Rahaim & Sadri
[2024] FedCFamC2F 1502
•28 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rahaim & Sadri [2024] FedCFamC2F 1502
File number(s): PAC 2375 of 2023 Judgment of: JUDGE OBRADOVIC Date of judgment: 28 October 2024 Catchwords: FAMILY LAW – PARENTING – Child has spent no time with father for six years – Lack of insight on the part of the father – Whether there is any benefit to child having a relationship with the father Legislation: Family Law Act 1975 (Cth) ss 60CC, 60CG, 61C, 61D Division: Division 2 Family Law Number of paragraphs: 122 Date of hearing: 8-11 October 2024 Place: Parramatta Counsel for the Applicant: Mr J Farah Solicitor for the Applicant: Hazim & Co Lawyers Pty Ltd Counsel for the Respondent: Mr G Hill Solicitor for the Respondent: Choice Law Group Counsel for the Independent Children's Lawyer: Mr T J Robertson Solicitor for the Independent Children's Lawyer: Hillcrest Family Lawyers Pty Ltd ORDERS
PAC 2375 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RAHAIM
Applicant
AND: MS SADRI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
28 OCTOBER 2024
THE COURT ORDERS THAT:
1.X born in 2016, shall live with the mother, Ms Sadri (‘mother’).
2.X shall spend no time with the father, Mr Rahaim.
3.The mother is restrained from denigrating the father or his family in the presence or hearing of X, or causing, permitting, or allowing any third party to do so.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are the Reasons for Judgment in respect of competing parenting applications brought by the applicant father, Mr Rahaim (‘father’), and the respondent mother, Ms Sadri (‘mother’), in respect of the child, X.
X is 8 years old. He has not seen or spent time with the father for 6 years.
By the conclusion of the hearing, orders had been made by consent for the mother to have sole decision-making for major long-term issues for X, and there was a concession that X ought to live with the mother. The outstanding issues for the Court to determine were whether X spends time with the father, and how such time ought to occur.
THE PROCEEDINGS
Procedural History
The father commenced proceedings in May 2023 by filing an Initiating Application, seeking final parenting orders for shared parental responsibility, that X live with his parents on a weekly alternating basis, and that X spend time with each parent for half school holidays and on special occasions, and that the parents communicate via a parenting application. The father also filed an Application in a Proceeding seeking interim parenting orders: for orders pursuant to s 67N(2) of the Family Law Act 1975 (Cth) for the furnishing of information in respect of the location of X and the mother from the Department of Human Services, Department of Education, and Department of Roads and Maritime Services; that the parents have equal shared decision making for major long-term issues for X; that X live with the mother; that X spend time with the father each week increasing to overnight time, and on special occasions; for the parents to enrol in parenting courses; and orders for various restraints.
On 19 June 2023, orders were made for the mother to file an address for service by 23 June 2023, for the mother to file her response and affidavit material by 17 July 2023, and for the production of documents from the Department of Communities and Justice (‘DCJ’) and the Police.
On 10 July 2023, the mother filed a Notice of Address for Service.
On 20 July 2023, the mother filed her Response to Final Orders seeking orders on a final and interim basis for the mother to have sole parental responsibility, for X to live with the mother, for X to spend no time with the father, and for an order pursuant to s 68B of the Act for the personal protection of the mother and X.
On 23 July 2023, orders were made for the preparation of a Child Impact Report, listing the matter for interim hearing, and releasing the material produced by DCJ and the Police to the parties’ legal representatives to view only.
On 14 August 2023, orders were made placing the matter in the Evatt List.
On 21 August 2023, orders were made releasing the material produced by the DCJ and the Police to the parties to view, and granting the parties’ legal representatives photocopy access.
On 8 September 2023, the Child Impact Report prepared by Ms B dated 8 September 2023 was released to the parties and their legal representatives.
On 10 October 2023, orders were made by consent withdrawing and dismissing the Application in a Proceeding filed on 12 May 2023, appointing the Independent Children’s Lawyer (‘ICL’), and for the preparation of a Family Report.
On 9 February 2024, the Family Report prepared by Ms C dated 6 February 2024 was released to the parties and ICL.
On 21 February 2024, orders were made listing the matter for compliance and readiness hearing on 25 March 2024, for the parties to file and serve any amended application or response not less than 7 days prior to the compliance and readiness hearing, a request for the Local Court file, and other orders for filing and progression of the matter.
On 1 March 2024, the Local Court file was released to the parties to view and the parties’ legal representatives and ICL to inspect and photocopy.
On 25 March 2024, orders were made at the compliance and readiness hearing listing the matter for final hearing, for the father to file and serve any Amended Application by 15 April 2024, for the mother to file and serve any Amended Response by 22 April 2024, for the parties to file and serve their trial Affidavits and any Affidavits of supporting witnesses by 8 July 2024, for Tender Bundles to be filed with the Court by 26 August 2024, for Case Outline Documents to be filed and served by 26 August 2024, and for a joint chronology and statement of issues to be filed by 28 August 2024.
On 18 April 2024, the parties approached the Court by consent for the hearing dates to be vacated and new dates allocated. On that same day, the matter was listed for a compliance hearing on 24 April 2024.
On 24 April 2024, orders were made vacating the final hearing due to the non-availability of Ms C for cross examination, and relisting the hearing to 8, 9, 10, and 11 October 2024. A notation was also made that the parties were required to comply with the Orders of 25 March 2024 for the filing of documents.
On 26 April 2024, the father filed an Amended Initiating Application seeking orders for equal shared parental responsibility, that X live with the mother, and that X spend time with the father each Saturday and communicate with the father three times each week, with such time and communication increasing every three months culminating, after a total of twelve months, in X spending overnight time with the father on alternate weekends, each Tuesday to Wednesday, half school holidays, on special occasions, and communicating each Monday and Friday. The father also sought an order for X to be added to the Airport Watchlist.
On 19 September 2024, the mother filed an Application for Divorce. That application remained outstanding as at the date of these Reasons for Judgment. Also on 19 September 2024, the mother filed her Affidavit which should have been filed by 8 July 2024.
On 1 October 2024, the father filed his Affidavit, and on 3 October 2024 an Affidavit of his sister, both of which were to filed by 8 July 2024.
On 3 October 2024, the mother and father filed their Case Outline Documents which were to be filed by 26 August 2024.
On 7 October 2024, the ICL filed their case Outline Document which was to be filed by 26 August 2024.
On 8 October 2024, the final hearing commenced with both parents being assisted by interpreters, and time was taken by the parties for discussions.
On 9 October 2024, an order was made by consent and on a final basis that the mother have sole decision-making for major long-term issues for X. Also on this day, the Court considered the parties’ applications for leave to rely on documents which were filed without leave and not in accordance with orders. Leave was refused with reasons being provided ex tempore.
At the conclusion of 11 October 2024, judgment was reserved.
Documents relied upon
The father relied on the following documents:
(a)The Amended Initiating Application lodged for filing on 26 April 2024; and
(b)The Affidavit of the father lodged for filing on 12 May 2023, for which leave was granted.
The mother relied on the following documents:
(a)The Response to Initiating Application lodged for filing on 19 July 2023; and
(b)The Affidavit of the mother lodged for filing on 19 July 2023, for which leave was granted.
By the conclusion of the hearing, the ICL supported orders for X to live with the mother, for X to spend no time with the father, and for an order that the mother not denigrate the father in the presence of X. The ICL relied on the Family Report prepared by Ms C dated 6 February 2024.
Exhibits
There was one exhibit tendered at the hearing, being a Child Support Assessment issued 26 September 2024 between Mr Rahaim and Ms D for the assessment period 4 August 2022 to 1 February 2023.
Witnesses
Each party was the sole witness in their case, and all parties cross-examined the Family Report writer Ms C.
LEGAL PRINCIPLES
These proceedings were heard and determined after the commencement of the Family Law Amendment Act 2023 (Cth). The child’s best interest remains the paramount consideration in respect of any parenting orders the Court makes, including orders for parental responsibility.
The objects of Part VII of the Family Law Act 1975 (Cth) (‘Act’) inform how the Court must exercise its discretion. Those objects are to ensure that the best interests of children are met, including by ensuring their safety and to give effect to the Convention on the Rights of the Child.[1]
[1] Family Law Act 1975 (Cth) s 60B (‘Act’).
Division 2 of Part VII of the Act deals with parental responsibility. Section 61C provides that each of the parents of a child has parental responsibility, subject to orders. Section 61D provides that a parenting order that deals with the allocation of parental responsibility may provide for joint or sole decision making in relation to all or specified major long-term issues.
Parental responsibility orders may be made in favour of a parent or some other person.[2] Even if an order provides for joint decision-making, thus requiring the parties who hold parental responsibility to consult and make a genuine effort to come to a joint decision, there is no requirement for a person, before acting on a decision, to establish that the decision has been made jointly.[3]
[2] Act s 64C.
[3] Act s 61DAA.
In determining what is in the child’s best interest, the Court must consider the matters set out in s 60CC(2) of the Act.
If the child is an Aboriginal or Torres Strait Islander child, the matters set out in s 60CC(3) of the Act, that is the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture and the likely impact any proposed parenting order will have on that right.
Section 60CC(2) of the Act specifies the non-hierarchical criteria which must be considered in all cases when arriving at a conclusion as to what is in the child’s best interests:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
In considering what arrangements would promote the safety of the child and of each person who has the care of the child, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that is current or has previously applied to a child, or a member of the child’s family.[4]
[4] Act s 60CC(2A).
Section 60CG of the Act further requires the Court to ensure that any parenting order it makes is consistent with any family violence order and that it does not expose a person to an unacceptable risk of family violence, but only to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration.
EVIDENCE
Background
The father was born in Country E in 1987 and is currently 37 years old.
The father came to Australia and became an Australian Citizen in or around 2003.
The father lives with his current wife, Ms D and Ms D’s two children from a previous relationship, G currently 11 years old, and H currently 7 years old.
Together with Ms D the father has two children, F born in 2021 currently 3 years old and J born in 2024.
The father has three other children from previous relationships:
(a)From his relationship with Ms K, L born in or around 2008 and around 16 years old; and
(b)From his relationship with Ms M, N born in around 2009 and currently around 15 years old, and O born in around 2010 and currently around 14 years old.
The father does not see either N or O, and has not seen them in years. He has a limited relationship with L, and sees him from time to time.
The father is in receipt of a carers’ payment from Centrelink, but he also runs his own business in which he is employed and works six days per week.
The mother was born in Country P in 1996 and is currently 28 years old. The mother is not currently working, and lives in a unit with X who attends Suburb Q School.
The parties met in or around 2013 in Country P whilst the father was there visiting on holiday. The parties knew of one another prior to meeting through relatives.
In 2013, the parties married in Country P, after which the father returned to Australia and the mother remained in Country P.
In or around 2016, the mother arrived in Australia after it took three years to obtain a visa.
The mother stated that, in her first week of living in Australia when visiting the paternal aunt’s house, the father shouted at her and aggressively said words such as ‘dog’ and ‘animal’ after she woke the father up. She said this was done in front of the paternal family and with no regard to her feelings.
In or about late 2016, the mother claimed that the father became upset whilst driving and struck her on the nose causing it to bleed while they were on holiday. In the same period, the mother also stated there was an incident while they were in the bedroom when the father insisted she have an abortion. The mother said that the father pushed her causing her to fall on her side onto the bed, that the father pushed her arm causing her pain, and that she cried. The mother says the father then left the room then returned with an item and raised it above his head and yelled at her, that he left the room again and returned with a piece of furniture which he raised above his head before leaving the room.
In early 2017, the parties had an argument after the father asked the mother to sign documents for Centrelink and the mother wanted them interpreted before signing. The mother stated that she called the paternal grandfather who arrived at their home, that she heard the father say to the paternal grandfather words to the effect ‘I don’t want her. Take her and the baby’, that the paternal grandfather told the father for them to stay in separate rooms, and that the father then texted her messages to the effect of ‘Get ready, I’m going to return you to [Country P].’ Following the argument the mother left the matrimonial home for a period.
In early 2017, the mother went to Suburb R Police Station, and a provisional Apprehended Domestic Violence Order (‘ADVO’) was made for her protection. The mother stayed in a hotel that night, and the Police escorted her home to collect her belongings, but her clothes were not there. The father told police he did not know where her belongings were when they called him.
Whilst staying in the hotel, the baby in utero was not moving and the mother asked the hotel manager to take her to hospital, where she stayed for four days. Whilst in hospital, temporary accommodation was organised for the mother and the mother subsequently spent just over two weeks in temporary accommodation.
While she was in the accommodation, the father’s friends and a community elder called the mother and told her the father would change. The mother said that she then returned home and agreed to tell the Local Court that her and the father were back together. This occurred in early 2017.
In 2017, X was born and underwent surgery. The father was present when X was born. X was born in Suburb R Hospital, but as he was not well he was transferred to S Hospital. The mother was moved to T Hospital to be closer to X, as she was in hospital for a period following X’s birth. X was in hospital for a number of weeks.
While she was in hospital, the Police called the mother in relation to the court hearing and that the temporary accommodation had told police that she had reconciled with the father.
X was then transferred to Suburb R Hospital and the DCJ became involved as they were concerned about the violence in the parties’ home. The mother claimed the father was paranoid she was colluding with the hospital social worker but stated that, at that time, she wanted to reconcile with the father so X would have a father. The mother said that a caseworker from the DCJ visited her at home and informed her the DCJ would take X away if she stayed with the father, that the caseworker said words to the effect ‘[X] can’t go home with his father. His father needs to do a course’, but that the father refused to do the course.
X stayed in Suburb R Hospital for about two weeks. The mother’s evidence is that the DCJ then changed their mind and said that X could go home with the mother and the father.
The father claimed that he received a call from ‘DOCs’ when X was born and was told he would not be able to take X home unless he went to the Domestic Violence Centre. The father stated that he did not go, that he contacted a solicitor who told him he did not have to go, and that the hospital eventually released X into his care. The father claimed that, when X returned home from his first surgery, a social worker begun attending their home and a conversation occurred in which concerns about the father were raised.
In late 2017, the mother did not attend the hearing for the ADVO and other charges against the father. She understood that the Police withdrew the ADVO and other charges.
On 6 November 2017, the parties separated on a final basis.
The mother stated that in the month prior to separation, the father refused to provide her any money to purchase necessities, and that on or after the date of separation she attended Suburb Q Police Station and provided them with a detailed account of the incidents leading up to separation.
Between November 2017 and August 2018, X spent time with the father on three occasions: once in Suburb R shopping centre for thirty minutes supervised by the mother; once in the paternal aunt’s home; and once at Suburb Q shopping centre for thirty minutes supervised by the mother.
In or around mid-2018, the mother stated that she was at the Eid festival at Suburb R with X and the paternal aunt and her husband when the father walked up to them and picked up X without talking to her and held him for about five minutes. Later that night, when she was at the paternal aunt’s home, the mother claimed the father approached her and said words to the effect of ‘Anyone who prevents me from seeing my son I break their head.’ The mother also claimed that, following this, the assault she described as occurring in mid-2018 (see below) ensued ‘later on’.
In or around mid-2018, the mother stated that the father assaulted her, that during the altercation the father knocked over the bassinet in which X was sleeping, and that the paternal aunt was present during the incident. The mother claimed that she initially told police no one was present, but that she provided police a statement in late 2018 advising them that the paternal aunt was present.
The father denied verbally abusing or hitting the mother. In his oral evidence the father said ‘She hit me. I pushed her. No-one ever been bashed…’. When it was put to the father that he had leant over her and had assaulted her, he replied with a question of his own, namely if ‘I assaulted her, why scratches there? She wearing scarf. I just want to know where scratches came from.’
The father describes the incident differently. The father claimed that the last time he saw X was in about mid-2018 at the Eid festival when he bumped into the mother and X. He stated that he asked the mother if he could hold X, that he hugged and kissed X, and that when the paternal aunt suggested taking a photo the mother took X out of his hands and said words to the effect of not wanting a photo on social media. Later that day, the father claimed that he went to the paternal aunt’s home where the mother was, that he and the mother had a verbal argument after he asked the mother why she snatched his son out of his hands, that the mother came towards him and assaulted him and then continued to attack him until he pushed her off and he left. The father said that the mother called police to the paternal aunt’s home, and that the paternal aunt told him that the mother had hidden evidence of her assaulting him. The father said that an ADVO was made for the protection of the mother and other related charges.
In early 2019, a final ADVO was made against the father for the protection of the mother for a period of twelve months. The father was acquitted of the criminal charges.
In early 2022, the mother saw the paternal aunt in Suburb Q, the paternal aunt apologised for not supporting the mother and told her that she was not speaking to the father. The mother and the paternal aunt then reconciled. Following this, the mother allowed the paternal aunt and the paternal grandfather to spend time with X. The mother stated that she and the paternal aunt would visit one another regularly, and that she was happy to facilitate the paternal grandfather spending time with X when the paternal aunt asked her. The father stated that his family was able to spend time with X in about July 2022, and that the paternal aunt and the paternal grandfather spent time with X from about July to September 2022. The father’s oral evidence is that he had asked both his sister and his father to obtain the mother’s agreement for X to spend time with him.
Soon after X started spending time with the paternal family, it was stopped.
In or around June 2022, the mother said that the paternal aunt said to her words to the effect of ‘return to [the father]’ and that she started to tell the mother ‘[the father] is going to start court’, and the mother said she stopped talking to the paternal aunt following this.
The father claimed that in about September 2022 the paternal grandfather said words to him to the effect of ‘I was saying to [the mother] that you are [X]’s dad and you should be able to have a relationship with him. [The mother] said that if I am going to be like this, you can take this to Court and try to settle it there. I told her why do we have to go to Court, let us try to settle it between us however she was very adamant and stopped your sister and my time with [X].’ The father said that the paternal aunt told him that this was very upsetting.
X has not spent any time with members of the extended family since.
FAMILY REPORT
The Family Report dated 6 February 2024 was prepared by Ms C.
In her report, Ms C noted that X lived with the mother and that there was no parenting arrangement in place for X to spend time with the father. Ms C recorded that the father stated this arose due to the mother avoiding mediation and his fear of the mother pursuing an ADVO against him, whilst the mother explained the situation as reflecting the father’s lack of care. Ms C also noted that the father received information from the paternal grandfather and aunt who had infrequent contact with the mother, that X had not spent time or seen the paternal family since early 2023, and that the last time X spent time with the father was when X was aged 6 months.
Ms C set out a short background for each of the parents. For the father, she noted his children from past relationships, and that the father reported as having ‘infrequent contact with [L] but has not spent time with [N] or [O] since they were toddlers.’ Ms C noted the father’s current relationship, that his partner’s children live with them, and that they have a child F together, and that he explained to her that he was engaged as a full-time carer for his elderly mother-in-law who lived local to their home.
In respect of the mother, Ms C noted that the mother reported that she experienced discrimination in Country P which led to her considering the father’s proposal in 2013, and that the mother has a limited family network in Australia. The mother also told Ms C that her mother and ex-father-in-law were related and that their relationship had experienced a breakdown following her and the father’s separation, and that the mother does not attend family gatherings.
Ms C also provided a summary of the parenting dispute noting, inter alia, that both parties reported facing difficulties in their relationship from the outset. The father explaining that the mother had started to ‘change’ from the woman she was in Country P, whilst the mother reported experiencing emotional abuse, threats, and physical abuse.
In her report, Ms C set out the proposals of each of the parties with a key difference to those sought at hearing being that the father at the time sought an eventual equal living arrangement. Ms C identified the issues in dispute as parental responsibility, and the most appropriate arrangement for X to live and spend time with each of his parents. Ms C also identified the following as issues during her assessment:
(a)Whether X is at risk of harm in the father’s care due to family violence allegations;
(b)Whether the mother is able to facilitate any time arrangement for X; and
(c)The impact on X of not having a relationship with the father.
Ms C described the father as maintaining a polite demeanour and, when asked questions focused on X, the father focused on his commitment to repairing his bond with his son. However, he appeared dismissive of the account of family violence and repeatedly explained there was ‘no issue’ before proceeding to identify incidents of violence. Ms C noted the father disputed the mother’s allegations of family violence, reported that the mother’s false allegations were a plot planned by the mother and maternal grandmother to extort money, and that he was critical of the mother throughout the interview. Ms C observed that the father acknowledged the breakdown in his relationship with X and did not identify any further attempts at reconnecting other than mediation. The father expressed concerns about the mother’s willingness to support X’s relationship with him, and he reflected on his absent relationship with his older children, expressing the hope of developing a relationship with X as he is still quite young.
Ms C reported the mother presented as reflective, that she provided detailed responses reminiscent of a narrative which may have been influenced by her cultural background or in response to family violence experiences, and that the mother displayed heightened emotional responses at time. The mother emphasised to Ms C X’s need for stability and safety, her mistrust of the father’s intention to re-enter X’s life, and her view that the father is only interested in re-entering her and X’s life to continue to control and ‘shame’ her.
Identification of risk
In her report Ms C considered the risk of family violence and the differing account of family violence raised by the parents, setting out the various allegations of family violence described by each of the parties. She noted that the father denied there were patterns of family violence or existence of power dynamics, but that he acknowledged the relationship did involve arguments. The father attributed their arguments to adjusting to living together, the influence of the maternal grandmother, and that arguments usually occurred due to the mother’s expectations and requests for funds beyond his means which he reported were often swayed after the mother communicated with the maternal grandmother. The father added that it was the mother’s behaviour which caused him to experience fear in pursuing a relationship with X. Ms C further noted police records which, in addition to events described by the parents, recorded prior events identifying the father as a ‘person of interest’ in incidents involving ‘assault’ and ‘Apprehended Violence Orders’ dating back to prior 2013.
In respect of the mother, Ms C observed that the mother reported the father as being psychologically, emotionally, and physically abusive towards her, and provided specific examples. Also, that the mother felt unsupported, that over time her hope in their shared family support to accomplish the change she desired faded, and that she found and secured safety for herself with the assistance of services.
In respect of the child’s safety and wellbeing, Ms C noted the father’s concerns for X’s psychological well-being after hearing from others that X refers to other males as ‘Dad’ and, if this was the case, that X may develop identity issues as the mother had not fostered X’s relationship with him or the paternal family. The mother expressed to Ms C concern that the father would continue to be abusive, expose X to a negative narrative of the mother which would detrimentally impact her relationship with her son, and that, if the Court was to order time, that the father would not demonstrate commitment to spending time with X. The mother recounted to Ms C her experiences of the father not prioritising his older children. Ms C also took note of the DCJ records which assessed X as safe and risk as moderate, but that the DCJ assessment also detailed concern that the father chose physical violence in previous relationships.
There were no risks identified in respect of drugs and alcohol or mental health.
Parental understanding of the child’s needs
In respect of the father, Ms C observed that the father emphasised the importance of him re-establishing a relationship with X before it was ‘too late’, expressed his vision of a parent, and his hypothesis that if he does not establish a connection soon, he may lose his opportunity. The father advised that he had initiated the Court application as a proactive step to ‘fight’ for his son. The father appeared to explain the importance of a parent’s presence during a child’s formative years, and gave the example of his son L who, when the father attempted to intervene in behaviours he viewed ‘harmful’, rejected the father’s assistance and told the father that he was not there when he was younger. The father stressed to Ms C that he did not want to make the same mistake with X. Ms C noted that:
[The father’s] experience of the rejection from [L] appears to be the primary motivation for him now wanting to reconnect with [X]. In relation to the family violence concerns, [the father] maintained the position that "there were no problems" between himself and [the mother], despite him having voiced his own reported concerns. If [the father] maintains this position of “no problem” having occurred, then this stance may be harmful as it avoids accountability or recognition of behaviours leading to the separation, which may be indicative of a limited parental insight. If reunification were the occur between [X] and [the father], the process would require emotional sensitivity and reflective capacity by [the father]. If [the father] is unable to reflect on reported harmful behaviours in his relationship, hold accountability and work towards addressing those behaviours, then it may pose as a difficulty for [the father] to focus on [X]’s feelings and responses in any process of reunification.
Regarding the mother, Ms C took the view that the mother acknowledged the difficulties of being a single mother with limited family support and language barriers, and that she highlighted the need for X to feel psychologically and physically safe. Ms C viewed the mother’s actions as protective behaviours, and that the mother clarified her position of ‘no time’ as having arisen due to the father’s lack of initiative, and her concern that a disruptive and irregular relationship with the father, as he has with his other children, may be more harmful than helpful for X. The mother also explained to Ms C that she has developed a community network over time and expressed a willingness to support X’s request to meet the father when older.
Child and relationships
In her report, Ms C described X as polite and at different times both confident and withdrawn, noting that X’s disengagement only appeared to occur when asked questions about his father. X expressed deep affection for his mother, and explained he did not like his father stating, ‘he hit my Mum’, that no one had told him to say this, but he had ‘practised a lot in saying that’. X shared that he feels his father ‘does not care about me’ and that his feelings when discussing his father were comparable to attending the dentist. During cross-examination, Ms C stated that X’s responses were ‘pretty age appropriate’, and that she had a sense that X had internalised the father not spending time with him when he said that his father ‘does not care about me’ and that, generally, children who do this may experience a strong sense of rejection, low self‑esteem, and a sense of vulnerability resulting in being more easily peer-pressured and engaging in anti-social behaviours in the hope of being accepted into bigger social groups.
Prior to recounting her observations between the mother and X, Ms C noted that observations did not occur between X and the father as it would likely cause significant distress to X due to the absence of a relationship and X’s presentation during his interview.
Evaluation
In the evaluation, in respect of X indicating he had practiced for the interview, Ms C noted that this could have been influenced by the recent Child Impact Report interviews, however she did not discount the possibility that X might have felt influenced by his mother in terms of what to say. In both the Child Impact Report and the Family Report interviews, X maintained his position of not wanting to spend time with the father due to his awareness of family violence. Ms C opined that, while the accounts provided to X may have been factual, it may not have been appropriate for his age, causing undue worry and have a burdensome impact on his development. Furthermore, Ms C noted that X’s awareness of family violence may have influenced his position, and that he is likely aware of his mother’s feelings and, understandably, his affinity is with the mother. During cross-examination, when asked whether there were negative outcomes associated with a situation where a child harbours resentment towards a parent, Ms C said there could be and also that it depended on the child; whether the resentment was valid in that, if X takes a protective stance for his mother then he might be justified in that resentment, because he sees himself as protecting his mother by resisting and not wanting to have a relationship with the father.
In respect of the father’s views of the mother and of the family violence, Ms C observed that the father’s account was inconsistent and varied his position of his relationship as experiencing ‘no problems’ to providing an account of the mother’s alleged family violence. Ms C stated that:
[The father] did not appear to consider that the status of his relationship with [X] may be reflective of the relationship he holds with his older children, which may reflect a pattern of behaviour by [the father], rather than concerns specific to the relationship between himself and [the mother]. Further to this, [the father] did not appear to identify or reflect on any actions on his own part that may have caused him to have fragmented and broken relationship with his children.
[…]
Moreover, if [the mother’s] account of family violence is accurate and [the father] fails to acknowledge his use of violence or demonstrate insight into how his actions may have negatively affected [X] and [the mother], then this would raise serious concerns in relation to the suitability of his proposal.
Ms C also expressed concern for the father’s apparent disregard for family violence concerns when discussing DCJ involvement, and that his positing of starting afresh, was possibly problematic as it does not provide the father the opportunity to reflect on his past actions. When it was put to Ms C in cross-examination that the father had re-partnered, lives with at least three children, and had not been the subject of any family violence allegations in the last six years, she stated that this would alleviate some but not all of her concerns for the father as a family violence risk. Similarly, when asked if the father completing a parenting course would alleviate the risks, Ms C stated that this would alleviate some but not all of her concerns.
When considering the experiences of the mother, if accurately reported, Ms C stated that the father’s choice of violence would have impacted X in his prenatal development and infancy as stress factors experienced by the mother may also be experienced by the foetus. Furthermore, the mother’s account of being assaulted raised serious concerns aligning with high level violence associated with higher lethality rates in the context of family violence. In light of this, Ms C questioned whether the mother would be able to safely co-parent with the father. Lastly, in respect of the father’s allegation of the mother threatening to harm herself, if accurately reported, Ms C noted that it raised concerns for the mother’s mental health but, as a singular incident, was more likely to align with the mother experiencing mental health distress than issues. Ms C stated generally that:
As a response to coercive and controlling family violence, a non-violent parent can at times emotionally escalate, develop mental health issues and/or other harmful coping mechanisms as part of their attempt to resist the power dynamic and family violence. In these incidences, the choices a parent makes is not necessarily a reflection of their parenting capacity but, rather, a reflection of their attempts to resist their experience of domestic and family violence.
Concerning the father’s proposal for equal time, Ms C said that the arrangement appeared to be motivated by his self-reflection on the impact of the absence of a relationship with his other children and, whilst positive that the father sought graduated time, the proposal did not centre on X as it did not take into account his experiences to date and, even if it did progress as proposed, would cause X significant disruption and distress. Given the family violence concerns and lack of communication between the parents, Ms C viewed that such an arrangement was not in X’s best interests. During cross-examination, Ms C was made aware of the father’s proposal for the paternal aunt to initially supervise X spending time with the father. In reply to questions, Ms C said that such supervision would not support protecting X from physical or emotional harm at all as X would be trying to establish two connections at the same time which would be very overwhelming for him, though professional supervision services would be a different issue.
In respect of the mother’s proposal, Ms C took the view that it was in X’s best interest as it safeguards X and the mother’s psychological and emotional safety. While noting that no time may give rise to X having questions about identity as he grows older, Ms C suggested some benefit to X of receiving letters or gifts for special milestones as such an option may provide an opportunity to seek out the father when he is older if he so chooses.
Recommendations
Based on the information, and unless the evidentiary material should otherwise indicate, Ms C made the following recommendations in her report:
(a)That the mother have sole parental responsibility for X;
(b)That X live with the mother; and
(c)That X spend no time with the father.
In circumstances where the situation with X and the parents had not changed since the report, Ms C was not moved from her recommendations in cross-examination. However, during cross‑examination, Ms C was asked if the re-introduction of X and the father was to occur in a safe environment, supervised, and with a supervisor X has had a previous relationship with, whether that would ameliorate any risks of re-introduction, Ms C agreed but stated only some of the risk. When asked whether the father has the insight to engage with X on an appropriate level if they were to be reintroduced, Ms C stated that with genuine service engagement, and working therapeutically to understand what X needs and what X’s concerns are, that the father could be supported to respond to X. Ms C said that the services required for the father to engage with X would be: the father working therapeutically in an individual therapeutic setting with a psychologist would be the first step; the next step would be talking to X and gauging his readiness and engaging him with therapeutic support around re-establishing relationships; and the third step would be for the mother to have therapeutic support and a level of assurance and accountability from the father that he has caused harm towards her and X and assurance that such harm would not happen again which may include an apology by the father.
When asked about any benefit to identity time, with the knowledge that the mother had not told X that his father loves him and that the mother does not think the father loves X, Ms C opinioned that, if this was the ongoing discourse, identity time would cause more distress to X.
Further, Ms C agreed to a degree that the father not engaging with a psychologist showed a lack of insight that he has a problem. Ms C would have expected, if the father was making a genuine attempt to improve his parenting capacity, that he would have a level of accountability in relation to why there was such a large number of years where there was no contact, have completed some parenting courses in conjunction to proceedings, and identification and personal reflections as to why the situation is as it stands. In the circumstance that the father had not demonstrated reflection on his past answers, Ms C agreed that this would be indicative of the father not being suitable for reintroduction for X.
DETERMINATION
The best interests’ considerations below are to be read and understood together with the Court’s findings made earlier, and the evidence overall. Significant weight is afforded to the opinions expressed by Ms C.
Best Interest Considerations
Section 60CC(2)(a): What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child
The mother makes very serious allegations of family violence against the father. The father denies the allegations, except that he has admitted to pushing the mother, albeit he says in retaliation.
In early 2019, a final ADVO for the protection of the mother against the father was made, for a period of twelve months. That order has expired.
X has not spent any time with the father for six years. For all intents and purposes, the father is a complete stranger to him. The father has no insight into what it would mean for X to be reintroduced to him, particularly in circumstances where the child believes that the father does not care for him, and where he has said that he does not like the father.
Section 60CC(2)(b): Any views expressed by the child
X expressed a deep affection for the mother.
X expressed that he would not like to see or live with the father. X expressed to the Family Report writer that the father ‘hit my mum’.
X was observed to disengage from the interview with the Family Report writer when he was asked about the father.
Section 60CC(2)(c): Developmental, psychological, emotional and cultural needs of the child
X is 8 years old. He is doing reasonably well at school, and by all accounts he appears to be a happy, healthy, and well-adjusted little boy.
X is now at a stage of development where he will begin questioning his place in the world. He is in the early stages of middle childhood development, associated with a deeper understanding of ‘self’ and his own emotions.
Section 60CC(2)(d): Capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
The mother has a demonstrated capacity to provide for X’s needs. She has been his sole carer for the past six years.
The father has had no involvement in X’s life for six years. He has no demonstrated capacity to meet the child’s needs. While he says that he has parental capacity because he cares for the children in his household (his two little daughters and his two stepchildren), he has a fractured relationship with his three older children and no relationship with X.
The father has not demonstrated the skills which will be required to deal with X’s opposition to him.
Section 60CC(2)(e): Benefit to the child of being able to have a relationship with child’s parents, and other persons who are significant to the child, where it is safe to do so
While it may be beneficial for X to know the extended paternal family, who are also his extended maternal family, there is no evidence of any established relationships with such relatives. The mother certainly does not appear to have been supported by them, despite the fact that she has very limited extended family in Australia.
Section 60CC(2)(f): Anything else that is relevant to the particular circumstances of the child
The father has not demonstrated any insight into the effect on X of his limited relationship with the father, he has demonstrated no accountability for the loss of that relationship, and he has demonstrated no assurance that X will be emotionally safe in his care.
Despite proceedings being on foot for over eighteen months, the matters raised in the Child Impact Report and the Family Report, the father has not demonstrated that he has taken any steps to address the matters which were raised in those two reports.
CONCLUSION
Living and Spend Time with Arrangements for the Child
X will continue to live with the mother. Such an order will provide him with security and stability, and will ensure that he continues to thrive.
The father has not demonstrated on the evidence that it is in X’s best interest that he spend any time with him.
While of a significantly draconian nature, an order that X spend no time with the father will further ensure security and stability for X, and it will also provide the mother with security and stability and ensure her continued capacity to meet X’s needs. It is an order that is in X’s best interest.
The balance of the orders the Court makes are self-explanatory noting the issues raised in these proceedings.
The Court so orders.
I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 28 October 2024
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