ROSTEM & SAMMARRA
[2016] FamCA 910
•23 September 2016
FAMILY COURT OF AUSTRALIA
| ROSTEM & SAMMARRA | [2016] FamCA 910 |
| FAMILY LAW – CHILDREN – where the parents are agreed that the child should continue to live primarily with the mother – whether the child should spend time with the father – where the child is fourteen years old – where the mother lives in Brisbane and the father lives in Perth – where the child has expressed a view that he does not wish to spend time with his father. |
| Family Law Act 1975 (Cth) |
| |
| APPLICANT: | Mr Rostem |
| RESPONDENT: | Ms Sammarra |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 7973 | of | 2013 |
| DATE DELIVERED: | 23 September 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 19, 20 September 2016 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Carmody |
| SOLICITOR FOR THE RESPONDENT: | Mr Trent Waller, Waller Hallam Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr George |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Doris Chan, Legal Aid Queensland |
Orders
IT IS ODERED BY WAY OF FINAL ORDER THAT
All previous Orders are discharged.
The child, B, born … 2002, live with the mother.
The mother have sole parental responsibility for the major long term issues (as that expression is defined in the Family Law Act1975 (Cth)) for the child.
Before making a decision about any such issue, the mother shall:
(a)use her best endeavours to advise the father in writing by email of the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and
(b)allow the father fourteen (14) days after the provision by her of the information referred to above to respond to the same in writing by email; and
(c)consider the father’s response, if any, when coming to her decision about any such issue; and
(d)inform the father of the final decision she has made with respect to that issue by email within fourteen (14) days of making that decision.
The father shall spend time with the child as is reasonably requested by the child, with such time to occur in the manner agreed by the parties in writing.
Save as is provided above, the father shall not spend any time with the child.
The child is at liberty to telephone or Skype the father at all reasonable times and the mother shall assist him to any extent necessary to facilitate this communication.
Save as is provided above, the father shall not telephone the child.
The father is at liberty to send the child letters, cards and gifts at all reasonable times.
Each parent keep the other parent informed at all times of a postal address, a contact telephone number and a contact email address and notify the other of any proposed change to such details no less than seven (7) days in advance of such change.
Each party keep the other informed of the child’s doctors and health care providers and, by this Order, those practitioners are authorised to provide each parent with such information as they are lawfully able to provide about the child.
Each party inform the other parent as soon as reasonably practicable of any significant health issue or significant illness suffered by the child and, by this Order, any treating medical practitioner is hereby authorised to release the child’s medical information to both parents.
Each party keep the other informed of any school or educational facility at which the child attends and, by this Order, such providers are authorised to provide each parent with such information as they are lawfully able to provide about the child and his progress.
If there is a cost associated with the provision of any information or documents by the child’s doctors, health care providers or school or educational facility, that expense shall be borne by the parent requesting the information.
The parties shall keep one another informed of those matters required by this Order via email to an email address advised by each party to the other.
Pursuant to s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the child B, a male born … 2002, is permitted to have an Australian travel document.
Within seven (7) days of a written request to do so, the father sign all documents and do all acts necessary to facilitate any application for Australian citizenship for the child.
In the event that the father fails to comply with a request to sign and return any document necessary for the mother to apply for Australian citizenship for the child, a Registrar of the Family Court of Australia is appointed, pursuant to s 106A of the Family Law Act 1975 (Cth), to sign such document or documents in the name of the father and to do all acts and things necessary to enable the mother to apply for the child to obtain Australian citizenship.
The Registry Manager of the Family Court of Australia at Brisbane, or that person’s servant or agent, release the child’s Australian passport currently held by that person, to the mother, and thereafter, the child’s passport be held by the mother.
The child, B, a male born … 2002, be removed from the Family Law Watchlist and the Australian Federal Police are hereby requested to remove the child’s name from the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
AND IT IS FURTHER ORDERED THAT
The Independent Children’s Lawyer is discharged.
All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rostem & Sammarra has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 7973 of 2013
| Mr Rostem |
Applicant
And
| Ms Sammarra |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
These proceedings concern B (“the child),[1] who was born in 2002, and is now 14 years old.
[1] who is also sometimes known as X
His parents agree he should continue to live primarily with his mother in Brisbane.
They disagree, however, about whether he should be required to spend specified time with his father (who lives in Perth) or whether any time should occur only with his specific agreement or at his request. They also disagree about what time he should spend with his father and about how the issue of the allocation of parental responsibility should be determined: the mother seeks sole parental responsibility for the major long term issues relating to the child, while the father contends an order for equal shared parental responsibility for major long term issues should be made.
The determination of the disputes between the child’s parents occurs in the context where it is undisputed he has only spent very limited time with his father since the parental separation in 2008. As is so often the case, the parties are in dispute about the cause of this.
Irrespective of the cause, the absence of interaction between the child and his father for much of his life has an overwhelming impact on the determination of those parenting orders which are now in his best interests. This is because the absence of interactions between them has had an overwhelming impact on the state and nature of his current relationship with his father.
The difficulties in this case are clearly demonstrated by the fact that there has been no contact of any kind between the father and the child since November 2015. Despite having his father’s contact telephone number and email address, the child has not made any attempt to contact him since then.
The child’s deliberate actions in this respect seem to me to demonstrate that his resolve not to spend time with his father has remained at least as resolute now as it was when he expressed such thoughts to Ms M during his interview with her in 2014.
Overview
Both parents were born in Iran. They married there in January 2001. The child B, their only child, was born in City F. In June 2007, the father moved to live in Southeast Asian Country Y. The mother and child (then five years of age) followed in December 2007. Both parents did post-graduate study in that country.
The parties separated in 2008.
In November 2008, a Bill of Divorce issued in Iran in respect of their marriage. An order was made granting the mother custody of the child. It also provided that the father not spend time with him unless the mother agreed.
It seems that, in the period from immediately after separation until some time in about early 2009, the child spent time with his father approximately two to three times per week.
The child and his mother moved to live in alternative rented accommodation in City L in about November 2008. The mother formed a relationship with her current partner, Mr G, in about June 2010. He moved to live with her and the child in about May 2011.
The father continued to live in City L also. Despite this, it seems to be accepted that – for reasons which are contested – the child spent no time with his father between about 2009 and January 2012 when the father saw the child, his mother and Mr G standing in a cinema line. After this occurrence, the father attended at the school at which the child was attending on about two occasions. After the mother became fearful the father might remove the child from her care, she made a report to local police in February 2012 in an attempt to have the father warned against taking such action.
Between January 2012 and about March 2012, the child (then nearly 10 years of age) spent time with his father on a number of occasions. In June 2012, his father moved from City L to Perth. I accept this move was without notice to the mother - she did not know he was moving away from City L or that he was moving to live in Perth.
The father met his partner, Ms H, in about January 2013. He started to live with her and her two children from a previous relationship (now aged 16 and 18 years of age respectively) in about December 2013.
Subsequent proceedings were commenced by the father in Iran. A further parenting order was made there on an ex parte basis. The mother successfully applied to have that order overturned. The father unsuccessfully appealed this decision. He was, though, successful in other proceedings between the parents in Iran, in respect of which the mother’s subsequent appeal was unsuccessful. Thus, it is easily established that these parents have been involved in protracted litigation, in both this Court and in another forum.
In October 2012, the mother, Mr G and the child moved to live in Brisbane. I accept that at the time they moved to this city, they did not know that the father was living in Perth.
The father says he was contacted by the Child Support Agency (now within the Department of Human Services) in about July 2013. He subsequently commenced parenting proceedings in about September 2013. This followed after the father learned that his attempt to retain the benefit of a parenting order obtained in Iran was unsuccessful.
When the child spent limited time with his father and Ms H in Brisbane in November 2013, he had not seen his father at all for about 16 months. He subsequently spent limited time with them in Brisbane in December 2013, February 2014, May 2014, July 2014 and August 2014. The father was made redundant in about September 2014 and, consequently, was unable to afford to travel to Brisbane as frequently.
In addition to the time spent in Brisbane, the child has travelled to Perth on two occasions to spend time there with his father, Ms H and her two children: in January 2015, the child spent one night in his father’s care and in April 2015 he spent further limited overnight time.
The April visit did not end well. On the accounts given by all who were present[2], the changeover was attended by verbalisations by the father; the child told him to leave and made comments to the effect of “what kind of father are you?”
[2]and who are witnesses in the proceedings: namely, each of the parents and their respective partners.
In June 2015, the parties agreed to discharge those aspects of the operative interim parenting order which prescribed the child’s time with his father. It was also agreed that non-reportable therapeutic intervention was indicated. The parties engaged with Mr T, a psychologist.
Mr T met with the father alone on 20 October 2015. He met with the mother and the child on 21 October 2015. He met with the father via Skype on 22 October 2015 and with the mother alone on 23 October 2015. The father then travelled to Brisbane to participate in a joint therapeutic counselling session with the child, facilitated by Mr T, on 24 November 2015.
On the father’s account of this session, the child refused to accept presents brought for him and asked him (his father) why he had not apologised to him and his mother for his behaviour toward them. Mr G’s evidence is that, after this session, the child told him he did not want to see his father again. The child also told his mother that his time with his father should occur when he (the child) contacted him (his father) – which would be ‘never’.
As noted earlier, the child has not spent any time with his father, nor has he communicated with him, since then.
It is within this broadly summarised context that the parties’ competing proposals for the child’s time with his father are to be considered.
The proposals
The mother contends that the child should spend time with his father only at his (the child’s) specific request. Her position is that there should be no ‘forced’ contact between the child and his father.
She seeks to restrain the father from contacting the child by telephone (whether on the child’s mobile phone or a landline), to have the father do all things necessary to facilitate the child’s application for Australian citizenship and to have the child issued an Australian passport without the requirement of the father’s consent.
When the trial commenced the father contended that the child’s best interests would be served by orders which see him spend time with his father:
a)in Brisbane: during school terms, on the father giving the mother two weeks’ notice in writing of his intention to spend time with the child; and
b)in Western Australia: for a minimum of half of all school holiday periods (between specified dates) but increasing such that, from toward the end of 2017, the child spend nearly all of each school holiday period with his father in Western Australia; and
c)on special days, including Iranian New Year (18 March – 10 April), the child’s birthday, Father’s Day and the father’s birthday.
During his submissions at the conclusion of the evidence the father abandoned his proposal that the child spend time with him during the September/October 2016 school holiday period. Instead, he proposed that he and the child participate in further counselling, which he would pay for, prior to the end of Term 4, 2016, with the focus or goal to be to arrive at a situation where the child would want to spend time with him. In this context, he maintained his position in respect of the remainder of the orders for time as in his documentation filed in the Court.
The father also changed his proposal to advance that he pay for all of the child’s return flights between Perth and Brisbane, that he reimburse the mother for the costs she met in April 2015 associated with the child’s flight from Perth to Brisbane and that he not make any claim to have these costs included for the purposes of calculating his Child Support payments, if she established a positive parenting relationship and co-operated with him in relation to the child and the Court “provided” an order for shared parental responsibility and ordered the child to spend time with him as he sought.
The father also proposes that the child communicate with him by electronic means (email, phone, Skype or other means) at least once each week at his (the father’s) instigation. The father seeks to restrain the parents from changing or exposing the child to religions other than Iranian Islam. He proposes that both parents be permitted to travel internationally with the child on the condition that the non-travelling parent has provided his or her written consent to the travel (with such consent to be witnessed by a Justice of the Peace and include the details of the travel). He seeks that each parent hold one of the child’s two passports (Iranian or Australian).
Principles
I may, subject to s 61DA[3] and s 65DAB[4] and Division 6 of Part VII of the Family Law Act 1975 (Cth) (“the Act”), make such parenting order as I think proper.[5] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[6] In deciding whether to make a parenting order, I must regard the child’s best interests as the paramount consideration.[7]
[3] The presumption of equal shared parental responsibility.
[4] Parenting plans.
[5] s 65D of the Act.
[6] s 60B of the Act.
[7] Family Law Act 1975 (Cth) ss 60CA, 65AA.
The presumption that it is in the child’s best interests that his parents have equal shared parental responsibility for him must be applied unless the Court is satisfied of the matters prescribed in s 61DA(2) of the Act. If, as Counsel for the mother submitted, the Court concluded the father physically, emotionally and/or verbally abused the mother, the presumption does not apply. If, as the father submitted, the mother smashed plates during their marriage, the presumption does not apply.
Even if the presumption does apply, it may be rebutted by evidence that satisfies the Court it will not be in the child’s best interests for his parents to have equal shared parental responsibility for him.
The benefit to the child of having a meaningful relationship with both of his parents
The Act does not define the term “meaningful relationship”, nor does it prescribe criteria on which the Court should rely to assess how the child’s parents have, or should have, a meaningful involvement in his life.
In McCall & Clark,[8] the Full Court concluded that the preferred interpretation of ‘benefit to a child of a meaningful relationship’ is the prospective approach. That is, the Court should consider and weigh the evidence at trial and determine how, if it is in a child’s best interests, orders can be framed to ensure that the child has a meaningful relationship with both of that child’s parents. Thus, the Court must consider and determine whether there is a benefit to the child B in having a meaningful relationship with each of his parents, such finding not being dependent simply on a lack of danger of physical or psychological harm arising from time and/or communication with them.
[8] (2009) FLC 93-405.
If I determine that such benefit exists, then I must consider whether the benefit needs to give way to the requirement to protect the child from physical or psychological harm.[9]
[9]Vigano & Desmond (2012) FLC 93-509, [128]-[129] per Bryant CJ, Strickland & Murphy JJ.
The father submits, in essence, that the benefit to the child of the opportunity to have a meaningful relationship with him arises from the fact of paternity: that is, he submits the child will obtain the benefits associated with cultural and familial interactions if he has a meaningful relationship with both of his parents.
He further submits, in essence, that time together will permit the child to form his own relationship with him and to form his own opinion of him. Such submission arises in the context of the father’s contention that the child has been negatively influenced by exposure to his mother’s views about him (his father) and that, consequently, without the requirement of Court directed time with him, the child will not be afforded the opportunity to develop a meaningful relationship with him.
Given that neither Counsel for the mother nor the Independent Children’s Lawyer made any specific oral submissions contrary to the overarching idea that there is a benefit to the child of a meaningful relationship with his father, I have proceeded on the basis that it is accepted that there is likely to be some benefit to the child of the opportunity to have a meaningful relationship with him. I note that the mother’s evidence in this respect was clear and unequivocal and I accept it: therefore, I accept that she genuinely believes the child deserves to know his father and to have a good relationship with him.
The need to protect the child from harm from being subjected or exposed to abuse, neglect or family violence
I note that, in 2014, the father told Ms M that the child’s “general being is in danger, not only now, but for the past 5 years”[10] and that he was concerned about the mother’s ability to parent the child and meet his needs. If this was true, his inaction in the period from about 2009 until January 2012 and his decision to move from Southeast Asia to Perth in mid-2012 means that he determined to leave the child at risk and in the care of a parent who was incapable of meeting the child’s needs. I do not believe the father would have acted in such a manner as to place his child at risk. Consequently, I do not accept that the child is at risk in his mother’s care, nor do I accept any suggestion that he has ever been.
[10] Family Report, at [75]
There is, however, significant force, in my view, in the mother’s expressed concern that, if the child is required to spend time with his father contrary to his expressed views and wishes, such requirement may undermine his trust and/or confidence in her. I accept Ms M’s evidence about the potential risk to the child’s relationship with his mother (namely, that he may start to see her as someone who does not listen to him or take into account his views and feelings), particularly at this very important time in his life – his adolescence.
I accept that the mother’s concern to ensure that communication between her and the child remains open is valid and expressed in the context of the very close relationship which exists between them. I also accept that, in saying she wants to ensure that nothing occurs to undermine the child’s belief in her as a person to whom he can express his views - with the expectation that they will be reasonably listened to and, to some extent at least, acted upon - she is endeavouring to support him during this adolescent period of his life.
Given her stated experience of the father’s behaviours toward her during their marriage, the mother is also concerned that, if the child and his father continue to engage verbally, there may come a point at which the father reacts physically toward the child and, thereby, causes him – at the very least – emotional harm. Given my acceptance of the mother’s account of the father’s behaviour toward her during their relationship, there is, I think, some foundation for this concern. However, given the evidence from both the father and Ms H as to their future intentions to remain in a relationship and their hopes to marry, I consider it more likely than not, at this stage, that any time which may in the future occur between the child and his father would likely occur with her general support and presence.
The mother is also concerned that, such is the strength of the child’s current views about his father, any attempt to require him to spend time with him – particularly in Perth and for long periods of time during school holiday periods – is highly likely to further reinforce the child’s view of his father as someone who does not listen to him. I agree with this concern.
The child: his views and relationships with each of his parents[11]
[11] ss 60CC(3)(a) and (b) of the Act.
I accept that the child has a close, loving, warm and supportive relationship with his mother. I also accept that he has a close and warm relationship with his mother’s partner.
On the evidence before me – including that given by the father and his partner – the same cannot be said of his current relationship with his father. It is clearly established that he has not interacted or communicated at all with his father since the end of November 2015. I accept that, after the last session with Mr T (which occurred at that time) the child expressed his clear desire to have no further interaction with his father. He has implemented his views since then.
This resistance to interacting with his father was evident when he spoke with Ms M on 24 July 2014. He was 12 years of age at that time.
I do not accept the father’s criticisms of Ms M’s report or her interaction with the parties. I do not accept that she failed properly to appreciate the cultural issues enlivened in this case by the fact that the child and both of his parents were born in Iran and are of the Muslim faith. I am satisfied her report properly considers those matters which were, at the time she interviewed the parties and the child, particularly relevant and/or of note.
As I attempted to emphasise during the hearing, it cannot be forgotten that both of this child’s parents share the same heritage. It should also not be overlooked that each parent wants to ensure the child remains aware of this heritage.
I accept Ms M’s assessment of the child, when she spoke with him, as “quite definite in his opinions and was able to provide reasons for his comments”.[12]
[12] Family Report, at [121].
I accept his account to her of the reasoning which underpinned his decision to choose to be known by the name “X” at school (where he is enrolled with the first name of “B”). I accept he was responsible for selecting this name and that he did so because he wanted to fit in and understood that Australians (or at least those Australians not from an Iranian background) may find it difficult to say “B” properly.
I am not persuaded that the child’s choice to use the name “X” was instigated by Mr G or intended to usurp whatever role the father then thought he had in the child’s life at that time.
Given that his father has chosen to be referred to as XX (or XX), I can certainly understand why, at his age, the child may have been confused about his father’s objection to him using “X” as his first name. [13]
[13] Family Report, at [122]
I can also understand, however, why his father thought - and continues to think - that it is important for reasons of culture and identity that the child’s name not be changed formally. There is no suggestion from the mother that she intends to do this or that she has ever intended formally to change his name to “X”. I am not persuaded that, in permitting, or acquiescing in, the child’s use of the name “X” at school, the mother has done anything other than attempt to support him to feel like he “fits in”.
I accept that Ms M has accurately recounted the child’s clear description of his experience of his father having had an intermittent role in his life. Given his age, I accept as more likely than not that, when he was speaking with Ms M, he was outlining his remembered experiences rather than those of any other person. Therefore, I accept that he remembered rarely seeing his father when they lived in Country Y until, one day, the father attended at his school. From the child’s perspective, as expressed in his comments to Ms M: “it was weird. He just turned up and said hi. He’d never dropped me to school or come to my school before”, he stayed for 5-10 minutes and made a comment that he could buy the whole school”.[14]
[14] Family Report, at [126]
I also accept that the child told Ms M he believed his father had his phone number while living in Country Y - but never telephoned him. I consider the child’s attitude to his possession of his father’s contact number instructive: that is, he told Ms M that, whilst he had his father’s phone number during this period, he did not call his father because he (the child) “thought he [the father] should call me”.[15] Such attitude is, it seems to me, arguably similar to his father’s attitude to which of them – child or adult – should do the travel needed to have them spend time together.
[15] Family Report, at [127]
I accept that the child told Ms M that, when his mother told him his father was in Perth and wanted to see him, he was “shocked and then … sad. I didn’t know how it would be”.[16] He described their first encounter in 2013 as “absolutely not good. It was horrible”.[17] He said his father “instantly wanted to hug and kiss me. It was awkward”; they (his father and Ms H) wanted him to eat ice cream but he did not want to; he tried to telephone his mother, but they had taken his phone from him. He said Ms H had grabbed him, dug her fingernails in and shaken him.
[16] Family Report, at [128]
[17] Family Report, at [129]
I also accept that the child told Ms M in 2014 that the visits with his father were not getting easier. He described them as “tiring”. He also said that his time with his father could be improved if his father listened to him. He reported feeling that the father and Ms H “gang up” on him.
The child also told Ms M that his first few phone calls with his father were awkward: “he tried to drag me into Court stuff. I said I wanted to go now and he got angry and shouted. I called mum over”. He said the initial phone calls went for an hour and a half, of which he estimated half an hour was spent in the father yelling at him as he asked to end the call.[18]
[18] Family Report, at [130]
The child told Ms M he did not enjoy the phone calls – he described his father asking set questions. He said he tried to tell him what subjects he was doing but, in the end, gave up. However, he also said that the more recent phone calls had improved and that, after about five minutes, he would tell his father he wanted to go and his father accepted this.
The child told Ms M he had been frightened by a comment his father made during a phone call: they had been fighting when his father yelled: “I am your oxygen. Without me, you die”. The child outlined that he had wanted to end the phone call after this, but his father did not let him; however, when he asked his mother, she told him to end the call.
He also told Ms M that his mother had advised him not to argue with his father, as he would never win. As a result, he said he simply asked his father what he had done and sat quietly during the phone calls until the father finished talking.[19]
[19] Family Report, at [140]
The child expressed a clear wish that he did not want to see his father again unless his father “changes his ways”. He described his father as not caring about his (the child’s) feelings and saying bad things about his mother. The child described being upset by what the father said about his mother: “he says bad words about Mum. He tells me I’m rude and Mum hasn’t brought me up well”. He also reported that his father kept saying he (the child) is simply repeating what the mother has told him, but this was not true: “I can think and I have a brain”.
The child’s complaints to Ms M about the manner in which his father spoke to him about his mother find support in the father’s own comments to Ms M when he said he believed he was the parent better positioned to teach the child a good work ethic because, in essence, the mother had never worked whereas he had successfully run a business in Iran and had responsible jobs in Country Y and Perth.
The child also told Ms M that his father’s partner told him that she had to be there to ensure he respected his father. His comment resonates given that Ms H told Ms M she believed the child had not been taught respect because he challenged his father’s authority and was deliberately rude.
The child’s perspective of his father’s parenting style – as he conveyed it to Ms M in 2014 - was that “it’s like a master and a wolf. You go do this because I say”. This seems to me to be an accurate appreciation of the father’s approach to parenting. There is nothing to suggest this has changed since 2014.
Any thought that the father’s partner may soften the father’s approach to parenting evaporates when regard is had to her comments to Ms M during the observation session with the child (who she can only have met on no more than about four occasions at this time): “[The child] thinks he is king and ruler. He is a minor. He cannot change his name. We’re not blaming him”.
Nothing in the contents of Ms H’s affidavits after 2014 suggests that she has softened in her attitude about how children should relate to their parents – even if, as is the case with the child and his father, there is clearly little, if any, established relationship between them.
When Ms M asked the child whether he would like to say anything to his parents, he said he would like to tell his father: “I’m here. Pay attention to me. I thought he wanted to get to know me but now I think it’s a business thing”. He said his father lied about listening to him: “he said he’d listen to my opinions. He lied … I can’t depend on him. Mum does what she says and sticks to it. Dad doesn’t”.
He also told Ms M that his father kept bringing up issues about the dispute and the Court proceedings and continued to talk about them, despite him asking his father not to.
Ms M observed the child with his father and Ms H. These observations led her to conclude there was tension in the relationship. When she asked Ms H to discuss the child’s visits with him, the father’s partner reported that the child rebelled and misbehaved; the father discussed the child’s behaviour as hurtful toward him. The father reported that the child responded to questions in a blocking manner (i.e. answering “nothing” when asked what he did on weekends) - he believed the child had been prohibited from talking to him about information. Ms M says that, during this conversation, the child turned his head away, put his head in his hands and downcast his eyes.
Ms M described that the tension only escalated as the observation progressed. The father spoke of his distress that the child had chosen to go by a different name and that he was attending a Catholic school. When his father said he was proud of being Iranian, the child retorted that he was not and did not believe in it. His father responded by asserting that this was because he had not been provided good information and had been influenced by a person who poisoned him for her own benefit.
Such comment can only have been a reference to the mother. That it was made during the course of Family Report interviews provides corroboration for the child’s recounting to Ms M that his father makes derogatory comments about his mother to him. That the father could not see that making such critical comments to his son about his mother – the person from whom he has received almost all of his support and care – could only be likely to weaken his own relationship with the child provides further insight into the difficulties which currently attend their relationship. It also gives me little confidence that the father is capable of restraining himself from making such comments to the child or in his presence.
When the child asked his father why he did not approve of his name change, his father told him it was because it was done without his consent and did not reflect his heritage. Ms M records that, whilst the father’s partner attempted to intervene and suggested that it may not be the right time or place for the argument, the interchange continued until she (Ms M) indicated it was time to leave.
After the observation concluded, the child told Ms M, in essence, that what she had seen of his interaction with his father was consistent with what his time with him was always like.
The evidence before me clearly establishes that the conflicts and tension Ms M observed during the child’s interactions with his father and the father’s partner have not abated since her interview.
The manner in which the father decided to deal with the issue of the child taking his gifted bicycle home to Brisbane with him from Perth and the father’s behaviour at the April 2015 changeover – which I accept likely occurred as conveyed by the mother and her partner and which, on all accounts, involved the child telling his father to leave and asking him what kind of father he was – makes it clear to me that the father lacks the skills to negotiate and/or manage his limited interactions with the child.
Until he recognises this and addresses it and appreciates the importance of listening to his son, I suspect the prospect of any restoration of their currently fractured relationship is very limited.
The father and his household: the relevant s 60CC considerations[20]
[20] ss 60CC(3)(c), (f), (g) and (i) of the Act.
The father is currently employed as a manager. The father’s partner has been employed in the security industry for at least the past decade. They intend to marry in the future. Whilst Ms H’s two children from a previous relationship live with them and, consequently, the child B has met them on a limited number of occasions, the limited nature of the child’s interaction with his father means that he is likely to have no real relationship with these children.
I accept as more likely than not that, between 2009 and 2012, the father knew the mother’s address and contact details yet failed to make any attempt to contact and/or communicate with the child.
I have already outlined my acceptance that, when the father moved to Perth in 2012, he did so without telling the mother he was moving or that it was to Perth. I further accept he did so prior to the mother and child leaving Country Y. It seems very clear he simply determined, on the basis of research he had undertaken into Mr G’s past, that it was likely the mother’s partner (and, therefore, the mother and the child) may move to live in Perth.
I accept that the father has previously asserted that he would use whatever documents he obtained in these proceedings (including the proceedings commenced in the Federal Circuit Court) in a manner that he saw fit. That he made such assertion is further evidence of the antipathy between the child’s parents.
Whilst, during submissions, he said he would not commence further proceedings in Iran seeking parenting orders for the child, this statement was conditional upon the mother establishing a positive parenting relationship, co-operating with him and the Court making orders for equal shared parental responsibility and for the child to spend block time with him.
I accept that both the father and his partner hold very definite opinions about parenting and the manner in which children should interact with their parents. An example of this may be found in their joint report to Ms M that, in order to best promote the child’s relationship with both of his parents, the mother and her partner should relocate with the child to Perth. Neither appeared to have given any consideration to the impact upon the child of such a decision, nor to the fact that it is something contrary to the wishes of his mother and her partner.
I also accept that the father has manifested the ability to act so as to cause events to happen as he thinks they should - even where Orders provide otherwise. So much is established, in my view, by his behaviour surrounding the child’s travel to Perth in April 2015 when, despite the operative Order providing that he be responsible for the costs of the child’s return travel between Brisbane and Perth, he booked a return flight for May 2015 (and not April 2015), leaving the mother and her partner to pay for the return flight from Perth to Brisbane. I do not accept as credible his account that he simply made a mistake when he made the booking. Rather, as he really inadvertently accepted during his evidence – before he attempted to correct it - he deliberately decided that the mother should meet this cost because of his view about the other costs he has incurred in order to spend time with the child.
Whilst I accept that the father told Ms M in July 2014 that he believed the child had been turned against him by the mother, I consider it much more likely than not that his absence from the child’s life and his actions upon reuniting with him – even on his own account of these - are the major contributors to the present absence of a relationship between father and son.
I note Ms M’s observations that it appeared very important to the child’s father that the child grows up within the guides of his Muslim faith. That he expressed such views as strongly as I accept he is likely to have done to Ms M seems a little inconsistent with his comments to Dr V, a consultant psychiatrist, in August 2014. Whilst, during the course of that interview, he told Dr V that he was “Muslim by identity and culture” and “cannot not be Muslim” because it is unlawful to stop being Muslim, he also said he had “no religion” and “does not actually follow any religion” and regarded himself as “liberal”. He said he was “not observant of Muslim practice[s]” of fasting or diet; was “not a religious person”; had friends of many other faiths and had “no prejudice” against other religions: Ms H is Christian and her children then attended a Christian school.
The mother and her household: the relevant s 60CC considerations[21]
[21] ss 60CC(3)(c), (f), (g) and (i) of the Act.
I accept that the mother has attended the ‘Focus on Kids – Parenting after Separation’ course[22] as required by previous order.[23]
[22]Exhibit 2.
[23] made 23 October 2013.
I accept her account of the manner in which, after separation, the father ceased to make contact with the child: that is, I accept that, without any warning or notice to her, he simply stopped spending any time with the child. I also accept that he did not make any attempts to spend time with his son. I accept that she and the child continued to live in the same apartment and that she had the same phone number and email address.
I also accept her evidence to the effect that, whilst she did change the child’s school on one occasion, this was because she was unable to afford the fees. I accept that she and the child had student profiles with the Iranian Embassy as they were required to do. As such, I accept as more likely than not that, in the period from separation until the father left Country Y to move to live in Perth in about June 2012, the father would have been able to ascertain the child’s whereabouts if he had wanted to.
The father told Dr V that the mother had poisoned the child’s mind against him. I am not persuaded that it is likely she has actively done so. Rather, I accept Ms M’s evidence that, in situations of conflict, it is highly likely a child will tend to align themselves with one parent in order to limit exposure to the conflict and avoid feeling stuck in the middle. In this case, there could be little doubt of the child’s significant attachment to his mother or that his loyalty lies with her.
In addition, given the father’s absence from the child’s day to day life, I think it much more likely than not that if the mother had acted to poison him against his father, the child would have been more strident and rejecting of his father when he spoke with Ms M. Instead, he told her he wanted his father to pay attention to him and listen to him and his opinions.
I accept the mother’s rejection of the father’s assertion that she has shown any Court documents to the child. I am not persuaded that she has suggested to the child that he should be disrespectful to his father or to Ms H. Any suggestion that she has seems to me to be inconsistent with the child’s recounting to Ms M that his mother told him not to argue with his father during their telephone conversations.
Given that the mother was also born in Iran, I am confident the child will continue to be exposed to such traditions and cultural mores as his mother considers will best benefit him.
Likely effects on the child of any changes in his circumstances[24]
[24] ss 60CC(3)(d) of the Act.
I accept Ms M’s assessment of the child’s relationship with his father in 2014 as ‘damaged.’ Given the absence of any interaction or communication between them at all since late November 2015, it could hardly be thought to be anything now but broken.
It seems highly unlikely to me that the child will revisit his asserted position that his father does not listen to him if his father does not in fact listen to him about his current wish not to spend time with him.
Given this, I hold serious doubts about whether any order for time between the child and his father could, in fact, be implemented. Even if such requirement could be imposed upon the child, I consider that the likely effect on him currently of forcing him to spend time with his father - or even to communicate with him – will be a negative one. In this regard, I accept Ms M’s evidence about the possible impacts on the child’s relationship with his mother and, I suspect, Mr G, given that it is likely both of them would be required to seek to convince him to spend time with his father against his clearly and consistently expressed views and wishes and in light of his determination not to do so since November 2015.
Any residual thought that the father possesses the skills, insight and parenting approach to assist in dealing with this current impasse have been dispatched by the combination of my acceptance of Ms M’s assessment of the father in 2014 (as focussed on his own hurt and distress, lacking insight into the way his behaviour and comments impacted on the child and unable to contain himself during the time he spent with the child during interview) and an assessment of his own evidence about what has happened during his time with the child.
Family violence and family violence orders[25]
[25] ss 60CC(3)(j) and (k) of the Act.
No Protection Orders have ever been made between these parents.
Where the evidence of the mother and the father are in conflict about her allegations of his violent behaviour toward her during their marriage, I accept and prefer the evidence given by the mother. In arriving at this conclusion, I take into account that the mother made reports to Iranian authorities in 2006 about the father’s assault of her. I accept that, during the course of that reporting, she was examined by a medical practitioner who recorded that she had suffered injuries to her face.
I do not accept the father’s contention that the documents produced by the mother and relied upon by her as providing contemporaneous proof of the fact that she reported being the victim of the father’s violence in 2006 – some two years before the parties separated and some seven years before the father commenced litigation in the Federal Circuit Court of Australia - are all forgeries. I do not accept that they are anything but copies of documents submitted to Iranian authorities in 2006 and translations of the same. I am not persuaded, simply because the mother cannot now – some 10 year later – recall the name of the medical practitioner who examined her and prepared the report or the building at which she made the report or the particular office or authority to which the report was made or the order in which her complaint was made or the name of the person to whom she made her complaint, that she is lying about and fabricating these events.
In addition to accepting the mother’s evidence about the specific occasions on which the father was physically violent toward her, I also accept that he demonstrated controlling behaviours toward her during their marriage. In this respect, I note that, when the father asked her to provide examples of what she had described in her affidavit as his “controlling behaviour” toward her, the mother said that she was not allowed to talk on the telephone unless the father approved of the persons to whom she was speaking; he wanted her to speak to her sister and family in front of him; she was unable to choose her friends without his approval; when a friend or someone from University he did not know left a message, he threw her phone and smashed it and that, in essence, he followed her to the University to check up on her when she said she was meeting a female friend there.
The father did not challenge the mother’s recounting. Additionally, it was almost immediately apparent that he did not regard these actions as constituting controlling behaviours.
I accept that the father slapped the child across the face when he was about six years old in the manner described by the mother. I am not persuaded by whatever differences in accounts exist - namely, whether it was recorded that the mother said the father placed the child under a BBQ (by which she meant a BBQ which was on a table/stand) or under a table itself (without reference to a BBQ) - that she is lying about this event or fabricating it. After all, her account that the child’s face was slapped by his father remains completely consistent.
The parental relationship, interaction and communication
I accept Ms M’s assessment of the father as someone with very firm views who expresses them strongly and at length. I accept her assessment of the father’s partner as someone who holds very definite views about the “proper” approach to parenting. I also accept her assessment of the mother as a person who is quietly strong.
I note that, on Ms M’s account, the father presented as a victim of the mother’s behaviour: he reported she had obtained a divorce without consulting him, would not consider his opinion when making decisions about the child(because “she believes she is only person who can make decisions for child. She puts the father in the shadow”), disappeared many times, changed the child’s school, never let him participate in the child’s life and excluded him from involvement with the child’s education. On his case, she forged documents to use against him in these proceedings and has done everything she can to undermine his relationship with the child.
The mother has acted to ensure that the father does not know her residential address. Her proposal that he is able to communicate with the child in the future by sending cards or gifts would rely on these being sent to a post office box. Further, she continues to hold significant concerns that if the father became aware she had taken the child to Iran for a holiday (to afford him the benefit of observing his Iranian culture and heritage first-hand) the father would commence new proceedings against her in that country, seeking orders in relation to the child.
Parental responsibility
When making a parenting order, I am bound to apply a presumption that it is in the child’s best interests that his parents have equal shared parental responsibility for major long term issues relating to him unless this presumption is rendered inapplicable.[26] The presumption is rendered inapplicable if the Court is satisfied that there are reasonable grounds to believe that either of the child’s parents has engaged in abuse of him or another child or family violence.[27]
[26] s 61DA of the Act.
[27] s 61DA(2) of the Act.
Given the findings I have made about the father’s violent behaviour and controlling toward the mother, the presumption does not apply in this case and the power to make parenting orders pursuant to s 65D of the Act is ‘at large’, albeit subject always to the child’s best interests being the paramount consideration.[28]
[28] Cox & Pedrana (2013) FLC 93-537, [19]; s 60CA; s 65AA of the Act.
Even if the presumption did apply, the circumstances here are such that I am easily persuaded on the evidence that it would not be in the child’s best interests for his parents to have equal shared parental responsibility for him.[29]
[29] s 61DA(4) of the Act.
I arrive at this conclusion taking into account that, if the Court makes an order that the parties share parental responsibility for the child and the exercise of that parental responsibility involves making a decision about major long-term issues in relation to him, then such order requires the decision to be made jointly by them.[30]
[30] s 65DAC(2) of the Act.
The combination of the fact of the absence of communication between these parents, the significant differences in their approach to parenting, the lack of trust between them, the fact that they have been engaged in litigation over many years in both this Court and courts in Iran and those matters adverted to in my consideration of their relationship, interaction and communication, easily persuades me that these parents simply could not make decisions jointly.
As it is accepted that the child will continue to live with his mother and as she is the parent who has made those decisions about major long-term issues relating to him during his life, it is clearly in his best interests that an order according her sole parental responsibility is made.
The terms of other orders to be made in the child’s best interests[31]
[31]Whether the subject of specific discussion in these Reasons or not, I have considered all of those legislative provisions required to be considered so as properly to determine the issues in this case: Banks & Banks (2015) FLC 93-637.
I accept Ms M’s evidence that it was self-defeating for the father and his partner to argue with the child over what she described as “the small stuff”, especially given the extremely limited interactions they were having with him at the time. Both the father and his partner have repeatedly been seemingly more focused upon achieving what appears to be a joint goal of having the child behave toward them in what they consider a respectful manner - rather than upon working on developing and strengthening the fragile relationship which then existed. Unless they are able to modify their approach, it seems unlikely the child’s attitude toward having and developing a relationship with his father will change.
I accept that the differences in the parenting styles implemented by each of the child’s parents are themselves a challenge for their co-parenting of the child. I also accept that, even if his relationship with his father was more developed and established than it is, he would likely have to make significant adjustments in moving between their homes. Unfortunately, the consequence of his father’s absence from his life for such significant periods of time has meant, in my view, that he has no foundation upon which to rely in attempting to make any transitions to his father’s care - he simply does not have sufficient learned experience of his father and his father’s parenting of him to be willing to accept his father’s direction and attempts at guidance.
I note that, in her report, Ms M opined (in mid-2014) that the more the interaction between the child and his father continued in the manner she observed, the more likely it was that more damage would be done to the child’s relationship with his father. So much has, in my view, proven to be the case.
The child is doing very well at school. His academic results and the effort he has made in his studies are very good. I consider that care should be taken to ensure that he is supported in continuing to achieve such results. I also consider that care should be taken so as to ensure that his strong relationship with his mother is not undermined, especially given Ms M’s evidence that, during teenage years, children need the anchor of strong parental relationships to guide them in their behaviour.
In mid-2014 Ms M noted that, whilst the child had expressed a clear preference to cease contact with his father, his expressed wish needed to be assessed in the context of the impact of such cessation upon his identity and his long term need to know his heritage and family. At that time, she considered he did not have the ability to fully comprehend the long term implications of ceasing contact with his father.
This may well have been the case then.
Whilst the child has not been interviewed again by Ms M, he did participate in therapeutic intervention facilitated by Mr T. This occurred after the changeover in April 2015, the impact on the child of which I do not underestimate.
Given his resolve not to contact his father since his last session with Mr T in November 2015, it seems to me that the child’s attitude against spending time or communicating with his father has only firmed. From the comments he made after that session, I think it more likely than not that his resolve not to interact with his father will remain undiminished until his father is able to demonstrate to him some acceptance of some responsibility for the events of the changeover day in April 2015.
Given my assessment of the father’s rigidity and his clearly strongly held views about the manner in which children should interact with their parents, it seems to me to be highly unlikely that the father will take the first step toward rebuilding whatever relationship currently exists between him and the child. He clearly thinks that the vast schism can be repaired by forcing the child to spend time with him – contrary to his wishes – and that, by giving the child no choice other than to be in his care in a place geographically distant from his mother, (as well as Mr G and his friends) for a month during this end of year school holiday period, the child will come to accept that he is required to spend time with his father.
I do not share his view. I am not remotely persuaded that an order requiring the child to spend time with his father at all – let alone for a month - will repair their relationship. I am completely persuaded that I cannot even be confident that the child would comply with a request or direction from his mother to travel to Perth.
I am also completely persuaded by the father’s decision to seek the orders he does for the child’s time with him that the father has no insight whatsoever into the likely impact of such orders on the child. I consider it much more likely than not that he has approached the issue of his relationship with his son from the perspective of what he thinks their relationship should be (given their biological relationship) rather than through an acceptance of what it actually is.
I also consider it much more likely than not that, until the father is able to appreciate that he cannot make his son want to know or have a relationship with him, the child is unlikely to change in his attitude toward him.
I think it unlikely the father will be exposed to any impetus to change his approach toward his relationship with the child as a consequence of his relationship with Ms H. I think it much more likely than not that they share the same view of parenting: namely, that children are required to love and want to see their parents simply as a consequence of that biological relationship.
I also suspect the fact of their shared rigidity in relation to parenting and the manner in which they consider children should respond to parental direction explains, to a large extent, the difficulties it is accepted they have had in their interactions with the child. Unfortunately, there seems little prospect of change in their shared approach, which while not inherently flawed, is just so different to the manner in which the mother has parented the child to be the person his school reports show him to be.
I consider, therefore, that those orders which are in the child’s best interests at present are orders which permit of the possibility of future time and communication with his father but do not impose this. The possibility of email communication remains. The child knows his father’s email address. Enabling his father to know about his academic progress provides the opportunity for positive, encouraging and congratulatory communications. Who knows – a congratulatory gift to mark good academic results, sent without expectation, may, at some time, see the child’s current resolve to remain distant from his father start to thaw. Of course, any praise sent with the expressed expectation that the child contact his father (for example, in return for its receipt) would, I suspect, only strengthen his current resolve.
I am not persuaded that it is likely to be beneficial for the child to be required to engage now in further counselling with his father because, in my view, such therapeutic intervention is only likely to be successful if the father is able to demonstrate to his son that he is willing to listen – and I am not confident that this is likely.
I have given a great deal of thought to the Independent Children’s Lawyer’s proposal that the mother be required to inform the father whenever the child leaves Australia. As noted in discourse during submissions, such an order – which is commonly made - would at least allow the father to know, generally speaking, where in the world the child was at any given time.
The mother opposes such an order. She does so on the basis of her concern that, if the father knows that the child is leaving Australia, he may act to inform Iranian authorities so that, if she and the child travel to that country, orders favourable to the father about the child and his care could be obtained there.
I am not persuaded that the father’s promise to the mother (made during his submissions) that he will not instigate further proceedings in Iran about the child eliminates the risk to the child’s stable and long-standing parenting regime if he travels to Iran on notice to his father. Such promise was, after all, conditional.
As already noted, the father’s views about the proper parenting arrangements for the child are strongly held. He thinks his son should simply be required to spend significant periods of time in his care. He has previously obtained an ex parte parenting order in Iran for the child’s custody. He successfully resisted the mother’s earlier application for a suppression order, the making of which would have restrained him from disclosing to all authorities and law enforcement agencies, police, government regimes and Courts in Iran any information which revealed the identity of parties, the child, any witnesses in these proceedings, any information which revealed the child’s identity and any information about the evidence, documents and/or information produced pursuant to a subpoena issued in the course of the proceedings.
Given the child’s heritage and that members of his extended family continue to live in Iran, I think it in his best interests that he have the opportunity to travel to that country whenever his mother thinks such travel is appropriate. I am confident that, because of her concerns about the risk to her and the child and her parenting of him in Iran, the mother will not facilitate such travel if she is required to tell the child’s father about it. Therefore, I am persuaded that the only way the child will have the opportunity to travel to Iran, and be immersed in all that county has to offer him, is if his mother is not required to inform his father of intended overseas travel. For these reasons, I decline to make an order in the terms sought by the Independent Children’s Lawyer in this respect.
Whilst the mother was not opposed to it, I similarly decline to make the order sought by the Independent Children’s Lawyer that the terms of the Order made today be explained to the child in the manner envisaged by s 65L of the Act. I do so because I am not persuaded that this is necessary in the circumstances of this case and because I am not persuaded that it would assist or benefit the child to be required to attend upon a stranger for the purpose of such explanation.
Injunctive relief sought by the father
The father seeks to restrain the mother from “changing or exposing the child to any other religion other than Iranian Islam religion and beliefs”.
The father told Ms M in July 2014 that he was greatly concerned the child was attending a Catholic school. The child now attends a State high school. As noted earlier, he is clearly doing very well there.
There is no suggestion that the mother – herself of the Muslim faith – has any intention of changing either her or the child’s religion.
I am not persuaded, therefore, that there is any need for the order sought by the father or that it is in the child’s best interests or that it is appropriate for his welfare to make an order restraining the mother in the manner the father seeks and I decline to do so.
I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 23 September 2016.
Associate:
Date: 23 September 2016
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