s care. No submissions were made by the father that the court should make any findings as to the perpetration by the mother of family violence. I am satisfied in those circumstances and find that the children are not at risk of being subjected to or witnessing family violence in the mother’s care.
The Mother’s Allegations
Thus the findings to be made arise from the mother’s allegations of family violence perpetrated upon her by the father both during and subsequent to the parties’ relationship. The mother alleges that the father was erratic, intimidating, controlling, and verbally, physically and psychologically abusive during the course of the relationship “with an escalation of such behaviours and threats of harm after she requested a divorce.” She asserts that the children were also subjected to and witnessed verbal abuse and intimidating behaviours.
The mother reported to the court child expert that her relationship with the father at first was good, however his attitude and demeanour changed towards her when she fell pregnant with Y and he sent her to Country P for three months as he “needed a break from the family” and “didn’t know if he wanted all this.” The mother asserts that the father’s attitude and demeanour worsened again after Z’s birth and that at this time she became too scared to talk to the father because she was unsure as to how he would respond to her.[1]
[1] Family Report, paragraph 27.
Criminal Charges for Stalking/Intimidation and Application for an AVO of 2020
The mother deposes between April-July of 2019 she and the father were upstairs in the lounge room at the Suburb H property. The children were playing on the trampoline and the maternal grandmother was downstairs. At this time the father said to the mother:
If you think you are going to take my kids away from me I will kill you, them and myself.
The mother deposes that she instantly felt afraid and could feel hairs standing up on the back of her neck. When the mother responded “What the hell are you saying? You will kill the kids?” the father said:
If I can’t have you all, no one will. I have thought about all the ways I could kill you. I brought rat poison from the internet to put in your drink. No one could put it back to me because I deleted the internet history. I could push you off the balcony and make it look like an accident. I could suffocate you with a pillow while you slept.
The mother deposes that she quietly said to the father: “You are making threats against me and the kids.” The father replied:
I’m just telling you what will happen if I don’t get what I want, if I don’t see the kids every day. Just remember that I will do this if you try to take the kids from me. I am not scared of anyone.
The mother deposes that she was so afraid that she could not be near the father after putting the children to bed and laid on the couch in the lounge room that evening but was unable to sleep. She asserts that she called Suburb Q Police Station later the next day but did not attend personally to make a statement as she was afraid she would not be believed and the father would find out she had told the police.
The mother deposes that from that point forward, from “time to time” if the father was angry or the mother did not do what he wanted, he would say “Just remember what I will do. I told you what I will do. Remember that.”
The mother deposes that on 13 May 2020 she and the father had a telephone conversation as follows:-
MOTHER: I want to proceed with getting divorced. We have been separated for a long time now and we need to live apart.
FATHER: You can start divorce proceedings. I will destroy your business in court.
MOTHER: And what about the kids, I’m not going to sign them over to live with you. What happens?
FATHER: You know what’s gonna [sic] happen after that, you know. I told you last time what’s gonna [sic] happen, I don’t have to say it again and again and again, you know what’s gonna [sic] happen.
The mother deposes she had renewed fears for the safety of herself and the children and immediately attended Suburb Q police station. The mother and maternal grandmother stayed in a hotel overnight. It is uncontested that the father called the mother repeatedly during the night and sent the mother a number of text messages including the following day at approximately 6:30am that said:
I will be home at 11. I want MY children there when I get home.[2]
[2] Mother’s Affidavit, paragraph 31.
The mother and the children stayed in the hotel for another six nights.
Whilst the father’s affidavit does not specifically mention the alleged conversation between the parties in April – July 2019, he denies ever threatening to kill the mother, the children and himself if the mother “took” the children away from him. The father asserts that what he had said during one of their arguments was:-
You know what’s going to happen. I told you last time what’s going to happen. I don’t have to say it again.[3]
[3] Father’s Affidavit, paragraph 45.
The father deposes that this was said in:
reference to a previous legal threat to the mother to raise issues of sex happening in her [business] and her failure to declare cash payments as income. I was unhappy [Ms Rabbani] had refused to acknowledge the money that I had contributed to her business, and made these threats to her as a consequence.[4]
[4] Father’s Affidavit, paragraph 45.
As to the alleged events on 13 May 2020, the father deposes that the parties argued over the telephone about the children’s photographs being placed on a social media advertisement for her business. The mother advised him that it was her sister that had posted the image. The father tried to call Ms R, the mother’s sister, but the call did not go through. Tendered evidence then shows the father sent a Facebook message to Ms R stating:
if I see any more photos of my kids on Facebook you will see me personally knocking on your door.[5]
[5] Father’s Affidavit, paragraph 40.
The father deposes that he had a further conversation with the mother and told her what he did whereupon she told him that he had made a threat to her sister. The father’s reply was: “It’s not a threat.” The evidence shows the father then exchanged text messages with Ms R’s husband, Mr S, who also asserted that the father had threatened his wife which the father denied:
Knocking on your door and asking your wife in what right she has used my kids photos is NOT a threat mate.[6]
[6] Father’s Affidavit, annexure A.
There was no one at home upon the father arriving home and at 9:18pm he sent the mother a text asking when the children would be home. At 10:00pm he sent the mother a text telling her he was at the front of the business premises “to make sure that everyone is alright.” At 10:07pm the father texts the mother:
Are you inside the [business premises]? Are you safe? Call me before I break the door. I wanna check that everyone is safe.[7]
[7] Father’s Affidavit, annexure B.
At 11:12pm the father texts the mother to tell her that he is:
..on the way to your sister’s house to check about my kids. Are they safe? Why no one is not answering my calls.[8]
[8] Father’s Affidavit, annexure B.
The application made by Senior Constable T attached to the application for the Provisional Apprehended Domestic Violence Order obtained for the protection of the children and the mother records:
·The alleged threat made by the father in mid-2019 to the mother to kill the children, the mother and them himself if the mother took the children away from him.
·That subsequent to this threat the father reminded the mother what he would do if she took the children away from him.
·That on Saturday 9 May 2020 the parties were at home when the father told her he was paying someone to follow her friend and questioned her about her contact with that male friend.
·On 13 May 2020 the parties had several phone conversations and argued about the children being placed on social media when the mother “pushed” for a divorce whereupon the father told the mother to “remember what he told her about leaving with the children.”
·The father was placed under arrest and during his conveyance to the police station stated that he records all of the conversations between himself and the mother. The father provided police with access to the recordings and they heard the mother tell the father she wants a divorce and she doesn’t want to sign over the children and then asks the father “what happens.” The father is heard to reply:
You know what’s gonna [sic] happen after that, you know. I told you last time what’s gonna [sic] happen. I don’t have to say it again and again and again. I told you last time what’s gonna [sic] happen.
The transcript of the police interview with the father was tendered into evidence without objection. Such transcript records the father stating to the police:-
·He did not threaten to kill the mother and himself.
·He told the mother that he was going to fight for full custody of the children and said to her “if you’re gunna [sic] fight back for the custody, I’m going back after your business. Because I know things about her business that can actually destroy her business.”
·That he told the mother he would “go after the business” in almost every argument that they had. But that “it’s not a threat, but I said to her, if you wanna [sic] take the kids, I wanna [sic] go after your business.”
·He states he told her:
“I’m gunna [sic] tell everyone on Facebook that what’s been happening in your business”, stuff like that. Or like, “wait and see what gunna is [sic] happen. If we’re gunna [sic] end up divorced because of the business, see what’s gunna [sic] happen for you.”
By the above comments the father meant he would take the mother to court and destroy her business.
·When asked how he thinks this makes the mother feel, the father replied “Angry”. When asked if it would make her feel scared, the father again replied “Angry”.
·He then states: “So, obviously, she destroyed the marriage and she destroyed the family. ….So to take revenge legally by, for this, I will destroy her business” by going through courts.
·The transcript records the following exchanges between the New South Wales Police Officer and the father:-
SENIOR CONSTABLE [T]: In 2019, did you ever say anything relating to, or that might’ve be construed, “if you take the kids from me, I’m going to kill you then myself?”
FATHER: No…. I tell you how she takes it, for example, when we talk, forget the argument, when we talk, for example, and I say to her “I would sacrifice the whole world for my kids.” “Ah, are you gunna [sic] sacrifice me, or uh [sic], are you gunna [sic] kill me?” Mate, it’s an expression. Or, for example, “I would burn the whole world for my kids.” “Are you gunna [sic] burn me alive, are you gunna [sic] kill me?”
SENIOR CONSTABLE [T]: And that’s…[the] wording that you’ve used with her?....
FATHER: ….Yeah…..Also, for example, I, um, I’ll tell her, for example, “I’ll give myself for my kids.” “Are you gunna [sic] kill yourself?” Mate, it’s only an expression.
·The father showed the police officers a photo that he sent to the mother which says “Does anyone know.” And the photo reads: “Does anyone know what’s happening at the mother’s business at U Street, Suburb V? Sex where the kids are.” He conceded that he put it in a way that he was going to post it so as to force the mother into contacting him, but he did not post it. When asked how that would make the mother feel, he answered “I dunno [sic] and I don’t care.” The father conceded to the Police Officer that that is “somewhat” controlling behaviour.
·The father then showed the police another message sent to the mother at 1:00am:
“I know you're at your, I know you're at your dad's house and your mum is at [Ms R]'s. I just came back from your sister’s house. The childish drama you've all done is totally unacceptable. You took my kids and ran away, which I will deal with when you come back. You're not gunna [sic] stay at your dad's forever. At the end of the day, you are coming back home. Can you imagined [sic] I've done that to you and what will your reaction be? But I will never do that for my kids, my kids are priority in my life and I will do everything to protect them. If you just answered my calls, you wouldn't put yourself in this situation, I just wanted to know that the kids are safe...
·The interaction between the police officer and the father is insightful:
SENIOR CONSTABLE [T]: Mate, that, that kind, the, the message you’ve sent, you can’t be sending those type of messages.
FATHER: Why?
SENIOR CONSTABLE [T]: Because you’ve coerced her into contacting you. You’ve…shown her a photo…you’ve threatened her in a way, “if you don’t call me, I’m posting this up.”
FATHER: Yeah.
SENIOR CONSTABLE [T] Ok.
FATHER: But what’s the difference between this and when I just told you, when we have an argument I say to her…. “If you go for divorce, I wanna [sic] go after your business.”
In 2020 the first two criminal charges and the application for an Apprehended Domestic Violence Order were listed at Suburb B Local Court. On this date the father pled guilty to threatening the mother’s business and a disputed facts hearing was held in relation to the allegation that the father threatened to kill the mother and the children.
The magistrate on the evidence was not satisfied beyond reasonable doubt that the father threatened to kill the mother and the children. He was satisfied that the threat to destroy the mother’s business had been made by the father and the father was convicted on both counts of the stalking charges and placed on a conditional release order for a period of 18 months. A final Apprehended Domestic Violence Order was made for the protection of the mother and restricting the behaviour of the father for a period of two years; expiring in 2022. Such order prohibited the father from approaching, contacting or attending within 100 metres of the workplace, schools or residence of the children and the mother other than through a lawyer or pursuant to court orders as to time with the children.
The father filed a severity appeal against the sentence received for both charges. Such severity appeal was successful as detailed in paragraph 13 above.
The father has admitted to threatening to destroy or damage the mother’s business on numerous occasions and I find that this was so. He has further admitted to coercing the mother into contacting him and I find that this was so. The factual issue remaining in dispute is whether the original threat made by the father to the mother was a threat to her business or a threat to kill himself, the mother and the children.
The mother is clear and detailed in her recounting of the event in April-July 2019. She was a credible witness. Whilst the conversation as alleged by the mother does not put the father’s alleged threat into context in any way it simply has the father making this threat “out of the blue”, the mother was not challenged by the father as to her version of events in the witness box. I am satisfied to the degree prescribed by section 140(2) of the Evidence Act 1995 (NSW) having regard to the seriousness of the allegation that the father did threaten to kill himself, the mother and the children between April and July 2019. This grounding is founded upon the evidence contained within paragraphs 62-67 above.
Charge of Breaching the AVO and a Further Criminal Charge of Stalking/Intimidation of 25 September 2020
On 19 July 2020 the mother deposes that the father attempted to pass a message to her through the ex-wife of the father’s brother; Ms W. Ms W deposes that on 19 July 2020 she was pulling in the driveway of her ex-husband’s home to deliver their children to him. She saw the father standing near the mailbox. The father walked to the passenger side of her car door after her children had departed from the vehicle and the following conversation occurred:
FATHER: Can you send [Ms Rabbani] a message from me?
[MS W]: Depends what it is, you shouldn’t be sending her messages.
FATHER: Can you do it or not, otherwise I’ll find another way. Look at this, what is it I am holding? This is a Q’aran, yea? [sic]
[MS W]: yea? [sic]
FATHER: I’ve sworn on it three times, the kids either live under my rules, or they don’t live at all. You tell [Ms Rabbani] to fix this and use her brain properly. My children will not live as Christians or atheists.
[MS W]: You’re saying you’re going to kill your kids? Do you hear what you are saying?
FATHER: What would you do, if you were in my position?
[MS W]: I need to go.
FATHER: Can you give her the message or not? I will find another way unless you do it.
[MS W]: Fine I’ll give her the message.
The father then closed the door and Ms W drove away. Ms W telephoned the mother and told her what had occurred. Ms W thereafter provided a statement to the police. On this same date the father was arrested and charged with breaching the Provisional Apprehended Domestic Violence Order on 19 July 2020 and with a further count of stalk/intimidate intending to cause fear of physical or mental harm. He was refused bail.
The father does not directly address the allegations made by Ms W in his affidavit. He annexes a copy of the police fact sheet which records that in the police interview the father denied all the allegations that were made and stated that he did see Ms W at his brother’s home however the conversation never took place as alleged by her.
In 2020 the second two stalking charges and the breach of the Apprehended Domestic Violence arising from the 19 July 2020 incident were listed at Suburb B Local Court. The father maintained his pleas of not guilty and the matter proceeded to a defended hearing. Ms W gave evidence for the prosecution. The father was convicted on both charges and received a two year supervised conditional release order with respect to both charges, to be served concurrently. He was released from custody.
On this date the final Apprehended Domestic Violence Order was varied to include the children as protected persons.
The father filed an all grounds appeal; being both as to the convictions and the severity of the sentences. In 2021 the father’s all grounds appeal was heard by the District Court at Suburb K. The appeal as to the convictions were dismissed and the convictions upheld. The severity appeal was successful and the sentence was varied to conditional release orders for a period of two years without conviction for both charges.
Notwithstanding the fact that the father was convicted in both the Local Court and his appeal from such conviction was dismissed, the father continues to deny the factual basis of his criminal convictions. He did not require Ms W to be available for the purposes of cross examination. It was not put to her that her evidence was inaccurate, a mistake or a mistruth. I accept Ms W’s evidence. I am satisfied and find that on the 19 July 2020 the father threatened to kill the children to Ms W.
The Father’s Response to the Balance of the Mother’s Allegations
Apart from the incidents giving rise to the criminal charges and convictions above, the father’s affidavit only addresses the balance of the mother’s allegations as to family violence between he and the mother as set out in her affidavit and reported to the court child expert in the following manner:
Although we argued frequently, there was never physical violence.
The father does not address any of the allegations made as to his behaviour toward the children. He does not address any of the allegations as to him damaging property, verbally abusing and denigrating the mother and various forms of coercive and controlling behaviour as particularised below. The father only took the opportunity to deny specific allegations put to him in cross examination.
The cross examination of the mother was surprising in its brevity given the serious nature of the allegations of the mother in this matter. The mother was cross examined for a total of 67 minutes. Not one of the specific allegations made by the mother in her affidavit or by her to the court child expert were put to the mother during the course of her cross-examination. The mother was not cross examined as to what the police records indicate that she has told the police. It was not suggested to the mother that she had been untruthful or had any ulterior motives in making the allegations she did to the police, in her affidavit and to the court child expert.
I will therefore detail below the balance of the allegations made by the mother as to the perpetration of family violence by the father upon herself and the children prior to detailing the answers of the father to those allegations only given during the course of his cross examination.
Threats to Harm
The mother expressed to the court child expert that the father informed the mother that he did not like the neighbour of the mother’s business and would arrange for “someone to hurt him”. The father told the mother that he would “get me [the mother] when I am at the premises alone, so it can look like a robbery so no one would suspect anything.”
The mother deposes that the father threatened to kill her on multiple occasions. The mother told the court child expert that the father said “the only way you are going to leave me is in a box” and further that he threatened to throw her off the balcony and it would appear to be an accident because the balcony was already damaged. The father would threaten to put rat poison in her drinks and as a result she did not eat or drink anything he had prepared and did not let the children do so either. She recalled to the court child expert one occasion that the father had prepared a meal and offered it to her, the maternal grandmother and the children and he became angry when they did not eat it.
Physical Assaults and Property Damage
The mother alleges the father physically assaulted her in August 2019 as detailed in paragraph 105 of these reasons.
The mother told to the court child expert that the father had at times used physical force during their relationship. He has thrown items across the room and threw a meal that she had prepared in the bin. Subsequent to the parties separation the father destroyed a delivery of diet drinks she had ordered and sent her a text message stating “this is what happens when you don’t answer [my] calls.”
Verbal Abuse and Denigration
The mother alleges that the father was verbally abusive towards her during the relationship calling her “fat, stupid, a slut, worthless, a piece of dirt [and tell her she] had no brain.” The mother asserted to the court child expert that the father would yell at her regarding minor issues on a daily basis including what he wanted for dinner and often told her that the mother was the reason “his life was so bad.”
The father would often say to her “All the arguments we have are your fault. If I left you, you would be nothing. You are stupid. You have no brain. I wish I never married you.”
In approximately 2017 when the parties commenced living at the home of the maternal grandmother the father said to her: “your mum knows I’m right and you are wrong. She doesn’t even stick up for you.”
The maternal grandmother alleged to the court child expert that the father was volatile, verbally abusive, agitated and controlling towards the children and the mother. She reported that she was shocked at the father’s denigration of the police and the legal system. The maternal grandmother stated that whilst the father did not behave in an abusive manner towards her, he did speak about the mother in a derogatory manner to her. She stopped speaking assertively to the father because he would react badly or “take it out” on the mother. The maternal grandmother reported that she and the mother established a code phrase of informing each other when the father was home. She deposes that during the three years that the mother and father lived at her home, she often felt as if she was “walking on eggshells.” She was especially mindful to not upset the father as she learned that if she did, he would take it out on the mother.
Controlling Behaviour
Until approximately 2013 the mother’s income was applied to a joint account, however the mother was unable to access any funds without the father’s signature. The father gave her $250 a week for expenses. After X’s birth the mother started receiving Centrelink payments. The father required her to pay the rent from this money which left her with $100 to purchase groceries. At some stage the father gave her a secondary card on his credit card account with Bank AB. The father limited what the mother could spend on groceries and would interrogate her if she spend more than the amount designated by him. The father would react badly when the mother spent more money on the children than determined by him and to avoid this the maternal grandmother would tell the father that she had purchased the items such as clothing or toys.
Until the parties moved into the home of the maternal grandmother the father required the mother to tell him if she was leaving the house. If she did not, the father would not talk to her for a week or more and then would say:
I am not going to stay married to you, you’re not a good wife. I will take the children, you are not fit to be their mother. I should have married a [Country P] girl. It’s for your own good I need to know where you are all the time, to make sure that you are safe.
The mother would tell the father of the plans she had during the week or in the morning on the day to avoid arguments. On days she told the father she was meeting a friend for lunch or taking the children to see her friends and play with their children the father would contact her and require her to leave to run an errand. Once she had completed the errand for the father at home he would tell her that it would not be practical to see her friend again that day because it would then be time to collect the children from school. The mother gives two specific detailed examples of this occurring as detailed below.
In approximately 2019 the mother and children were attending a BBQ. The father had told the mother she was to be home with the children by midnight. At approximately 11pm she realised she had left her mobile phone in her car and upon retrieving it saw she had missed calls from the father and her mother. Upon calling her mother she was told that the father was “really mad” and she needed to get home immediately. Upon telephoning the father he yelled abuse at her and told her to get home. As she arrived home the father was waiting on the road and screamed and swore at her in front of the children. Whilst the mother was putting the children to bed the father was continuing to yell at her and went into Z’s room. She followed him, concerned that the father would take Z and leave. Her hand was in the doorway and the father slammed the door on it, jamming her fingers. She screamed in pain and the maternal grandmother ran up the stairs and yelled at the father to get out of the house. The father then began yelling at the mother and the maternal grandmother. He took the mother’s car keys and said:
You are a slut! You can’t have the car anymore. If you want to go anywhere, get groceries, take the kids to school – then you can walk or get public transport.
The mother telephoned the father a couple of hours later after asking the maternal grandmother to sit with her for support. The father told the mother she had to apologise for everything she had done before he would give her back the car keys. The mother told the father that she was home before midnight to which the father replied: “You didn’t answer my calls. This is your fault. You must apologise.”
The mother was concerned as to the father’s behaviour on returning home if she did not apologise and how she would transport the children without a motor vehicle, and so she apologised to the father. Upon returning home the father told the mother that she was able to use the car to take the children to school but was not to use it to go to work. When she arrived home she was to give the car keys back to the father; she was not to keep them herself. For the next four months the father required the mother to provide him with the motor vehicle keys whenever she returned home.
The maternal grandmother reported that the father called the mother regularly when she and the mother were shopping together and make demands of her. Upon asking the mother why she acquiesced to the father’s demands, the mother stated: “If I don’t, all hell will break loose.”
In approximately 2015 when the parties lived in Suburb AC he said to her: “I know when you are on the balcony of the unit. I have someone watching the house who reports what you are doing to me.” The father would say to the mother: “Tell me what you just did. I have someone following you. You parked badly today.” He would then show the mother photographs of her parked car in a WhatsApp conversation on his phone, covering the name of the contact. The mother deposes as to one example being a photograph she saw of her car parked in front of the mother’s work premises door, and not between the lines in a parking spot. The mother repeated these allegations to the court child expert.
From approximately 2000 and onwards the father said to her: “I have had the home bugged with listening devices so I know everything that is going on.”
The mother alleges that the father required to see what the mother was wearing each day and if he did not like it she was required to change. The father conceded in cross examination that he sometimes told the mother what to wear.
Misogynistic Views
In late February of 2020, following the news report of a father in Brisbane who murdered his wife and children by burning them in a motor vehicle before committing suicide, the father said to the mother:
That’s what every man should do. The government needs to understand what happens when it’s always the woman’s way.[9]
[9] Mother’s Affidavit, paragraph 85.
This evidence is supported by the maternal grandmother who deposes that in late February 2020 she arrived home from work and saw a news preview about a man who had killed his wife and children by burning them in the car. The father said words to the effect:
This is what should happen, the law is for all the women, nothing for the men. Every man should do this.[10]
[10] Affidavit of Ms AD, paragraph 34.
The maternal grandmother was shocked and said: “He killed his wife and children…How can you say that?” The father replied: “This is what happens.”[11]
[11] Affidavit of Ms AD, paragraph 34.
In February of 2020, the mother deposes that the father arrived home from work and the maternal grandmother asked him how his day was. He replied saying “Same shit different day. Another stupid woman arguing with me. No female has a brain.” When the maternal grandmother responded saying “I am a female and Ms Rabbani is a female” the father said “No woman has a brain that includes you, Ms Rabbani, my daughters and my mother.”[12]
[12] Mother’s Affidavit, paragraph 112.
This evidence is supported by the maternal grandmother who deposes that around Easter in 2020, she was outside with the father when he said “all women are stupid. That includes my mother.” The maternal grandmother responded “No we aren’t” and the father said “Yes they are.” [13]
[13] Affidavit of Ms AD, paragraph 35.
Harm to Children
The mother deposes that in 2017 when Y was two years old she woke from a sleep and was crying. The father became angry as it took the mother some time to settle Y and he yelled “Stop crying!” in Y’s face. Y’s crying increased and the father slapped her across the face so that a red handprint was visible on Y’s face. The mother intervened and subsequently settled Y. Subsequent to this occurring the mother would only settle the children in their bedrooms.
The children would stay in their bedrooms when the father was home. When the father was home he would yell at them: “Go to your room, you are so loud!” The mother further alleged to the court child expert that she had observed the father raise his voice to the children and tell them to go to their rooms. She subsequently ensured that she managed the children’s difficult behaviours as a means of protecting them from the father’s harsh discipline. X supports this allegation, stating to the court child expert that the mother would question the father about why she had to go upstairs or was not allowed to get a snack.
It was the mother’s evidence in cross examination that the father spoke to the children in an abrupt manner and that she spoke to him about this but it did not change.
The mother alleged to the court child expert that the father threatened to kill the children towards the end of their relationship. He threatened to suffocate them with a pillow and then kill the mother.
X was clear in her reporting to the court child expert that she saw her parents fighting and yelling and stated that the father would fight with the mother “for no reason.” She reported that the mother would simply ask the father to stop yelling because it was not good for the children. X told the court child expert that sometimes her father was “a little angry” and “sometimes happy.” She felt scared of her father when he was yelling “especially when everyone was asleep.”
When asked questions by the Independent Children’s Lawyer as to the children’s comment to the expert the father stated that: “The kids can say anything you teach them.” When asked if he was asserting that the mother had coached the children, the father’s reply was ambiguous: “I’m not saying that. I could be right I could be wrong.” The father asserts that he would ensure that the children were in their rooms when the parties argued and that, in any event, the parties only ever argued during the night and not during the day.
As set out above in these reasons, it was only in cross examination that the father took the opportunity to deny the allegations as to family violence alleged to have been perpetrated by him upon the children and the mother. Specific allegations were put to the father and he denied, without explanation for the most part, the following allegations:-
·That he had threatened to kill the mother and the children in April 2019.
·That he told the mother he had purchased rat poison and threatened to suffocate her with a pillow whilst she slept.
·That he slapped X across the face: “I didn’t slap any of the kids”.
·That he said whilst watching a news report: “That’s what every man should do.”
·That he restricted the mother’s spending during the marriage or where she went.
·That he called the mother a “slut.”
·That he took the car keys from the mother and kept them from her for four months.
·That he said to the mother: “If I left you would be nothing, you are stupid.”
·That he told the mother that he had someone watching the house.
·That he told the mother he had the home bugged: “Never said that, that is a new thing today.”
In response to the allegation that the father showed the mother a photograph of her car the father’s only response was: “Where is the photo? Where is the photo?”
The father’s answer to the proposition that he stated that “no female has a brain” simply was “half of the story is right”. The father did not give evidence as to what the other “half” of the story was. The father did not take the opportunity to clarify this evidence in re-examination.
Further Findings as to Family Violence
The evidence of the mother and grandmother is clear, detailed and consistent. They were both credible witnesses. I found their emotional response to giving evidence to be genuine. Save and except for the matters grounding the father’s criminal convictions, the father provided no alternate version of events in either his affidavit, via re-examination or cross examination of the mother and maternal grandmother. Save for the criminal charges, the father’s denials as to specific allegations came only via him being asked about them in cross examination. The father did not submit that there were inconsistencies in the mother’s or the maternal grandmother’s evidence such that it should not be believed. The father did not require the court child expert to be available for cross examination and thus did not challenge in any way her reporting as to what the mother, the maternal grandmother and the children had all reported to the court child expert.
I am satisfied and find that the father has perpetrated very serious family violence upon both the mother and the children as detailed in paragraphs 60 to 125 of these reasons. Such family violence included:-
·Threatening to kill the mother on multiple occasions.
·Throwing items and food across a room or into the garbage bin.
·Denigrating and verbally abusing the mother including calling her “fat” and “useless” and that she “had no brain”.
·Controlling the mother’s social interactions and application of funds.
·Physically assaulting the mother in August 2019 by slamming the door and jamming her fingers.
·Telling the mother he had someone watching her and had the home bugged with listening devices.
·Expressing hostile and misogynistic view on to women.
·Physically assaulting Y in 2017 by slapping her across the face.
The mother reported to the court child expert that despite her best efforts, it appears that the children were exposed to parental conflict and family violence. She stated that, “once [Mr Rabbani] left home, the girls said it’s a happier place now that [he is] not here. They said they heard arguments and me telling him to shoosh [sic]…. I felt sad as I thought I was able to protect them.”
I am further satisfied and find that, at the least, X and Y were present during such arguments between the parties and witnessed the father yelling at the mother.
The court child expert opines that the mother’s allegations are consistent with coercive and controlling behaviour, both during and subsequent to the parties relationship. I am satisfied and find that this is so.
Other Risk Issues
Mental health issues
The mother has never been diagnosed with a mental illness. She reported to the court child expert that to support her emotional well-being and learn how to appropriately support the children she saw a psychologist from May until December 2020. She advised the court child expert that retelling the events has been challenging and she may again seek the support of her psychologist. I am satisfied that no risk issues arise for the children from the mother’s mental health.
The mother raised concerns with the court child expert as to the father’s mental state as a result of his behaviours but stated that he has never been diagnosed with a mental illness.
The father deposes that since being permitted to re-engage with these proceedings he has commenced psychological treatment with Ms AE from AF Psychology. Documents from AF Psychology were tendered by the father during the course of the hearing and marked as Exhibit “E” as evidence that the father has attended on Ms AE monthly from July 2022 to January 2023. The father deposes that he intends to continue seeing Ms AE.[14]
[14] Father’s Affidavit, paragraph 77.
The Mother’s Business Premises
The father is clear in his disapproval of the children attending the mother’s business premises. He conceded in cross examination that he told the mother that the business was “haram” which means “forbidden” and that he believes the business is “wrong”. He expressed concern to the court child expert that the children do not have an appropriate place to change at the work premises and thus other adults may see the children “half naked.” He further expressed concern that the children are vulnerable to predatory behaviour of others because their images have been placed on social media advertising of the business premises. The following exchange took place during the course of cross-examination:
FATHER: When I found out this place was inappropriate for the kids I didn’t want her to continue.
COUNSEL FOR THE MOTHER: When you say inappropriate – can you elaborate?
FATHER: It’s a place for sex between adults after hours – I didn’t know that before. There are male neighbours who come in and out, the kids are probably full or half naked. I didn’t want my kids in this place, not my kids or any kids.
There is no affidavit evidence by the father as to these concerns. There is no basis to ground the father’s assertion given only in oral evidence that the business premises is used for anything other than children’s sporting activities. He does not seek any injunctive orders to restrain the children from participating in sporting lessons or attending the business premises, nor does he seek any restraints upon the children being placed on social media. In any event, the father conceded that this alleged activity does not occur in the presence of the children. I am satisfied that the business premises and the children engaging in activities does not pose any risk of harm to them.
THE ADDITIONAL CONSIDERATIONS
Turning now to the additional considerations as set out in s 60CC (3) as are relevant in this matter to determine what is in the children’s best interests.
The extent to which the parents have taken the opportunity to participate in making decisions about major long-term issues or spend time or communicate with the children
The father has not had any time with the children, either face to face or by electronic means, since May 2020 despite the interim orders made by consent on 8 July 2021 providing for the father to spend supervised time with the father each alternate Sunday. Supervision was to be undertaken by D Contact Centre Australia and paid for by the father until E Contact Centre were able to facilitate the children’s time with the father. Each party was to contact D Contact Centre within 7 days to commence the process. The father was to be responsible for and pay all costs arising from such supervision other than the costs of the mother’s intake assessment.
When X was asked by the court child expert about her father, she stated that she had gotten used to his absence.
Y told the court child expert that she did not remember much of the father and stated that: “sometimes loves us, he is brave, sometimes he is mad, sometimes excited [and] sometimes surprised.” The court child expert stated that Y reported that she felt scared of her father when he screamed at her mother.
Z did not mention his father at interview when discussing his family. Z said that he has “two mums” referring to his mother and the maternal grandmother. He did not mention his father when discussing his family. When asked about his mother, he said “mum always takes care of me” and feeds their dog.
The court child expert was of the opinion that Z has no apparent pre-existing relationship with the father and both X and Y appear apprehensive. It was the court child expert’s unchallenged opinion that:
With regards to the children’s relationship with [Mr Rabbani], it would appear that both [X] and [Y] are ambivalent about spending time with [Mr Rabbani], and [Z] appears to have no memory of him at all. This is likely due to [Z]’s age at the time of separation.
The children have not seen the father for over two years. I am satisfied in these circumstances and having regard to their reporting to the court child expert which I accept, that their relationship with the father is fractured. I accept and find as reported by the court child expert that it appears that both X and Y are ambivalent about spending time with the father and Z appears to have no relationship with the father at all.
The extent to which each of the child’s parents has fulfilled their obligations to maintain the children
There is no current child support assessment in place. The father has not provided any form of regular financial support for the children subsequent to the parties’ separation. In June 2020 the mother applied for a child support assessment but was deemed exempt due to family violence and the mother receives supplemented welfare payments in lieu of a child support assessment issuing to the father.
The father conceded during the course of cross examination that he has made one payment in the sum of $1,125 for orthodontist fees but has not otherwise provided regular financial support for the children. His oral evidence was that if he had received any documents from the mother then he would have paid, but otherwise he has not attempted to support the children financially as he was concerned that “the court will get the wrong message.” It was never explained nor submissions made to the court as to what message the court would receive of a negative nature in the father financially contributing towards the costs of the children.
The likely effect of any changes in the children’s circumstances
The orders sought by the mother and the Independent Children’s Lawyer would not involve any change to the circumstances for the children as they have not spent time with the father for over three years.
The mother was candid and open in her evidence that X was asking for the father in the beginning, and Y said the house was happier. The maternal grandmother willingly conceded that the children probably do miss their father, but there has been no talk of him with her.
The court child expert opines that whilst it is possible that X and Y will experience some grief surrounding the loss of their relationship with the father, the children appear to have adjusted to his absence – X herself reported to the court child expert that she had gotten used to the father’s absence. The court child expert was of the opinion that the children will likely be protected from further psychological harm associated with the loss of their father if the mother continues to provide the children with age appropriate information and empathy as she has done in the past.
The practical difficulty and expense of the children spending time with the father
There is no evidence as to any practical difficulty of the children spending time with the father.
Despite the father citing, amongst other things, an inability to afford supervised time with the children, the relief sought by him seeks that the children’s time with him commence on a supervised basis.
Any other relevant fact or circumstance
The husband’s evidence during the course of cross examination was that he had been prescribed at one time medication for a medical condition. His evidence in this regard was inconsistent and contradictory. His first given reason was that he was prescribed medication as “I had unsafe sex a couple of times”. He did not inform the mother of this because “legally I didn’t have to”.
The husband conceded that his engaging in unsafe sexual relations occurred during the course of the parties’ marriage, but then could not recall if he was taking medication before or after separation. He did recall that he was still living in the home with the mother, children and maternal grandmother when he was prescribed the medication which he was required to take for a short period of time. The father then asserted that it wasn’t unsafe sex; he just wanted to be safe. Whilst he understands that “diseases can be transmitted through bodily fluids” he didn’t tell the mother because “I was told legally I don’t have to”.
DISCUSSION AND DETERMINATION
Returning to the agreed issues the court must determine.
Whether the resumption of equal shared parental responsibility is rebutted and Orders be made granting the mother sole parental responsibility.
Having regard to my findings of family violence above the presumption pursuant to s 61DA of the Act that it is in the best interests of the child that the parents have equal shared parental responsibility is rebutted as there are reasonable grounds to believe one of the parties (or a person who lives with a party) has engaged in abuse of a child or family violence.
Having regard to the findings of family violence made, I am not satisfied that the parties would be able to communicate in a way so as to reach joint decisions concerning the children’s care. The mother has clearly expressed her fears of the father and I am satisfied and find having regard to my findings above that such fears are reasonable. Further, in circumstances where the parties have not communicated with one another since their separation I am not satisfied the parties would be able to jointly make decisions about long-term issues affecting the children. When the father was asked how he proposed to communicate with the mother he replied: “Need to ask my lawyer about that”.
The father himself during the course of final submissions conceded that it was “unreasonable” to press for an order for equal shared parental responsibility. I am satisfied that as the uncontested resident parent the mother should have sole parental responsibility for the children.
The father submitted during the course of submissions that in the event the court was to make an order allocating sole parental responsibility to the mother that the father would seek that the mother be required to notify the father of long-term decisions made by her. In light of my findings as to both the perpetration by the father of family violence and the mothers reasonable fear of him I am not satisfied that to require the mother to communicate in any way with the father is in the children’s best interests and would potentially cause her further fear and place her and the children at risk of harm. Accordingly the mother will not be required to communicate with the father in any way.
Whether the children are at an unacceptable risk of harm in the father’s care
The assessment of risk requires the consideration of two elements; the consideration of whether it is likely that some harmful event will occur and then a consideration of the severity of the impact caused by such harmful event. I must assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable: M & M (1988) FLC 91-979; [1988] HCA 68. (“M & M”) The assessment of unacceptable risk is a predictive exercise, postulated from known facts and present circumstances. It is not required to be proven on the balance of probabilities: Isles & Nelissen [2022] FedCFamC1A 97. The Court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which are proved to that standard. The concept of “unacceptable risk” falls within the broader issue of determining what is in the child’s best interests and to which the resolution of the existence of an “unacceptable risk” is subservient: (M & M) and B & B (1993) FLC 92-357.
I have found that the father has perpetrated serious life threatening and significant acts of family violence upon both the mother and the children. The consideration and determination of whether there exists an unacceptable risk to the children in spending time with the father will need to be evaluated in part by reference to these findings.
It was submitted on the father’s behalf that any suggestion of family violence “falls short” of conduct that would justify a no time order.
The court child expert clearly opines that in the event the allegations of the mother and maternal grandmother as to the father’s abusive manner towards the children and his attempts to negatively influence the relationship of X with the mother are accepted by the court, further contact with the children may place the children at an unacceptable risk of harm.
In matters concerning the welfare of a child, family violence and the effect of exposure to family violence must be considered and given weight: Zuen & Lhao [2020] FamCAFC 84 citing B & K [2001] FamCA 880. The Court Child Expert clearly articulates the risks associated with a child spending time with a perpetrator of family violence.
Being subjected to coercive and controlling family violence is known to have detrimental impacts on children, including their psychological wellbeing and physical safety. Family violence of this type is also associated with parenting deficits in the perpetrating parent, including inappropriate use of authority and/or coercive discipline methods that escalate to physical abuse, a limited capacity to separate the children’s needs from the perpetrator’s own needs, and a low tolerance for age appropriate behaviours.
There is of course the risk that the child themselves will be exposed to further perpetration of violence, either towards the victim-parent or the perpetrator’s new partner. As clearly articulated by the Full Court in Blanch & Blanch & Crawford (1999) FLC 92-837, 85,748; [1998] FamCA 1908, such exposure raises the serious dangers that children can:
…suffer insecurity, fear, unhappiness, anxiety and hypervigilance from witnessing abusive behaviour of a parent. Such effects present a threat to their emotional development.
Probably the worst danger to children is the role model that a violent parent provides which can lead to children themselves coming to suffer the serious social disability of using violence in their dealings with other people including those they love. Such a disability can destroy the most intimate relationships and bring the person into conflict with other people, the police and the law…
In her discussion of the potential risks arising from the father’s conduct it was the court child’s unchallenged expert opinion that:-
[Ms Rabbani] described family violence across multiple domains, which is most consistent with coercive and controlling violence, which pose a risk of lethality and significant harm. This type of family violence is generally characterised by a pattern of power and control by one partner over another, for the purposes of creating fear of, and submission to the perpetrator through the use of threats, continued verbal and emotional abuse, monitoring behaviours and actual harm. The subsequent effects on the victim can also vary depending on the longevity and types of abuse, in addition to the intensity of the abuse inflicted by the perpetrator.[15]
[15] Family Report, paragraph 104.
Later the court child expert opines that:
If [Ms Rabbani]’s allegations regarding family violence are found to have veracity, it raises concerns that [Mr Rabbani] will continue to act to exercise power and control over [Ms Rabbani] in parenting arrangements, and may take revenge upon [Ms Rabbani] for divorcing him by killing the children.[16]
…in the instance that [Ms Rabbani]’s account has substance, then the children spending time with [Mr Rabbani] would likely be to their detriment, and potentially result in the children being exposed to further parental conflict and/or family violence, psychological and physical abuse. If this were to occur, it is likely to adversely affect their mental and physical health. Further to this, if [Ms Rabbani]’s allegations regarding [Mr Rabbani] threatening to harm the children and/or kill the children has substance, an order providing for the children to spend time with [Mr Rabbani] may result in injury and/or death.[17]
[16] Family Report, paragraph 106.
[17] Family Report, paragraph 110.
I accept the court child expert’s unchallenged evidence. I accept and find that the father’s conduct in threatening to kill the children and the mother presents a risk to the children and the mother of serious harm or death. Such a risk is in itself unacceptable. These threats to kill and/or harm are only one form of conduct the father has perpetrated that grounds a finding that he presents an unacceptable risk of both physical and psychological harm to the children.
I must now then determine whether such risks can be mitigated to the extent that such an unacceptable risk becomes acceptable and sufficiently protective of the children were the father to spend time with them in the future.
The mother and the Independent Children’s Lawyer submit that there are no safeguards that could sufficiently ameliorate the unacceptable risk of harm arising from the father spending time with the children. The father submitted effectively that such risk could be mitigated by the father moving to unsupervised time after he has engaged in his treatment with AF Psychology; “perhaps a period of two years of more”.
The court child expert recommends that the father be referred to a registered men’s behaviour program but notes that the utility of such a program may be limited where the father has consistently denied perpetrating family violence. The father does not accept the risks alleged by the mother. He stated in cross examination that he does not have an anger problem. Whilst he has admitted that he threatened to take “revenge” on the mother by destroying her business, he appears to feel that a mitigation of this threat was that he proposed to undertake this course “legally.” It was submitted that father accepts that his communications with the mother “may have” been poor but that to his credit he has engaged with AF Psychology to help him deal with those aspects of his behaviour. The father otherwise does not acknowledge his behaviour and continues to deny his threats to kill and breaching an Apprehended Domestic Violence Order despite his criminal convictions which were unsuccessfully appealed.
Whilst on the one hand denying his actions the father has further sought to minimise them. His case outline is concerning in its submission that:
.. Apart from those matters heard in the local Court in 2020 there is no other matter that would cause the court any great concern.
There is no allegation of physical violence between the father and the mother.
Apart from one allegation in about 2017, there is no allegation of physical assaults directed towards the children.
In discussing his conviction for breaching the apprehended domestic violence order the father stated to the court child expert that he “was the victim” in this situation. He believes that the police have given the mother “special treatment”, although it is not explained by him why. The father seeks to lay the blame for his own actions on others.
The father has had the benefit and opportunity to engage in various programs aimed at assisting him in behavioural change. The father has completed the AH program as recommended in 2020 by Suburb B Community Corrections. He was unable to provide any specific strategies to the court child expert as to how he would implement his learnings on “how to listen and understand people.”[18]
[18] Family Report, paragraph 50.
The father completed an intake session for a men’s behavioural change program; Taking Responsibility, pursuant to orders made on 8 July 2021. The father’s belief and evidence was that he was not accepted into this course as “….according to them I was not eligible because there was no family violence.” It was the father’s evidence that he told the interviewer about the final Apprehended Violence Order and his convictions for four domestic violence offences. During the intake process the father was asked questions including “Did you ever throw her to the wall, throw her on the floor, stuff like that” and he answered in the negative. The father acknowledged during his evidence that he understood that these intervention programs are trying to change the behaviour of men who have occasioned family violence and that this requires as a first step an acknowledgement of such behaviour. The father conceded that if questions as to the perpetration of family violence is asked he will deny such conduct and thus would likely not be accepted into any men’s behavioural change program.
I accept that the father will probably experience difficulties in being accepted into a men’s behavioural change program until he acknowledges his conduct; which he has not done to date.
The father has attended counselling sessions with Ms AE from AF Psychology. This is not a behavioural change program and according to the father the sessions are about his feelings: “Just what happened to me….my kids got taken off me.” In those circumstances the submissions on the father’s behalf that the father undertaking such sessions will ameliorate the unacceptable risk arising from his past behaviours are not persuasive.
Ms AE suggested to the father that he undertake an anger management course and suggested the Taking Responsibility Course for Men. The father conceded that this is a course for anger and frustration and he told Ms AE that he wanted to undertake the course recommended by his lawyer. The father was asked: “Do you think there is a reason why she would suggest an anger course if you told her you weren’t angry?” His reply was that he wanted to undertake the course before the final hearing commenced. I am not confident as to the bona fides in any event of the father wishing to undertake such a course. I do not accept that it would be as a result of the father acknowledging the cause and result of his actions and his choice to perpetrate family violence but as something he feels would assist him in obtaining the relief he seeks from the court.
The father’s inability to in any way to understand the reactions and feelings his conceded words may have on other people was highlighted during the course of his cross examination:-
MR REEVES: When you were speaking, have you ever said to the mother “I would burn the whole world for my kids?”
FATHER: Yes.
MR REEVES: You said that?
FATHER: Yes.
MR REEVES: Did you say it around the time of this story on the news [the Hannah Baxter Story]?
FATHER: No
MR REEVES: Did you say it subsequent to hearing that story?
FATHER: No. That’s something that I usually say.
MR REEVES: So you usually say, I would burn the whole world for my kids?
FATHER: Yes it just means I can sacrifice everything for my kids, that’s what I mean.
MR REEVES: What do you mean by sacrifice?
FATHER: I just translate it from Arabic to English, because this is what we say in Arabic.
MR REEVES: But you understand the word sacrifice can often refer to killing.
FATHER: Yeah, but I don’t mean that. And I just mentioned to you that I translate everything from Arabic to English
MR REEVES: So you don’t mean to sacrifice is to kill, and when you say ‘to burn the whole world’ you don’t mean to literally burn the whole world, and you don’t mean to literally burn your children and your ex-wife?
FATHER: 100 per cent. I don’t mean that.
MR REEVES: But you’re saying it at around the time of this actually happening.
FATHER: This is something that I always used to say. I can say it right now. That I sacrifice – not killing – that I can sacrifice everything for my kids - that means I put my kids first and the whole world comes after that.
MR REEVES: So you understand it that way but you can’t be sure the mother understands it that way, can you?
FATHER: English is not my first language. So when I say something and someone didn’t understand it, they need to ask what I mean. They can’t just take it they way they want. If she doesn’t understand me they should ask me
MR REEVES: So after hearing about the Baxter family – the father who burnt his children – did you stop using the words “I will burn the whole world?”
FATHER: It’s not stop. This is something that I usually say. If I knew any word besides this, I would use the other word.
…
MR REEVES: In your answer to Q151 in that transcript from May 2020, you understood that she thought that sacrifice meant to kill.
FATHER: Yes.
MR REEVES: And you said “mate it’s an expression” which you’re saying it is
FATHER: That’s right.
MR REEVES: And example “I would burn the whole world for my kids – and the mother would ask you are you going to burn me alive? Are you going to kill me?” So you understood, that she thought that, and you kept saying it.
FATHER: If the first time she didn’t understand [sic] what I mean, and I keep explaining it to her, and I said that the next time, she should know that I don’t mean what she thinks.
Again, the father blames the mother for not understanding what he asserts he actually meant by words such as “burn the world” rather than ceasing to use such terminology.
The mother further deposes that she is concerned that, like the interim orders, the father would fail to follow any orders that provide for any regular contact between the children and the father:
I verily believe that would cause more harm to the children psychologically, if [Mr Rabbani] simply decided when and how he would have contact with the children, despite court Orders, and have no regard for the Orders or the children’s best interests.[19]
[19] Mother’s Affidavit paragraph 64.
The mother’s reported concern to the court child expert that she is unsure if the father will make the commitment to spending consistent time with the children is legitimate where I have found that the father chose to not spend any form of time with the children pursuant to the interim orders. I am satisfied that there is a risk that the father will simply not avail himself again of orders for supervised time with the children, especially if such supervision were for any length of time.
The mother submits that any court ordered time between the children and the father would detrimentally impact her parenting capacity. The mother stated to the court child expert that she fears the father may kill the children because “he knows they are everything to me [and] he will get back at me” if the father is to have unsupervised time with the children.
The mother advised the court child expert that she was fearful of the repercussions from the father flowing from her informing the police of the father’s threats and behaviours. She expressed fears to the court child expert of the father and concern as to what he may be planning. Despite the existence at that time of the Apprehended Domestic Violence Order the mother described feeling anxious, concerned and at times scared in circumstances where the father lives only two suburbs away from her and they have driven past one another on a few occasions. She informed the court child expert that she will be most concerned when the Apprehended Domestic Violence Order expires. She also expressed concern for the maternal grandmother’s safety particularly as she was a party in the property proceedings. The court child expert reports:
[Ms Rabbani] stated that, if the court makes orders that [Ms Rabbani] consider unfavourable “he won’t be happy [and] we might have to go away for a few days. I’m scared, as he breached [the ADVO] once.”
The mother is unequivocal in her concern for the children’s psychological and physical safety, stating to the court child expert that she is:
Scared he will hurt them to get back at me, or he will take them and I won’t see them again.
The mother gave very clear and unchallenged evidence that despite consenting to orders that the father have supervised time, she unequivocally stated that she never wanted supervised time as she was scared the father was going to hurt them and instead proceeded on the advice of her solicitor. The mother became visibly upset when asked about her concerns regarding the father spending supervised time with the children, “I don’t trust that he can’t overpower them. I don’t trust it.” She further stated with respect to the possibility of supervised time:-
MOTHER: I’m scared of the mental side, the little things which to someone else seem like he’s taking an interest. I’m worried that with [D Contact Centre] you can do outside in a park, how do I know he doesn’t have someone there to take the kids? I have fears he will try and hurt them so I won’t have them.
MR CAIRNS: Your concern is more about the father wanting to harm you through the children?
Mother: No I’m scared he’s going to hurt them because he’s said it.
When it was suggested that the supervisor would be able to bring an end to the contact if there was found to be anything concerning, the mother said that the father will be able to say things to the children that may not appear harsh but will cause them upset: - “if he said something like ‘he likes my tik tok video’ or something like that, that affects my daughter, she thought she was going to get into trouble.” The mother further expressed concern that the father will speak negatively about her, the parties’ separation and the children’s involvement in sports which will cause them distress. The mother reports to the court child expert that the children are aware that the father does not approve of their sporting activities and X became significantly distressed upon being informed by their paternal cousin that the father saw her sporting activities in a video on social media as she believed that she would “get into trouble” from the father.
I am satisfied and find that the mother’s distress was genuine. I am satisfied and find in light of the findings I have made above that the mother would be significantly and detrimentally impacted if the children were to spend time with the father and thus her parenting capacity would be discernibly impaired, even if such time were to occur on a supervised basis.
The maternal grandmother is a significant figure in the children’s lives. In September 2020 she discovered there had been some tampering to her car and made a report to the police. She told the Police that it might be the father and that she thought that whoever it was had been planning to put a tracker on the vehicle. The maternal grandmother was very firm in her evidence that she fears the father, even in circumstances where she has had no interactions with him since May 2020.
The mother stated in cross examination that the children have not had a good relationship with the father and she thinks a reintroduction of the father to them would be very hard on them. She was not challenged on this evidence and I accept it and so find.
Weighting up the competing considerations, I am not satisfied that the children’s time with the father occurring on a supervised basis would sufficiently ameliorate the unacceptable and life threatening level of risk of harm the father poses to the children. Whilst I am not bound by the competing proposals of the parties, there is no evidence before me at all as to how, given the findings I have made above, supervised time would be in the children’s best interests.
No evidence was presented nor submissions made as to “identification contact.” I cannot make orders in an evidentiary vacuum. In circumstances where Y and X have a limited relationship with the father and Z does not have any relationship, I am satisfied that such an order would not be in their best interests.
I accept the written submissions of the Independent Children’s Lawyer as contained in the Case Outline that the father’s lack of insight into the effects of his behaviour, both towards the children and the mother, including that of not spending time with the children for a period of over three years bodes poorly for the likely benefit to the children of having a relationship with him. The possibility of serious harm arising to the children if they were to spend time with the father and the possible impairing effect that will have on the mother as the uncontested resident parent significantly outweighs any possible benefit the children may experience by re-establishing a relationship with the father.
In those circumstances it is not in the children’s best interests for any orders to be made for the parties and the children to attend family therapy and I refuse to make such an order.
Whether specific Orders need to be made in regard to the obtaining passports and whether the children should be removed from the Airport Watchlist and be permitted to travel
In circumstances where the children will not be seeing the father I am satisfied it is appropriate and in the children’s best interests to make orders that the mother have sole responsibility for the children obtaining passports and that they be permitted to travel overseas at the mother’s discretion. It is necessary in those circumstances that they be removed from the Family Law Watch List.
Whether the mother of children’s safety is at risk and what if any other protective orders should be in place to ensure the safety of the children.
Having regard to my findings as to the genuine nature of the mothers fears for both the safety of herself and the children made above, together with the very serious risk of lethality to the mother and the children the father poses in this matter, I am satisfied that it is in the children’s best interests that orders be made restraining the behaviour of the father pursuant to section 68B of the Act.
The court child expert recommends that in the event the court determines that it is not appropriate for the children to spend any time with the father that the father attend upon his general practitioner for a referral to a suitable counselling service. This recommendation was not put to the father during the course of his evidence and no orders were sought by any of the parties or the Independent Children’s Lawyer in this regard. I will thus not make an order but would recommend such a course of action to the father to assist him in dealing with the orders that the court is to make.
CONCLUSION
The father perpetrated family violence upon the mother both during the relationship and post-separation including threats to kill himself, the mother and the children. Such family violence included physical and verbal abuse. The father engaged in coercive and controlling behaviour, again both during and post-separation. I am not satisfied the father has undergone the necessary changes for him to appreciate his actions and to ensure that he does not continue to perpetrate family violence in the future.
I thus will make orders as sought by the mother and the Independent Children’s Lawyer that the children spend no time with the father.
I certify that the preceding two hundred and thirty-five (235) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 27 March 2023
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