Rasheed & Galliano (No 2)
[2024] FedCFamC2F 1236
•9 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rasheed & Galliano (No 2) [2024] FedCFamC2F 1236
File number(s): PAC 1825 of 2022 Judgment of: JUDGE BERTONE Date of judgment: 9 September 2024 Catchwords: FAMILY LAW – Parenting – serious allegations of family violence – Father charged with serious criminal offences against Mother – Father withdraws on first day of final hearing – consideration of unacceptable risk – where the three eldest children refuse to spend time and communicate with Father – where safety of children and the Mother requires a no time order Legislation: Australian Passports Act 2005, s 11
Family Law Act 1975, ss 4AB, 60CA, 60CC, 60CG, 64B, 65D, 68B, 68C, 65Y, 114Q
Cases cited: Isles & Nelissen [2022] FedCFamC1A 97
Rasheed & Galliano [2024] FedCFamC2F 992
Whisprun Pty Ltd v Dixon [2003] HCA 48
Division: Division 2 Family Law Number of paragraphs: 213 Date of last submission/s: 8 July 2024 Date of hearing: 8 July 2024 Place: Brisbane Solicitor for the Applicant: Legal Aid New South Wales For the Respondent: No appearance for or on behalf of the Respondent Counsel for the Independent Children's Lawyer: Mr Smith Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
PAC 1825 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RASHEED
Applicant
AND: MR GALLIANO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BERTONE
DATE OF ORDER:
9 SEPTEMBER 2024
THE COURT ORDERS:
1.That all previous parenting orders are hereby discharged.
2.That all outstanding Applications be dismissed.
AND THE COURT ORDERS BY CONSENT ON A FINAL BASIS:
3.That the Mother shall have sole responsibility and sole decision authority for making decisions about major long-term issues for the children W born in 2008, X born in 2010, Y born in 2014 and Z born in 2018 (‘the children’).
4.That the children shall live with the Mother.
AND THE COURT FURTHER ORDERS ON A FINAL BASIS:
5.That the children shall spend no time and have no communication with the Father.
6.That the Father and his servants shall be prohibited from removing or taking possession of the children from the Mother’s care.
7.That pursuant to section 68B of the Family Law Act 1975 (Cth) (‘the Act’), the Father shall be and is hereby restrained by injunction from:
(a)Approaching or contacting the children by any means and from requesting, encouraging or causing any third party to approach or contact the children by any means, including on his behalf;
(b)Attempting to locate the children and/or any person with whom the children lives with or requesting, encouraging or causing any third party to do so, including on his behalf;
(c)assaulting, threatening, stalking or harassing or in any other way intimidating the children or requesting, encouraging or causing any other person to do so, including on his behalf; and
(d)Attending and/or contacting any daycare, school and/or other educational facility that parents are ordinarily permitted to attend.
8.That pursuant to section 68B of the Act, upon the expiry of the Mother’s current New South Wales Apprehended Domestic Violence Order in late 2024, the Father shall be and is hereby restrained by injunction from:
(a)Approaching or contacting the Mother by any means and from requesting, encouraging or causing any third party to approach or contact the Mother by any means, including on his behalf;
(b)Attempting to locate the Mother and/or any person with whom the Mother lives with or requesting, encouraging or causing any third party to do so, including on his behalf; and
(c)Assaulting, threatening, stalking or harassing or in any other way intimidating the mother or requesting, encouraging or causing any other person to do so, including on his behalf.
9.That the Father shall be and is hereby restrained from making enquiries or otherwise attempting to locate the Mother’s residence, or from causing or permitting any third party to do so.
10.That Orders 7 to 9 are Orders for personal protection to which a power or arrest without warrant attached pursuant to provisions of section 68C of the Act.
11.That the Mother is permitted to apply for and/or renew an Australian passport for the children and the Father’s consent is not required.
12.That for the purpose of section 11(1)(b) of the Australian Passports Act 2005 (Cth) the children are permitted to have an Australian passport and travel internationally.
13.That the Mother shall be at liberty to travel with the children both within and outside of the Commonwealth of Australia and does not require the Father’s consent.
14.That the Mother shall have leave to provide a copy of these Orders to the children’s day care, school, before and/or after school care provider, other educational facility, GP, any other treating health care practitioner and/or other child-related organisation as required.
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 BERTONE
These are the reasons for judgment arising from a final hearing relating to the parenting arrangements for the children W born in 2008, X born in 2010, Y born in 2014 and Z born in 2018 (‘the children’).
The Mother commenced these proceedings on 6 April 2022 seeking a recovery order for W and Z.
Orders were made by consent on 8 April 2022 that, amongst other things, W and Z would be returned to the Mother by the Father and that the Father would have scheduled video calls with the children.
On 3 August 2022 further interim orders were made by consent for, amongst other things, the Father to spend supervised time with the children subject to the Father completing a certain course.
Subsequent interim and procedural orders were made to get the matter ready for a final hearing.
On 29 February 2024, the matter was listed for final hearing before Judge Dunkley to commence on 8 July 2024 with a time estimate of four days.
Notation D and Notation F of the 29 February 2024 orders specifically refer to the Father having to face two sets of criminal proceedings in respect of serious allegations of family violence perpetrated by the Father against the Mother.
The matter was then administratively transferred to my docket in late June 2024.
EVENTS AT THE FINAL HEARING
On Friday 5 July 2024 an email was sent to my Associate from the Solicitor for the Father stating as follows:
We advise that we are instructed that our client will be making an application for [an] adjournment of the proceedings on Monday, 8 July 2024 due to our client’s pending serious indictable criminal charges which have yet to be finalised. Our client has received advice from Counsel in his criminal proceedings and has only this week received advice from Counsel in the family law proceedings in this regard. Counsel will be seeking leave to make this application on Monday.
The Father did not file an Application in a Proceeding seeking an adjournment.
On 8 July 2024, being the first day of the final hearing, all parties appeared, with legal representation. The Father was represented by both his Solicitor and his Counsel. In fact, I confirmed with Counsel for the Father that the Solicitor instructing her at the final hearing before me, Ms Sowaid, was indubitably the same Solicitor who appeared for the Father on 29 February 2024 when the matter was listed for final hearing.
At the commencement of the hearing before me, Counsel for the Father confirmed that the parties, including the Father, had come to a consent position, on a final basis that:
(1)The mother shall have sole responsibility and sole decision authority for making decisions about major long-term issues for the children W born in 2008, X born in 2010, Y born in 2014 and Z born in 2018 (‘the children’); and
(2)The children live with the mother.
I am satisfied that those proposed consent orders are in the children’s best interests and I will make those two orders by consent.
Counsel for the Father subsequently made an oral application for an adjournment. It became apparent that Counsel for the Independent Children’s Lawyer (‘ICL’) and the Mother’s Solicitor Advocate had only been given notice of the Father’s change in application to seek an adjournment a day or two prior to the email being sent to my Chambers.
Both the Mother and the ICL opposed the Father’s application for adjournment.
During her submissions, Counsel for the Father informed me that if the Court did not grant the adjournment, the Father would seek leave to withdraw his Amended Response filed 2 November 2023 and would take no further part in the proceedings.
I gave the Father the opportunity to reconsider his position and informed him via his Counsel that if he withdrew his Response and declined to engage with the proceedings that the matter would be heard on an undefended basis against him.
I dismissed the Father’s oral application for an adjournment and provided oral reasons for doing so.[1]
[1] Rasheed & Galliano [2024] FedCFamC2F 992
Counsel for the Father informed me that she had firm instructions to withdraw the Father’s Amended Response to Final Orders and sought leave for the Father, and his legal representatives, to withdraw from the proceedings.
Leave was granted and the Father and his legal representatives withdrew and left the court room.
The Father had the opportunity to participate in these proceedings from the time he filed his Response to the Mother’s Initiating Application in 2022 until he chose to withdraw from the proceedings before me on 8 July 2024.
The Father could have continued to participate in these proceedings. However, having failed to secure the adjournment he wanted, he chose instead to take no further part in these proceedings.
I am satisfied that the Father was fully aware of the orders sought by the Mother which were set out in her Amended Application for Final Orders and also in her Case Outline.
I am also satisfied that the Father was fully aware of the position of the ICL as set out in her Case Outline at Exhibit 8.
I am satisfied that it is in the children’s best interests for these proceedings to continue, whether or not the Father wishes to participate, so that final orders can be made so as to bring the litigation to an end.
Consent Orders as Between the Mother and the Independent Children’s Lawyer
The Mother and the Independent Children’s Lawyer had a consent position as to the orders they sought, being those contained in the Independent Children’s Lawyer’s Outline of Case filed 3 July 2024 which is Exhibit 8.
Subsequent to the Father’s withdrawal from these proceedings, and given there was consent as between the Mother and the Independent Children’s Lawyer the matter proceeded without cross-examination.
The orders sought by the Mother, with the consent of the Independent Children's Lawyer, are set out in paragraphs 3 – 12 of Exhibit 8 and are that:
3. The children shall spend no time and have no communication with the father.
4.The father and his servants shall be prohibited from removing or taking possession of the children from the mother’s care.
5.Pursuant to s68B of the Family Law Act, the father shall be and is hereby restrained by injunction from:
a. Approaching or contacting the children by any means and from requesting, encouraging or causing any third party to approach or contact the children by any means, including on his behalf
b. Attempting to locate the children and/or any person with whom the children lives with or requesting, encouraging or causing any third party to do so, including on his behalf;
c. Assaulting, threatening, stalking or harassing or in any other way intimidating the children or requesting, encouraging or causing any other person to do so, including on his behalf;
d. Attending and/or contacting any daycare, school and/or other educational facility that parents are ordinarily permitted to attend.
6. Pursuant to s68B of the Family Law Act, upon the expiry of the mother’s current NSW Apprehended Domestic Violence Order [in late] 2024, the father shall be and is hereby restrained by injunction from:
a. Approaching or contacting the mother by any means and from requesting, encouraging or causing any third party to approach or contact the mother by any means, including on his behalf;
b. Attempting to locate the mother and/or any person with whom the mother lives with or requesting, encouraging or causing any third party to do so, including on his behalf;
c. Assaulting, threatening, stalking or harassing or in any other way intimidating the mother or requesting, encouraging or causing any other person to do so, including on his behalf.
7. That the father shall be and is hereby restrained from making enquiries or otherwise attempting to locate the mother’s residence, or from causing or permitting any third party to do so.
8. Orders 4 to 7 are Orders for personal protection to which a power or arrest without warrant attached pursuant to provisions of s68C of the Act.
9. The mother is permitted to apply for and/or renew an Australian passport for the children: [W] born [in] 2008; [X] born [in] 2010; [Y] born [in] 2014, [Z] born [in] 2018 and the father’s consent is not required.
10.For the purpose of s11(1)(b) of the Australian Passports Act 2005 the children are permitted to have an Australian passport and travel internationally.
11. The mother shall be at liberty to travel with the children both within and outside of the Commonwealth of Australia and does not require the father’s consent.
12.The mother shall have leave to provide a copy of these Orders to the children’s day care, school, before and/or after school care provider, other educational facility, GP, any other treating health care practitioner and/or other child-related organisation as required.
I must now decide if the orders sought by the Mother and the Independent Children’s Lawyer are in the best interests of the children.
Evidence and Findings of Fact
The Mother relied upon the following documents:
(1)The Amended Application for Final Orders filed 2 November 2023;
(2)The Affidavit of the Mother filed 20 May 2024;
(3)The Affidavit of Ms B (the Maternal Grandfather) filed 20 May 2024; and
(4)Exhibits 2, 3, 4, 5, 6, 7, 9 (the Mother’s Case Outline), 10 (the Mother’s Schedule of Factual and Legal Issues for the Court’s Determination), 11, 12, 13, 14, 15, 16, 17, 18 and 19.
The Independent Children’s Lawyer relied upon the following documents:
(1)The Family Report dated 7 August 2023; and
(2)Exhibits 8 and 20.
I have read and considered the material relied upon by the Mother and the ICL. I do not propose to traverse all of the evidence, and address every complaint advanced by the Mother, in these reasons, but rather I will address the evidence that grounds the reasons for my decision.[2]
[2] Whisprun Pty Ltd v Dixon [2003] HCA 48.
The Applicant Mother is 44 years of age and is the full-time carer of the children.
The Respondent Father is 41 years of age and is an educator.
The parents commenced a relationship in 2007 and were ‘married’ in a religious ceremony in 2007.
The parents commenced living in Suburb D in approximately 2008.
The parents’ first child, W, was born in 2008. During her pregnancy with W, the Mother was diagnosed with a medical condition.
The Mother’s evidence is that prior to the relationship she was an educator, but following the birth of W, she did not return to work in accordance with the Father’s wishes. I accept this evidence.
The parents’ second child, X, was born in 2010.
In 2012, when W was 4 and X was 2, the family moved to live in Country C.
In about mid-2013, they moved back to Australia and moved in with the Mother’s parents before moving to a home of their own.
Y was born in 2014 and Z was born in 2018.
The parents separated in September 2021 and the Mother and the children moved in with her parents, the Maternal Grandparents.
The parents were granted a religious divorce in late 2021.
I accept the Mother’s evidence that from separation in September 2021 until April 2022, the children lived primarily with her and were spending time with the Father as agreed on an unsupervised basis. She said that W and X were spending about one night per week with the Father, and that Y and Z were spending only daytime with the Father.
On 3 April 2022, the Father attended the Mother’s home, and removed W and Z without the Mother’s knowledge or consent.
The Mother then commenced these proceedings which resulted in consent orders being made on 8 April 2022 for the return of the two girls to the Mother.
Since separation, the children have been living with the Mother and have spent limited time with the Father with such time being largely on a supervised basis.
By the time of the final hearing, the children had not spent time with the Father for some lengthy period.
W is now aged 15. X is aged 13. Y is 10 and Z is 5.
I am satisfied that during the relationship, and since separation, the Mother has been the children’s primary carer.
Family Violence
The Mother deposes to significant family violence acts perpetrated by the Father against her during the marriage. These acts allegedly include sexual and physical abuse, coercive control including financial abuse and verbal abuse within the meaning of family violence in section 4AB of the Family Law Act 1975 (Cth) (‘the Act’).
The Mother’s evidence in her trial affidavit is that after X was born in 2010, the Father started to punch and slap the Mother in the face. She said he also slammed her arm in the door and pulled her hair.
The Mother’s evidence is that the Father would call her into another room away from the children. She said it started around two or three times per year but during the last two years of the relationship he was punching her about once every three months.
The Mother’s evidence is that on a few occasions she took photographs on her phone of the red welts on her face and bruises on her arms but that these photographs were deleted by the Father.
I accept the Mother’s evidence that she was physically assaulted by the Father and took photos of her injuries.
The Mother’s evidence is that the Father told her: “I deleted those photos from your [phone]”. “Without pictures no one will believe you and the police won’t help you. If you do say anything to DOCS you risk the children being taken away from you”.
I accept the Mother’s evidence that the Father deleted these photos and told her the words she ascribes to him. I find the Father’s behaviour to be coercive and controlling of the Mother.
The Mother further deposes that in 2013, while she and the Father were living in Country C with W aged 4 and X aged 2, an incident occurred whilst the family was in a large shopping mall. X was restless and hungry. When she interrupted the Father who was talking to a salesperson, he became angry with her and grabbed her baby bag which contained her phone and wallet, and then he stormed off.
This left the Mother with two small children, with no money or phone, in a foreign place where she says she did not speak the language.
The Mother describes being petrified. Upon being helped into a taxi by a police officer, the Mother and the children returned to their apartment only to find that the Father had locked them out and refused to open the door for them.
The Mother needed the help of the building manager to use the master key to gain access to the apartment.
I accept the Mother’s evidence of the incident in Country C. I find that the Father’s behaviour was coercive and controlling of the Mother.
The Father’s Family Violence and Threats Towards W
The Mother deposes to an incident in mid-2021, when the Father returned home and was stomping around the house yelling about toys not having been put away. Her evidence is that she saw the Father walk into the kitchen, grab an object and heard what sounded like the object being used to hit skin repeatedly.
The Mother ran into the loungeroom and saw that W was crouched on the floor with her arms above her head and the Father slapping her arm with the object with strong force.
The Mother said she yelled “stop”, and then observed W’s arm to be bright red and tender. The Mother said she took photos of W’s arm following this, but she claims the Father deleted them as he later said to her “You know I can delete your photos, right?”
I note that W also told Ms E, the Child Court Expert, that the Father would hit her with an object.
The Mother’s evidence is that as W got older, the Father told the Mother he was ready to “bash” W if she disobeyed him. The Mother said that on multiple occasions in 2021 the Father said “I can’t handle [W] anymore. You need to get her under control or I’m going to marry her off.” W was about 12 at the time.
I accept the Mother’s evidence of the Father’s abuse of W. I also accept the Mother’s claim that the Father deleted the photos of W’s bruised arm.
I find that the Father’s threat to the Mother to have W married off was made by him to instil fear in the Mother in an effort to control her.
The Children’s Exposure to the Father’s Family Violence
Court Child Expert, Ms E prepared a Family Report dated 7 August 2023.
When interviewing the children for the family report, Ms E reported that W (aged 14 years at the time of interviews):[3]
(1)described her Father as “rude and aggressive” towards her;
(2)said that he raises his voice and “his eyes go big”;
(3)remembers the Father confiscating the Mother’s mobile phone and locking her and the Mother in the house;
(4)said that the Father strangled the Mother and fought with her;
(5)said that she felt frightened of the Father, particularly when he came home angry;
(6)said that the Father regularly hit her with an object on her head and arm;
(7)said that the Father hit her and her siblings with the object and she did not know why they were being treated that this way; and
(8)said that the Father did not provide enough food for the family.
[3] Paragraphs 66 – 68 of the Family Report.
When interviewing X, who was 12 years old at the time, Ms E said that X:[4]
(1)said that the Father “caused fights with Mum”;
(2)said that the Father took the Mother’s keys and mobile phone and locked her and the children in the house;
(3)said that the Father threw a can of soft drink at W;
(4)said that the Father says “bad stuff about Mum, he yells and argues with [W]…”.
[4] Paragraphs 69 – 72 the Family Report.
Ms E notes that Y presented as a quiet child who, when asked to participate in an interview with Ms E, declined to be interviewed.
Ms E noted that Z also presented as a quiet child who spoke with a stutter. She was not interviewed because she did not engage with the report writer.
X and Y were present in the house when the Father assaulted their Maternal Grandfather, Mr F. I detail this incident later in these reasons.
I find that the children have been victims of, and have been exposed to, the Father’s acts of family violence.
Apprehended Domestic Violence Order
The Father pleaded guilty to assault offences arising from an assault he perpetrated against the Maternal Grandfather, Mr F, in 2022.[5]
[5] Exhibit 2.
I detail this assault on Mr F more fully later in these reasons.
After this assault, which also resulted in the Father harming the Mother, the New South Wales Police made application on behalf of the Mother for a provisional Apprehended Domestic Violence Order.
The Father consented to a final order without admissions in late 2022.[6]
[6] Exhibit 6.
Breaches of Apprehended Domestic Violence Order
The Mother alleges the Father has breached the Apprehended Domestic Violence Order. in mid-2023 the Father was charged with breaching the order. In mid-2023 the Father was charged with a second breach of the order.[7]
[7] Paragraphs 21 – 23 of the Mother’s trial Affidavit.
Both charges of breaching the Apprehended Domestic Violence Order are to be dealt with at Local Court in mid-2024.
As these charges are being dealt with in another court, I do not propose to make findings in this regard.
Criminal Charges Against the Father
In or about late 2023, the Father was charged with very serious domestic violence offences allegedly perpetrated by him against the Mother. These are articulated at Exhibit 4.
The trial date for the criminal charges has not yet been set. The Father is pleading not guilty.
I note that these are the most serious allegations the Mother makes against the Father, and in respect of which she will be required to give evidence, and be cross-examined, in another court.
Given that these charges are being dealt with in another court, I do not propose to make a finding in respect of these charges.
Assault Against the Maternal Grandfather
The Maternal Grandfather, Mr F was the victim of a serious assault upon him by the Father in early 2022.
Mr F deposes to the facts of this assault in his affidavit filed 20 May 2024. I have considered that affidavit and the annexures to that affidavit, which includes photographs of his injuries inflicted upon him by the Father.
The Father initially claimed to New South Wales Police that he was the victim of an assault by Mr F. This gave rise to assault charges against Mr F as the Respondent. In late 2023, these two assault charges against Mr F as the Respondent were withdrawn and dismissed.[8]
[8] Exhibit 3.
Mr F deposes at paragraphs 68 – 84 of his Affidavit that:
(1)The Mother and children were living with him and his wife at their home at that time;
(2)On the day in question, the Father attended the home of Mr F uninvited and did not leave when he was asked to leave;
(3)The Father struck the head of Mr F to the point that Mr F lost consciousness;
(4)When Mr F regained consciousness he was lying on the ground with the Father on his back and holding him in a headlock;
(5)The Father was trying to choke Mr F and shouted to him: “stay the fuck down”;
(6)Mr F could barely breathe and he could not move his arms at all;
(7)Upon being released by the Father, Mr F heard his wife and the Mother screaming. Whilst unsteady on his feet and bleeding from his head, Mr F picked up an object and ran back out. When the Father saw him, he ran away and said: “that’s why I like to fuck other women”;
(8)When the Mother stood next to Mr F and called the police, the Father saw her and charged at the Mother which is when Mr F swung the object which connected with the Father’s shoulder;
(9)The police attended and called an ambulance. Mr F was taken to hospital for medical attention and further scans;[9]
(10)X and Y were inside the house at the time of the incident. Y asked Mr F “why did Dad hit you?” and when Mr F asked Y how he knew that, Y said “I saw it”;
(11)He was fearful for the safety of his wife and the Mother and himself on the day; and
(12)As a result of the assault by the Father, Mr F sustained injuries and blurred vision.
[9] Pages 44 – 45.
As a result of this assault, the New South Wales Police made application on behalf of the Maternal Grandfather for an interim Apprehended Domestic Violence Order against the Father. The Father consented to a final order on a without admissions basis in late 2022.[10]
[10] Exhibit 7.
The Mother also deposes to this incident at paragraphs 16 to 19, and 68 to 74 of her trial affidavit. She corroborates the version of events of the Father’s behaviour as provided by Mr F.
In early 2023, the Father pleaded guilty to assault offences by him upon Mr F.
By his guilty plea, I accept that the Father admits the assault. Given their vast age difference at the time, Mr F was 75 and the Father was 39, I find the Father’s assault on the Maternal Grandfather particularly cowardly.
During this incident the Mother also deposes to the Father punching her to the side of her face while she tried to pull the Father off Mr F.
The Mother sustained grazing and redness to her cheek and bruises on her face and arms.
I accept the evidence of both the Mother and the Maternal Grandfather, Mr F, as to the Father’s assault on Mr F.
I am satisfied that at least two of the children, Y and X, were present during the incident and were present when the police and ambulance arrived.
I am further satisfied that all of the children became aware of the incident after the fact by virtue of seeing their Mother with bruises, and seeing their Maternal Grandfather with significant bruises and a bandaged head from a head injury caused by their Father.
Conclusion on Family Violence
I am satisfied on the evidence that:
(1)The Mother has been the victim of significant family violence perpetrated against her by the Father during the relationship which includes physical violence and coercive control;
(2)The children have been exposed to family violence perpetrated by the Father against the Mother and the Maternal Grandfather;
(3)The Father has been physically violent to the children; and
(4)The Father has been verbally abusive to the Mother and to the Maternal Grandfather in the presence or hearing of the children.
The Children’s Time with the Father Since Separation
It was not in dispute that:
(1)The parents used the G Contact Centre (the “centre”) to supervise the children’s time with the Father;
(2)The children spent time with the Father at the centre from early 2023 until one by one the children X, W and Y refused to see the Father at the centre, even though the Mother continued to take them there;
(3)Z was the only child to continue to see the Father at the centre until the last occasion in October 2023; and
(4)The centre withdrew their services to the family in November 2023 due to the non‑attendance or communication from the Father.[11]
[11] Exhibit 20.
The Mother’s evidence is that the children were having telephone calls and video calls with the Father in 2023, with the last Zoom call occurring in June 2023.
In June 2023, the children and the parents attended upon Child Court Expert Ms E for interviews for a Family Report. Only Y and Z agreed to see the Father during that process.
Video and Telephone Calls
The consent orders made 8 April 2022 also provided for the children to have video calls with the Father initially each Monday, Wednesday and Friday from 7pm to 7.30pm.
By the Orders made on 3 August 2022 the calls were to take place on each Monday and Wednesday.
I accept the Mother’s evidence that there were occasions that not all the children spoke with the Father during the video calls.
The Mother describes in her affidavit the comments the Father made to the children and the distress caused to the older children X and W.
I accept the Mother’s evidence that X was on one occasion refusing to leave the bathroom and told the Mother that he felt anxious and nervous about the calls with the Father.
I accept what X told Ms E in the Family Report that the Father behaves in a “rude” manner towards him during telephone/video calls and “he says bad stuff about Mum, he yells and argues with [W], he says Mum can’t cook, he tells us that he will bring our stuff back when we see him.”[12]
[12] At paragraph 70.
I accept the Mother’s evidence of the comments made to her by W about what the Father was saying to W during the calls. In particular, I note that on one occasion in early 2022 the Mother said that:
(1)W was visibly shaking when she spoke with the Mother after the call;
(2)The Father yelled at W and asked her what the Mother was doing in the room; and
(3)W was scared.
I accept that W told Ms E that during the video calls between her and the Father she described him as “rude and aggressive”, that he raises his voice and that his “eyes go big”.[13]
[13] At paragraph 66 of the Family Report.
I also accept that W told Ms E that the Father’s new wife, Ms H attended W’s school and “shoved a phone in my face to talk to Dad.” She said that Ms H video-recorded her at a sports carnival, which made her feel intimidated, annoyed and was an invasion of her privacy.[14]
[14] At paragraph 66 of the Family Report.
In April 2023, X and W stopped engaging in the calls with their Father. I accept the Mother’s evidence that the Father has not called the children since May 2023.
Based on the evidence, I find that the Father’s behaviour during the video and telephone calls with the children has caused X and W stress and distress.
Y and Z are much younger than W and X and seem to have been less impacted by the Father’s negative behaviour during these calls.
Supervised Contact
Further consent orders were made by the parents and the ICL on 3 August 2022 for supervised time to take place.
The notes from G Contact Centre are before me and are contained in Exhibits 14 – 17 inclusive.
From those exhibits I make the following findings in respect of the children’s time with the Father.
In respect of W:
(1)On 5 February 2023, she attended the contact and spent time with the Father (and her siblings) and during the time she is noted she was “shedding tear” and left the contact for 10 minutes;
(2)Again, on 5 March 2023 W was noted to have shed a tear and left the contact for 10 minutes;
(3)On 19 March 2023 she informed the family support worker that she did not wish to attend the contact and refused to greet the Father; and
(4)The Mother kept taking W to the contact sessions, but W refused to spend time with the Father.
In respect of X:
(1)On 5 February 2023, he attended the contact session and it is noted that “[X] was observed nerves [sic] and had his head down”. He told the supervisor and his Mother that he was not comfortable to see the Father.
(2)He went in to see his Father with his siblings and received a cuddle from his Father. The supervisor asked X if he felt better. X shook his head and said “No”. X then left the contact with the Mother while the other three children remained;
(3)On 19 February 2023, X attended the contact with the other three children and was asked by the supervisor to have a “small talk.” X said he felt sad to see the Father today;
(4)When asked by the supervisor if he had had “some bad experiences” with the Father, X said “yeah” and then left with the Mother; and
(5)The Mother kept taking X to the contact sessions but X refused to spend time with the Father.
In respect of Y:
(1)Y attended on 5 February 2023 and seemed to enjoy spending time with the Father;
(2)The notes record that he attended the contact sessions on other occasions and on 5 March 2023 he is noted as having fun and playing a game with the siblings and his Father;
(3)On 3 September 2023, Y and Z were observed to exchange hugs and kisses with the Father;
(4)On 1 October 2023, when the Mother brought all four children to the contact, Y told the supervisor he did not wish to attend. When asked why, he said “Because he doesn’t play with me”;
(5)When asked to tell the Father this, Y was holding onto his Mother and then buried his face in his Mother’s arm; and
(6)The Mother kept taking Y to the contact sessions with the other children after this date, but he refused to see the Father.
In respect of Z:
(1)The Father is noted to refer to Z with nicknames;
(2)She has attended contact on each occasion and seems to have enjoyed spending time with her Father; and
(3)That even up to the contact on 15 October 2023, Z has exchanged cuddles and kisses with her Father.
I accept that Z seemed to enjoy the time she spent with the Father.
I now turn to the consideration of the relevant legal principles.
CONSIDERATION OF LEGAL PRINCIPLES
These are parenting proceedings regulated by Part VII of the Family Law Act 1975 (Cth). A “parenting order” is defined at section 64B of the Act and the Court may make such parenting order as it considers proper.[15]
[15] Subsection 65D(1). And within the context of the objects of the legislation namely to ensure that the best interests of a child are met, including by ensuring their safety and to give effect to the 1989 Convention on the Rights of the Child and the fifty-four articles set out therein.
When making parenting orders, I am required by section 60CA of the Act to regard the child’s best interests as the paramount consideration.
Section 60CC(2) sets out the matters that I must consider in determining what is in the best interests of these children.
Section 60CC(2A) sets out that in considering the matters set out in paragraph (2)(a), the Court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
When considering what parenting order to make, section 60CG of the Act further requires me to ensure that whatever order I make does not expose a person to an unacceptable risk of family violence and is consistent with any family violence order.
The Safest Arrangement
Pursuant to subsection 60CC(2)(a), the Court must have regard to that arrangement which would promote the “safety” of a child and those who have care of the child.[16] The word “safety” is not defined in the Act.
[16] Whether or not a person has parental responsibility for the child.
In my view, safety of a child and carer means protecting that child and carer against hurt or injury or danger, whether physical or psychological, arising from historic or ongoing violent acts or behaviours.
As I have outlined earlier in these Reasons, I find that the Father has perpetrated serious family violence on the Mother, the Maternal Grandfather, Mr F, and the children.
As the Appellate Division of the Federal Circuit and Family Court of Australia said in the case of Isles and Nelissen:
The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment (Edwards v Noble (1971) 125 CLR 296 at 304), though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result (Norbis v Norbis (1986) 161 CLR 513 at 518). The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.[17]
[17] Isles & Nelissen [2022] FedCFamC1A 97 at [85].
Therefore, the assessment of risk is an evidence-based conclusion referable to the statutory framework and is not discretionary. The finding about whether an unacceptable risk to safety exists, based on known facts and circumstances, is either open on the evidence or it is not.
I must:
(1)Assess the risk of harm posed to the children of spending time with the Father;
(2)Consider if that risk can be ameliorated; and
(3)Make orders that are in the children’s best interests.
I have already made findings in respect of the family violence perpetrated by the Father.
The Mother is the undisputed sole carer of the children. In making orders, I must consider her safety, in addition to the safety of the children.
In his interview with Ms E, the Father denied the Mother’s allegations against him and criticised her for not making reports during the course of the relationship.[18] I find that the Father is victim blaming.
[18] At paragraph 70 of the Family Report.
Despite pleading guilty to offences of assaulting Mr F, it appears to me from his comments to Ms E that the Father does not take responsibility for the very serious assault of Mr F in front of at least two of the children.[19] I find that the Father is minimising his actions.
[19] At paragraph 36 of the Family Report.
The Father was obligated to complete a men’s behaviour change program as part of his punishment for the assaults against Mr F. I find that his engagement with this program was mandatory, and not as a result of any acceptance of responsibility on his part.
I do not consider the Father has gained any insight into his violence and the impact on the Mother and the children.
Ms E said in the Family Report:[20]
Exposure to coercive and controlling family violence is known to have a detrimental impact on children’s psychological wellbeing and sense of safety both during their parent’s relationship and following their separation. Children are likely to be adversely impacted by witnessing ongoing family violence perpetrated towards the protective parent.
[20] At paragraph 91.
I am satisfied that if the children were to have contact with the Father that they would be at risk of the Father perpetrating family violence against them, or against their Mother in their presence.
Given the Father’s complete lack of insight, his refusal to take responsibility for his actions and given the serious nature of the allegations made by the Mother, I am satisfied that this risk to the children is unacceptable.
Capacity of Each Parent
The capacity of a parent to ensure the safety of a child, is a further consideration under subsection 60CC(2)(d) of the Act, that requires me to consider the capacity of each parent to provide for the children’s developmental, psychological, emotional and cultural needs.
I accept the Mother’s evidence that she has been the primary carer for all four children.
I find on the Mother’s evidence that she has been responsible for, and has properly met, the children’s developmental, psychological, emotional and cultural needs.
The Mother has had the primary care of the children during a time that she was the victim of serious family violence perpetrated by the Father.
I find that the Mother has done her best to protect the children from the family violence perpetrated by the Father and will continue to act protectively.
The Mother’s continued engagement with the Father during these court proceedings, which included facilitating the children’s time with their Father, has taken a toll on her. I accept what she said to Ms E that “the constant stress is affecting my ability to care for the children.”[21]
[21] At paragraph 47 of the Family Report.
I accept what Ms E says in the family report at paragraph 96 that as the children’s primary carer, the Mother’s mental health needs to protected.
I accept the evidence of the Mother’s counsellor, Ms J, at K Centre, that the Mother has appropriately accessed help for her mental health.[22] I am satisfied that the Mother will continue to access support for herself as needed.
[22] Exhibit 19.
The Mother told Ms E that the three older children have engaged in the L Program and appear to be responding well to this support.[23]
[23] At paragraph 75 of the Family Report.
I find that the Mother is appropriately supporting the children to access the L Program and that she will continue to do so into the future.
I find that the Mother is capable of meeting the needs of all the children.
The Father has been violent not only towards the Mother and the children, but also towards the Maternal Grandfather in the presence of at least two of the children.
I find that the Father’s failure to take responsibility for his actions shows a lack of insight into the detrimental impact of his violence on the children.
Accordingly, I find that the Father does not show a capacity to place the children’s needs and his obligations to parent them safely, over and above his desire to perpetrate family violence.
Views of the Children – s60CC(2)(a)
W, who is 15, was interviewed by Ms E during which W:[24]
(1)Spoke positively about her Mother, saying she was amazing and supportive;
(2)Expressed strong and negative views of the Father and his new wife, Ms H;
(3)If she was able to, she would change everything about her Father;
(4)Said she wants to live with her Mother and does not want to have any contact with the Father; and
(5)Said she would be upset if the Judge made a decision contrary to her wishes.
[24] At paragraphs 65 – 68 of the Family Report.
I also have had the benefit of reading the supervised contact notes referred to earlier.
On 1 July 2024, the ICL met with W. The ICL said in her case outline that W expressed her view that she did not wish to spend time with her Father.[25]
[25] Exhibit 8.
X, who is 13, was also interviewed by Ms E who noted that X:[26]
(1)Described his Mother as being caring, attentive, supportive and fun;
(2)Was unable to think of any positive qualities of the Father;
(3)Said that if he had the ability, he would change “a lot” about the Father, mainly that he would not be so violent and give our stuff back;
(4)Said that he wants to live with his Mother and have no contact with his Father because seeing him “reminds me of what he has done and makes me feel anxious and angry.”; and
(5)Said that he would not feel good and likely would not comply with an arrangement contrary to his wishes.
[26] At paragraphs 69 – 72 of the Family Report.
On 1 July 2024, X expressed a similar view to the ICL that he did not wish to spend time with his Father.
Y, aged 10, declined to be interviewed by Ms E.
Y met with the ICL on 1 July 2024 and when asked about his Father, he responded “I don’t have a Father”. He told the ICL that he does not wish to spend time with his Father.
Y is only 10, but I am satisfied that he has been greatly affected by, and exposed to, the Father’s family violence.
Z is only 5. She was not formally interviewed by either Ms E or the ICL. She has not expressed any view upon which I would place any weight.
Ms E said in the Family Report:[27]
Whilst it is possible that [W]’s and [X]’s narratives may be influenced by external sources, such as [Ms Rasheed] and/or the maternal grandparents, their accounts as described in the Child Impact Report and Family Report suggests that their expressed feelings and views, likely reflect their own experiences of [Mr Galliano].
[27] At paragraph 86.
Given the ages of the older three children, their level of maturity and the details of family violence they have provided, I place significant weight on their wishes.
Developmental, Psychological, Emotional and Cultural Needs of the Children - s60CC(2)(b)
The Mother and children live in a four bedroom house. I am satisfied the children are appropriately housed.
W commenced school at M School in late 2022. The Mother’s evidence is that it is a religious school. She says that W loves attending school and is progressing well in year 10.
The Mother continues to home school X and Y, and has commenced homeschooling Z for kindergarten in 2024.
I am satisfied the children are being appropriately educated.
Y was diagnosed with mild Autism when he was 3, including sensory issues, and receives NDIS funding. The Mother has re-engaged speech therapy for Y.
I accept the Mother’s evidence that she has secured counselling for W, the first appointment being in mid-2024.
W, X and Y are also engaged in the L Program.
I am satisfied that the children’s emotional and developmental needs are being met.
I am satisfied that all of the children’s needs, including their cultural needs, are being appropriately met by the Mother.
Benefit to the Child of being able to have a Relationship with the Child’s Parents, and Other People Significant to the Child, Where it is Safe to Do So – s60CC(2)(e)
I find that the children have a positive and loving relationship with their Mother.
W, X and Y are old enough to express their views about having a relationship with their Father.
Any benefit I may consider these three older children would gain from having a relationship with their Father must be counter-balanced against their express wish not to have a relationship with him.
I accept from the observations with Ms E, and from the supervision notes, that Z enjoyed spending time with her Father and was affectionate with him.
Z seems to have escaped the brunt of the Father’s family violence, given that she was only 3 when the parents’ separated.
Z has been shielded from her Father’s abuse of her Mother and siblings and accordingly seems to have a positive relationship with her Father.
That said, I consider that whilst there is a benefit to Z to have a relationship with her Father, any benefit has to be weighed against the risks of being a victim of, or being exposed to, the Father’s family violence should I make an order that she should spend time with her Father.
Having already made a finding that the Father has committed serious acts of family violence against the Mother, her father, and the three older children, I am satisfied that the children are at unacceptable risk of harm in the Father’s care and that this risk outweighs any benefits to the children of having a relationship with him.
Can the Risk be Ameliorated?
I am required to consider what steps can be taken to ameliorate the risk to the children in the care of the Father. An obvious way to ameliorate the risk of any physical harm is for the children to spend time with their Father on a supervised basis.
Having regard to the supervision notes and the strong wishes of particularly the older three children, I consider that forcing the children to see their Father against their expressed wishes would be emotionally detrimental to the children.
Further, given that the Mother is due to give evidence against the Father in the context of his criminal charges (which are yet to be finalised) I am satisfied that the Mother would be fearful of running into the Father whilst delivering the children to the supervised contact centre.
I am satisfied that requiring the Mother to deliver the children to the Father, even to a supervised contact centre, would likely make the Mother fearful and will negatively impact her parenting capacity.
I do not consider it is in the children’s best interests for me to order contact on a supervised basis.
Telephone or Video Calls with the Father
Another option that is open to me is for the children to have telephone or video calls with their Father.
Given the ages of the children, they could initiate the calls without the Mother’s assistance.
The Mother’s evidence and the comments the children made to Ms E about the calls, leads me to conclude that the earlier period of telephone/video calls were fraught with problems and resulted in all calls ceasing in May 2023.
I have no confidence that by making a new order for telephone/video time that would be more successful than it has been in the past.
I also consider that the potential benefits of having communication with the Father, at least by telephone or electronic means, are outweighed by the express wishes of the older children that they do not wish to any contact with their Father.
I therefore do not consider that an order for the children to communicate with the Father via telephone or video calls is in their best interests.
No Contact Order
I am satisfied that it is in the children’s best interests that they should spend no time, and they should not communicate, with the Father.
Injunctions Sought
In Exhibit 8 at paragraphs 4 – 7 of the orders sought, the Mother and the ICL seek various injunctions pursuant to section 68B of the Act.
The order sought at paragraph 4 seeks to restrain the Father and his servants or agents from removing the children from the Mother’s care. I am satisfied on the evidence that this injunction is necessary and is in the children’s best interests.
The order sought at paragraph 5 seeks to restrain the Father by injunction from approaching, contacting, locating, assaulting, threatening, stalking or harassing the children in any way or requesting a third party to do so.
I am satisfied that this injunction is necessary to protect the children from harm and is in their best interests.
The order sought in paragraph 6 is an injunction for the personal protection of the Mother upon the expiry of the current New South Wales Apprehended Domestic and Family Violence order (ADVO) which is due to expire in late 2024.
I find that the Mother is a person who needs to be protected against the Father. I am satisfied that it is necessary and appropriate for this Court to make the injunction sought for the personal protection of the Mother rather than have her apply to the New South Wales local court upon the expiration of the current ADVO.
I am further satisfied that it is necessary and appropriate for there to be orders in accordance with paragraphs 7 and 8 of the orders sought.
Orders sought in paragraphs 9, 10 and 11 will enable the Mother to obtain a passport for each of the children, and to travel overseas with the children, without needing the Father’s consent.
Given the Father has failed to participate in this final hearing, and given the findings I have made about the Father’s violent behaviour towards the Mother and the children, I am satisfied that the Mother ought not to have to communicate with the Father and seek his consent for passports and travel.
I accept the Mother should be able to decide when and where the children travel for a holiday and I intend to make an order that the children are able to travel overseas for a holiday in accordance with section 65Y of the Act.
I am satisfied there ought to be an order enabling the Mother to obtain passports for each of the children, without the Father’s consent, pursuant to section 11(1)(b) of the Australian Passports Act 2005 (Cth).
Pursuant to section 114Q of the Act, I grant leave to allow the Mother to provide copy of these Orders to the children’s school, day care and medical practitioners and any other child-related organisation as required.
CONCLUSION
For the reasons I have given, I am satisfied the orders proposed by the Mother and the ICL are in the best interests of the children and I make orders accordingly.
I certify that the preceding two hundred and thirteen (213) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bertone. Associate:
Dated: 9 September 2024
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