Samaras and Rasul

[2020] FamCA 242

FAMILY COURT OF AUSTRALIA

SAMARAS & RASUL [2020] FamCA 242

FAMILY LAW – PARENTING – With whom the child shall spend time – Where the parties agree the child should continue to live with the mother – Where there are allegations of family violence perpetrated by the father towards the mother and the child – Where the mother seeks sole parental responsibility and the father proposes equal shared parental responsibility – Where the presumption of equal shared parental responsibility is rebutted – Where there is a risk of significant harm to the child in the care of the father – Where this risk outweighs the benefit to the child of having a meaningful relationship with the father – Where the father has not fulfilled his obligation to maintain the child – Where there remains concern that the mother will again not follow orders as she has done in the past – Where the mother has been overborne by the persistence of the father – Where, as a result, these orders and reasons are provided to the Department of Communities and Justice to promote the safety of the child – Ordered the mother have sole parental responsibility, the child to live with the mother and spend no time with the father.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 68B

APPLICANT: Ms Samaras

RESPONDENT: Mr Rasul

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 726 of 2017

DATE DELIVERED: 17 April 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 17 and 18 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Guyder

SOLICITOR FOR THE APPLICANT: Gianacas Argiris McDonald

COUNSEL FOR THE RESPONDENT: Mr Flanagan

SOLICITOR FOR THE RESPONDENT: Grant & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Sundstrom

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. That all prior orders in relation to B born … 2013 (“the child”) are hereby discharged.

Residence

1. The child shall live with the mother.

Parental Responsibility

1. That the mother shall have sole parental responsibility for the day to day care and supervision of the child and the long term decisions for the welfare of the child.

Time and Communication

1. That the child spend no time and have no communication with the father.

Provision of Documents

1. That the mother has leave to provide to her treating psychologist, Ms T, a copy of the following documents to assist in therapeutic work with the mother:

   (a)       These orders and reasons for judgment;

   (b)       The Family Report of Dr U dated 12 March 2018;

   (c)       The orders and reasons for judgment of 27 July 2017.

   NOTING the expressed intention of the mother to complete twenty sessions of therapy with Ms T.

2. The Independent Children’s Lawyer shall provide to the principal of the school in which the child is enrolled a copy of these orders.

3. A registrar of this Court shall provide to the director of the Department of Communities and Justice a copy of these orders and reasons for judgment NOTING that the safety of a child aged 6 years is the reason for the provision of those documents.

Restraints

1. That pursuant to section 68B(1) of the Family Law Act 1975 (Cth) an injunction is made for the welfare and personal protection of the child, B born … 2013, and the mother of the child, MS SAMARAS born … 1983, as follows:

   That the father, MR RASUL born … 1981, is restrained from:

   (a)       Entering or remaining in, or approaching within 100 metres of:

   (i)The residence of the mother and child;

   (ii)The workplace of the mother;

   (iii)The school in which the child is enrolled;

   (iv)The home of the maternal grandparents, Ms F and Mr F Samaras at N Street, Suburb O NSW.

   (b)Assaulting, threatening, stalking, harassing and intimidating the child and the mother of the child.

   (c)Intentionally or recklessly destroying or damaging any property that belongs to or is in the possession of the mother and/or the child.

Overseas Travel

1. The marshal of the Family Court of Australia and the Australian Federal Police are to request that the child, B born … 2013, be forthwith removed from the Airport Watch List also known as the PACE alert system.

NOTATION

(A)The mother continues to be bound by her undertaking to the Court given by her on 21 January 2019 and filed in the Newcastle Registry of the Court on 25 January 2019 as follows:

Pending any further Court order I shall not facilitate any time or communication between the child, B born … 2013 and the Respondent father, Mr Rasul born … 1981. I understand that I must comply with this undertaking until I am released from this undertaking by order of this Court.[1]

[1] Undertaking of Ms Samaras filed 25/01/2019.

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 Samaras & Rasul 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 NEWCASTLE

FILE NUMBER: NCC 726 of 2017

Ms Samaras

Applicant

And

Mr Rasul

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders in respect of one child, a girl aged six years and five months at the date of trial.

2. The parties commenced cohabitation in 2002 and lived together in Sydney until 2012 or 2013.

3. There is an ongoing dispute between the parties regarding the date of separation. The mother reported separating from the father when she was pregnant although she acknowledges he was present at the birth of the child.

4. The father states that separation occurred after the birth of the child. Regardless, the parents separated before the child had any sense of the parties being together with her as a family unit.

5. The child has always lived with the mother.

6. The father initially spent time with the child in the presence of the mother and/or a member of the maternal family.

7. In July 2017 orders were made for the father to spend time with the child at a contact centre. Time did not occur in accordance with those orders. By arrangement between the parties, the father spent time with the child supervised by the mother.

8. In January 2019, following an incident earlier in that month, where the father was charged with contravening an Apprehended Domestic Violence Order (“ADVO”),[2] orders were made in this Court for the father’s time with the child to cease.

   [2] Exhibit 1.

9. The mother also at that time, entered into an undertaking to the Court to not facilitate time between the father and child.

10. Despite the order of the Court, the mother admits to breaching her own undertaking by supervising time on two further occasions.

11. The father has apparently not spent time with the child since September 2019.

The Parties

The Applicant Mother – Ms Samaras

1. The mother was 36 years at the date of trial. The mother is employed with the public service. She is a university graduate with wide ranging work experience.

2. The mother chose not to disclose her current address.

3. The mother has not re-partnered.

The Respondent Father - Mr Rasul

1. The father was 38 years at the date of trial. He was born overseas probably in the Middle East. The father commenced living in Australia on a student visa in 1999 and gained citizenship in 2005.

2. The father is employed as a driver with P Company.

3. The father usually lives in Sydney.

4. The father has a new partner, Ms Q. The father and Ms Q plan to marry and live together in Ms Q’s house in Suburb S a suburb of Sydney. Ms Q has a six year old daughter who will become a member of that household. 

The Trial

1. The trial took place over two days commencing 17 February 2020.

2. The parties were legally represented and had briefed counsel.

3. The trial concluded within the allocated time. Judgment was reserved.

The Issues

How should parental responsibility be allocated; solely to the mother or equally between the parents?

1. The presumption of equal shared parental responsibility does not apply given the history of family violence.

2. The mother has been the sole carer and decision maker for the child since her birth.

3. In circumstances where the child will continue to be raised in that way it is in the best interests of the child for the mother to have sole parental responsibility.

What time and communication should the child have with the father, if any?

1. The child has not spent time with the father without the mother or a member of the maternal family being present. The mother is not confident that the child is safe with the father so has been present for visits. She has thus been the victim of impulsive criticism, verbal abuse and demands on her for the arrangements to be made, all by the father.

2. The father chose not to take up the opportunity to spend time with the child in a contact centre where he could have developed a stronger independent relationship with the child.

3. The pattern cannot continue of the father demanding on short notice that the child be made available and the mother complying to avoid harassment.

4. Time and communication is unworkable.

What restraints should be imposed on either or both parents by injunction, if any?

1. The father must be restrained from attending the home and school of the child, the workplace of the mother and the home of the maternal grandparents.

2. The mother must be bound by her own undertaking not to facilitate time and communication.

What protective measures can be put in place for the child in circumstances where both parents have failed to comply with orders in the past?

1. These orders and reasons shall be provided to the Department of Communities and Justice (“the DCJ”) so that organisation has the context and background of these orders.

2. If the mother continues to make the child available to the father, the DCJ may need to consider taking the child into care for her own protection.

Should the restriction on overseas travel for the child be lifted?

1. Counsel for the mother submitted for the order restricting travel overseas to be lifted to enable the mother to travel with the child.

2. There was no opposition to that proposal and the order for removal of the child from the Airport Watch List is made accordingly.

The Applications

The Mother

1. By her Initiating Application filed 14 March 2017, the mother seeks residence, sole parental responsibility and for the child to spend no time nor communicate with the father. The mother also seeks restraints on the father approaching the mother and child or attending upon the mother’s residence, the maternal grandmother’s residence or the child’s school.

The Father

1. By his Amended Response filed 5 February 2020, the father proposes equal shared parental responsibility, for the child to live with the mother and spend time with the father each alternate weekend, half school holidays and special days. The father also seeks for telephone communication on Tuesdays and Thursdays.

The Independent Children’s Lawyer (“The ICL”)

1. The ICL did not have a preliminary position.

2. In submissions the ICL submitted strongly that there should be no time and communication between the child and the father due to unacceptable risk to the child arising from the inability of the father to control himself and to “own his behaviour.”

3. The ICL also urged the Court to compel the mother to obtain assistance from a psychologist in order to understand the risk she was exposing the child to by making her available to the father.

Brief History of Relevant Events

1. In 2002 the parties commenced cohabitation and married in 2012. One year later, the child was born.

2. The mother deposes verbal, physical, sexual and emotional abuse throughout the relationship; where the father demanded sex, hit, kicked and slapped the mother and threatened to kill her. The mother explains at times she took up to one week off work due to the severity of her injuries.

3. After separation, in either mid-2013 or mid-2014, the child lived with the mother and spent informal supervised time with the father, usually in a public place, for about two hours on an undefined basis/as agreed.

4. On 29 January 2017 the father was arrested and charged over a recorded conversation with the mother (“the January 2017 telephone call”).

5. On 9 February 2017 an interim ADVO was made for the protection of the mother and child.

6. The father has been charged with breaching the ADVO on a number of occasions.

Family Court of Australia Proceedings

1. On 14 March 2017 the mother commenced these parenting proceedings.

2. The mother also filed a Notice of Risk alleging family violence, namely, that the father had threatened to kill the child and had been sexually, physically and psychologically abusive towards the mother throughout the relationship.

3. The allegations included matters arising from the January 2017 telephone call.

4. On 21 April 2017 the charges against the father of use carriage service to threaten to kill and of stalk/intimidate were dismissed in the Local Court. However an ADVO was put in place for two years (and on its expiry, another two years due to expire in 2021).

5. On 24 April 2017 interim orders were made in this Court ex parte, before the father had filed his material.

6. The orders provided the mother with sole parental responsibility and residence, and for the father to have no contact with the child. The father was restrained from approaching the mother and the child. The child was also put on the Airport Watch List.

7. On 21 July 2017 the father responded to the mother’s application and sought time with the child to occur each alternate weekend, communication and half school holidays. The father filed a Notice of Risk alleging no abuse.

8. On 27 July 2017 after an interim hearing, orders were varied to provide for time between the father and child to occur at a contact centre once per month for not less than two hours.[3]

   [3]Samaras & Rasul [2017] FamCA 614.

9. The January 2017 telephone call was considered when interim orders were made in July 2017 as follows:[4]

   [4]Samaras & Rasul [2017] FamCA 614, 58-71.

   58.The most significant area of dispute is over personal conduct and family violence.

   59.A notice of abuse was filed by the mother setting out a telephone conversation between the parties said to have taken place on 28 January 2017.  This conversation was taped by the mother, using her telephone, and captured on a USB stick which was tendered into evidence in the most recent court event. The father conceded that the conversation had taken place between them but asserted that it took place in January 2015.  Further, he denied that he had intended any to threat to the mother or the child but rather asserted that both parties were simply saying ridiculous things to each other.

   60.It was this telephone call which gave rise to two criminal charges against the father; one, use carriage service to threaten to kill; and two, stalk/intimidate/ intend fear, physical or mental harm.

   61.The father was arrested on 29 January 2017 and at that time a provisional AVO was made.  The father provided evidence in these proceedings from the Local Court that those two charges were dismissed on 21 March 2017 and withdrawn.  He further asserted that the dismissal was on the basis of examination of his telephone records which revealed that no telephone call had been made.  Those records were annexed to his affidavit.  They were voluminous on many days but there were no telephone calls on 28 January 2017 in a continuous pattern of calls being provided.

   62.It is conceded by the mother, as it had to be, that the charges were withdrawn.

   63.The final AVO was made on the day of the dismissal of those criminal charges that is 21 March 2017.  A submission was made on behalf of the mother that the language and threat in the conversation would be of the greatest concern to the Court even if the telephone call was not made on 28 January 2017 as asserted. 

   64.This submission ignores the significance of the threat having been asserted to be a contemporaneous threat and that charges were made on that basis.  In short, it is to ignore the possibility that the mother simply lied to the police about the telephone call. 

   65.The Notice of Abuse filed on behalf of the mother contained selected parts of the conversation.  The recording begins after the telephone call has commenced so I cannot come to a conclusion about who initiated the call.  The recording is audio and visual but only the mother’s hand is identified on screen. It is titled “recording for police MP4”. 

   66.During the course of this conversation the father used grandiose threatening, horrible, language.  He said he would burn the child, put a bullet in her head, to which the mother responded, “talk seriously”.  The father went on to say, “I’ll f…ing stab her if she does something wrong.  I’ll stab her in the chest.”  These are hugely threatening words.  There was an underlying stream of insulting remarks levelled at the mother usually, “dirty f…ing bitch”.

   67.The mother kept the father on the line, which was easy, since he asked her to when she threatened to hang up.  The father went on to say in this conversation that he was coming to visit his daughter on Saturday that he would drive up, he would be there at 6.00 pm,

   Father:All right.

   Mother:Whatever

   The mother’s tone was both calm and accepting.  The language used by the father throughout was profane and repellent but there was nothing to suggest that it was unusual language or surprising to the mother.  I can conclude that the mother controlled the telephone call and, of course, she knew she was recording it.  Her voice was calm, patient, polite, but at times contemptuous of the father.

   68.In my view she prompted the father to make certain statements probably well aware of his propensity to talk at length if the opportunity was there.  For instance, the mother said more than once, “[B] doesn’t deserve to be around a person like you”, and, “What kind of person are you?” The mother said on at least four occasions, “You’re a sick person” and “What are you going to do?  Hit her too?”  The voice of the father during this call impressed as strange as if possibly affected by drugs or alcohol but that may be completely wrong.  That will be a matter for final hearing.  The focus of the father’s commentary on the mother was one of sexual jealousy; an apparent belief that the mother had found a new partner.

   69.It was in this context that the father said about the child, “She’s only 18 months old.  Look what you’re putting her through.  She is not having the best life while you are fucking someone else.”  This was in response to the mother having said that the child was having the best life because she was with her mother “24/7”.

   70.The father had been seeing the child regularly since her birth supervised by the mother.  He knew her age.  On the father’s evidence there had been a friendly family Christmas Day on 2016 and an enjoyable meeting of the parents and the child on 22 January 2017.

   71.If, as it seems likely, the telephone call was not made on 28 January 2017 but rather two years previously or at some other time then the telephone call was not the trigger for the mother’s report to police and, later, this application. Testing of the evidence in a final hearing may clarify the events.

10. Time did not occur in accordance with the July 2017 orders.

11. Neither party contacted the relevant contact centre. Instead, the child continued to spend time with the father supervised by the mother. The mother’s reasoning for this, was that the father had threatened to attend the maternal grandmother’s home and abuse the maternal grandmother. The mother is protective of her own mother who is a full-time carer for the maternal grandfather, an invalid.

Family Report

1. On 26 February 2018 neither party attended for Family Report interviews, which were re-scheduled for March 2018.

2. Interviews were re-scheduled for March 2018. On that occasion the mother attended with the child. The father refused to attend.

3. The child reported to the family consultant that she saw her father with her mother but could not recall the last time she had seen him. The father had been out of Australia since Christmas. The child also stated that she enjoyed spending time with him.

4. From about April 2018, the mother reports the father spent time with the child about six times once every two months, usually for two-three hours. The mother was present to personally supervise that time.

5. The visits were arranged “on demand”.

6. In July 2018 dates for trial were vacated on the application of the father over the opposition of the mother. New dates in January 2019 were allocated.

7. In September 2018 the father set up balloons, a cake and presents for the child’s fifth birthday. The mother and child attended at the father’s insistence and under the threat of continuous telephone calls until the mother agreed.

8. In December 2018, the father, still subject to an ADVO, told the mother he had Christmas presents and wanted to see the child at Suburb V. The mother probably alerted police who attended, arrested the father and charged him with breach of the ADVO.

9. The father asserted that “he thought the ADVO had expired”. It is more likely that he was simply indifferent to the existence of the order.

10. The father was quite angry and indignant at what he perceived as having been “set up” by the mother for arrest. He did not appear to consider that he had been  wrong to demand the visit.

11. On 7 January 2019 the mother again agreed to provide the child for time with the father. She took the child to meet him at the agreed shopping centre. The father was queueing at an Apple Store. Hours passed. The child became restless and tired. The mother apparently felt unable to call off the visit and simply take the child home. The father did not choose to give up the chance to make his purchase in order to spend time with the child.

12. Instead the mother agreed for the father to come to her home when he was ready. When he did there was an argument between the father and the child almost immediately apparently over a piece of chocolate. The mother alleges that the father lunged at the child, pinned her against a wall and pulled at her ear. The mother says she grabbed the child and hugged her to protect her from the father. The father then punched the mother in the face.

13. Police were called. The father was arrested, charged and his blood was tested for narcotics.

14. The child must have felt frightened for her own safety and that of her mother. She would have experienced physical pain herself and the emotional pain of seeing her mother being struck in the face by her father. She bravely yelled out “Don’t do that to my mother”.

15. In January 2019 trial dates were again adjourned due to the father’s pending criminal proceedings.

16. On 25 March 2019 the father consented to a further ADVO for the protection of the mother and child for two years.

17. In May 2019 the charges against the father were dismissed in the Local Court; the father was found not guilty after hearing. The mother described herself as “devastated by the result”.[5] It is easy to accept that she would have been. She must have understood that the father attending her home by arrangement may have had an ameliorating effect on the outcome. The father defended himself by stating truthfully that the mother had agreed for him to be there.

    [5] Affidavit of the mother filed 20/11/2019, para 71.

18. In June 2019 new trial dates were allocated for February 2020.

19. In July 2019 the father was charged with various offences unrelated to the mother and subject child but relevant to his conduct and attitude.

20. On 31 August 2019 time for the child facilitated by the mother resumed.

21. In September 2019 the father again attended the birthday celebration of the child. She was six. There were a series of arguments in the child’s presence including the father’s expressed disapproval of the child taking off her shoes:

    What kind of mother doesn’t have shoes on her daughter’s feet at a birthday party, you’re a junkie.[6]

    [6] Affidavit of the mother filed 20/11/2019, para 59.

22. On 20 October 2019 the father rang and said to the child who was on speaker phone:

    You and you’re(sic) Mum are stupid. Go find another dad.[7]

    [7] Affidavit of the mother filed 20/11/2019, para 65.

23. One week later he sent a text:

    Go find another Dad. I got not(sic) to do with her anymore. I got people’s kids go(sic) all over me, play, laugh and my own is shit because you’re shit. I’m done I swear (sic) God this is it.[8]

    [8] Affidavit of the mother filed 20/11/2019, para 66.

24. If the father had said and done nothing else, these messages alone, so aggressive and degrading, would raise a concern that the child required protection from psychological abuse.

25. There has been no contact between the father and child since those messages at the date of trial.

26. On 4 December 2019 an order pursuant to Section 102NA of the Family Law Act 1975 (Cth) (“the Act”) was made for the father to be legally represented at trial which he was.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant Mother – Ms Samaras

   (a)Initiating Application filed 14/03/2017;

   (b)Affidavit of mother filed 20/11/2019;

   (c)      Affidavit of Ms G (maternal aunt) filed 16/06/2017;

   The Respondent Father – Mr Rasul

   (d)Amended Response filed 5/02/2020;

   (e)      Affidavit of father filed 5/02/2020;

   (e)Affidavit of Ms Q (father’s partner) filed 5/02/2020;

   Reports

   (f)Family Report dated 12/03/2018.

The Law

1. The objects of the Act in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.  The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Parental Responsibility

1. The mother proposes that she have sole parental responsibility. The father had not referred to the issue of parental responsibility in his orders sought until his very recently filed Amended Response. He now proposes equal shared parental responsibility.

2. The parties agree that the child should continue to live with her mother as she has done all her life.

3. Other than with respect to when, and in what circumstances the child should spend time with the father, the parties appear to be content with the mother making decisions about day to day and long term issues for the welfare of the child.

4. In those circumstances it is appropriate for the mother to have confirmation of her role by an order for sole parental responsibility.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. The child has her most important relationship with the mother. The family consultant noted a “close positive and warm relationship (between mother and daughter) with no concerns identified.”[9]

   [9] Family Report dated 12/03/2018, para 128.

2. Information about the relationship between the father and the child is limited. The parties separated when the child was an infant. She has not spent any time alone with her father since her birth. The time she has spent, has been supervised by the mother, or together with one or more members of the maternal family.

3. The relationship between the child and her father has most probably been damaged by his actions. The child would be confused by why the father would turn aggressively on her, and then attack her mother in January 2019. Even more she must have felt hurt and confused by his telephone call in October 2019. There can be no satisfactory explanation or excuse for such behaviour.

4. Twelve months previously the child has said to the family consultant when asked how her parents got on with each other “Dad be nasty to Mum but that ok.”[10] It is most unlikely that the child would be so sanguine about her father now. She would be justified in feeling angry with him and fearful for herself and her mother.

   [10] Family Report dated 12/03/2018, para 124.

5. It is apparent that risk of harm outweighs past benefit in this relationship.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. There was at least one ADVO in 2009 for the protection of the mother before separation of the parties.

2. The mother contends that she was unaware that her attendance in 2012 at the mosque was for a marriage ceremony; all discussions being in Arabic which she could not understand.

3. Since the birth of the child the mother asserts and the father denies that there have been multiple incidents where he has threatened, struck and grabbed the mother, and unleashed torrents of verbal abuse. 

4. In 2017 the mother went to the police with a taped recording of a conversation with the father in which he was threatening the mother and the child and was abusive to the mother in coarse language.

5. As a result an interim ADVO was put in place, made final in March 2017 for two years.

6. In April 2017, after an ex parte hearing in this Court, the father went straight to the home of the maternal grandparents and banged on the door and window. He later said he did not know he was prevented from going there although the ADVO was specific.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The child is now six years old. Her parents have not lived together during her life time.

2. At the interviews for the Family Report the child expressed her pleasure at seeing the father and receiving gifts from him.

3. She referred to the father as being mean to the mother and commented “but that OK”.

4. That comment, revealing acceptance by the child of what I conclude is over-bearing and insulting behaviour by the father towards the mother, is of considerable concern. It reflects a belief by the child that the behaviour of the father towards her mother and herself is normal.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The child was observed by the family consultant to have a close trusting relationship with the maternal grandmother whom she calls “Baba”.[11]

   [11] Family Report dated 18/03/2018, paras 124 and 127.

2. The maternal aunt gave evidence. I conclude that she is committed to ensuring the safety of the child. I infer that she thought that the mother has been placating the father to the detriment of the child by supervising time for him.

3. The father’s partner gave evidence. She was strongly supportive of the father’s rights as a parent.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. Over the years the father has been in the habit of ringing the mother and telling her that he is coming to visit the child. Whether or not she agrees, he arrives. In the past the father has ignored the conditions of an ADVO with reference to attending the home of the maternal grandparents.

2. The father has successfully persuaded the mother that she must do as he directs in this regard.

3. It appears that the mother has become inured to his insulting offensive language directed at her. “It’s just normal, very normal behaviour (for him).”

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. The mother has been exempted from applying for a Child Support Assessment on the basis of family violence. She has therefore accepted total responsibility for financial provision for the child. The father has thus been absolved.

2. The father does not pay child support. He buys and delivers gifts to the child and gives her money.

3. The father has an obligation to maintain the child just as the mother does.

4. Maintaining a child involves providing food, clothes, accommodation and education. Also holidays, outings and extra-curricular activities such as sport, music and dance if the parents can afford the cost of those activities.

5. Giving toys, sweets and money as gifts, as the father has done, has no bearing on the obligation of a parent to maintain.

6. The father could have sought a Child Support Assessment himself or paid money into a trust account if the mother did not wish to nominate an account.

7. I consider that the father has failed to fulfil his obligation to maintain the child.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. The child has had an artificial experience of being with her father, always in the presence of at least one maternal family member.

2. Although the father will feel the loss of the relationship, the child is likely to benefit from not being exposed to arguments between the parents, directives by the father to the mother for her to comply with, and the possibility of impulsive violence directed at her and/or the mother if the father becomes angry and frustrated.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

The Father

1. By his acceptance that the child should live with the mother, the father acknowledges that the mother has the capacity and willingness to meet the needs of the child.

2. The father concedes that the mother takes very good care of the child. The evidence supports that concession.

3. The father during cross-examination also accused the mother of manipulating the child against him. The evidence does not support such a finding. That accusation came spontaneously when the father was asked to comment on a statement made by the child (then aged four and half years) to the Family Consultant namely “Dad is mean to Mum but that OK”. The child had gone on to say that she enjoyed receiving presents from her father and spending time with him. The father had chosen not to read the family report so his response came in the context of self-imposed ignorance. He did not know of the later positive comment but impulsively blamed the mother for the initial negative comment.

The Mother

1. The mother has a deficiency in her ability to meet the child’s need for safety and security both physical and emotional. Her comment during cross-examination was as follows:

   After many years of psychological abuse it’s very difficult and I regret.

2. The mother appears to be reluctant to exercise her authority as a parent.

3. For instance, in her oral evidence the mother said it would be easier for her to stop supervising time with the father in future because the child had started to say she did not want to see him. That is not a decision for the child to make.

4. Adults making and enforcing decisions which children do not necessarily appreciate is a part of parental capacity. Painful or frightening medical and dental procedures, visits to relatives a child does not like, school attendance, are examples of the exercise of parental authority.

5. I do not conclude that the mother lacks capacity, the child is developing well in her care. It is more likely the case that it is just in this area, of the father/child relationship, that the mother has not asserted her authority in the interests of the child.

6. I conclude that she has been overwhelmed by him.

7. The mother advised the Court through her counsel that she was consulting a psychologist, Ms T.

8. Therapy had begun in November 2019 and to date of trial there had been three sessions.

9. There was no evidence from Ms T in this trial.

10. In her oral evidence the family consultant strongly recommended that therapeutic work be undertaken by the mother, with a minimum of 10 sessions, to:

    ·Enhance the mother’s knowledge and understanding of family violence;

    ·To assist the mother to cease facilitating time between the child and the father by supervising time herself in breach of orders/undertaking.

11. I accept this recommendation.

12. The ICL urged the Court to make an order compelling the mother to obtain professional therapeutic assistance to enable her to understand that personal supervision of the child, although intended to be protective, exposes the child to risk.

13. The mother clearly would benefit from professional assistance to understand that appeasing the father and complying with his demands for time with the child may put the child at risk of further harm.

14. I have not made a compulsory order. All therapeutic work should be undertaken willingly not to avoid legal consequences.

15. The mother has told the Court that the therapeutic evidence is underway and the Court has accepted that.

16. Accordingly, orders have been made for the treating psychologist to be provided with relevant orders, reasons for judgment and a copy of the Family Report.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The child is a six year old girl with no siblings. The maternal family are of European heritage and Christian by faith.

2. The paternal family are from the Middle East and are Muslim by faith.

3. The parties went through a marriage ceremony according to the rites of Islam in a Mosque. The mother had not told her family of that marriage and she denied it until the father produced the record. There is no evidence of the marriage being registered at Births, Deaths and Marriages in New South Wales. It may have been.

4. There is a big story and interesting diversity for the child to learn about and understand when she reaches adulthood.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. The mother takes very seriously her role as a parent. She has devoted herself to caring for the child.

2. The father has quite a proprietary attitude to the child. The father described the child as being his; that he was more of a parent than the mother because he had ‘given’ the child to her. He is clearly proud of being a father.

3. There are risks to the child growing up relating to the consequences of reflecting badly on the father in his own view. If she did not do what he wanted or was not the kind of child he expected her to be there would likely be harsh consequences.

4. The father has enjoyed buying clothes and toys, setting up parties, taking photographs but he does not know the child very well.

1. He has not responded to her day to day needs to be fed, clothed, sent to school and medicated for illness.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. On 7 January 2019 the parties agreed to meet. It must have been a tedious day for the child. The parties met at a shopping centre in Suburb R, Newcastle. When the father realised that the centre did not include an Apple store the father asked and the mother reluctantly agreed to meet again later at another shopping centre which had that particular shop. However the majority of the time was then spent waiting for the father as he queued to be served in the Apple store. Hours passed. The child was tired and wanted to go home. She suggested that the father come to her home to give her the Christmas presents which had been promised. The mother agreed he could come to the home. It was a fateful concession.

2. The mother describes an ugly incident taking place almost immediately on the arrival of the father inside the home where the father assaulted the child and then the mother, causing injury to both:

   As he walked in the door he said to me words to the effect, “Look at where you live, you live like a junkie.” I said, “Be quiet, you’re here to see B.” B commenced eating some chocolate to which the father yelled at her and said, “Don’t eat that fucking chocolate.” B said, “Don’t tell me what to do, this is me and Mum’s house. You need to go.” The father said, “Don’t ever say that to me again.” He then lunged at B and grabbed her by the arms and pinned her against the wall and commenced pulling at one of her ears. I then jumped forward and grabbed B off him and placed her in a hug. B was crying and yelling “Mum, Mum, Mum.” The father then said to me, “Don’t speak to her when I’m speaking.” He then punched me with a closed fist to the right-hand side of my face causing me bruising. I continued to hold B to protect her. B was yelling out “Don’t do that to my Mum.” I said “Just get out.” towards the father. He eventually walked out through the garage and I locked the garage door behind him.[12]

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

[12] Affidavit of the mother filed 20/11/2019, para 39.

1. At the commencement of this trial I raised with the parties the prospect of making no orders and dismissing the outstanding application and response.

2. The reason for contemplating this course was that the Court should not waste resources conducting a trial and making orders which are then disregarded.

3. The parties both chose not to comply with orders for time supervised in a contact centre. The orders were made after a contested interim hearing.

4. Professionally supervised time would have allowed the father and child to get to know each other in a safe setting for the child. It would have tested the commitment of the father and also relieved the mother of the stress of personal supervision by herself.

5. Subsequently there was an incident in the home of the mother after she consented to the father seeing the child there. On the balance of probabilities I conclude that the father did roughly handle the child and assault the mother. Police were called and statements taken. At the very least the child was badly frightened.

6. Subsequently orders for time were suspended and the mother gave an undertaking not to provide supervision herself.

7. The father continued to press and harass the mother about time with the child.

8. The mother breached her undertaking and supervised time at least twice, perhaps more often.

9. The ICL vigorously submitted for final orders to be made by the Court to protect the child.

Any other fact or circumstance that the court thinks is relevant

1. The father is an impulsive, energetic man. He acts and reacts swiftly. He appears to have difficulty attending to what is unfolding and what is being said in particular situations, because he has already begun to act.

2. The father also uses fluid language. He speaks quickly and without breaks. Very often his language is profane and offensive. The taped January 2017 telephone call[13] is an example of the way he speaks to the mother.  His language is insulting and rudely critical of the mother. He expects her to understand and not complain.

   [13] Exhibit 6.

3. The mother appears to have become inured to being called “a stupid bitch”, “a fucking…”. She does understand that, that is who he is and how he speaks. She has tolerated it for years.

4. If it was just the use of swear words for want of something better the child could learn about words in context. In this case I conclude that it is not paucity of language. The father uses streams of invective as a way of prevailing over the mother to get his own way. He becomes an implacable wall of sound.

5. In the past, after a separation, when the father wanted reconciliation he made countless such calls one after the other, half insulting/half pleading. While the mother was at the police station seeking help, more and more calls came.

6. A child of any age would be defeated by such behaviour. To be in the presence of friends or strangers whilst the father was speaking that way would be humiliating and detrimental to self-esteem.

Conclusion

1. I have concluded that the child will do best if she has no contact with the father for her own safety. She should not be exposed to her father’s spontaneous anger and criticism under the guise of discipline.

2. Further, the child must be protected from any further exposure to her mother being physically assaulted and emotionally degraded by the father. The mother is solely responsible for the financial support and care of the child. It is critical that she is able to live and work in a safe way.

3. There is a risk, given the past history, that the mother will resume the role of supervisor for time between the child and the father. If she does she will again put herself and the child at risk of harm. The mother is under pressure internally, and also externally by her own mother, to honour the role of the father in the life of the child and allow time. The mother may succumb to that pressure.

4. For that reason these orders and reasons will be provided to the DCJ which may be able to assist the child if the mother does not develop a different means of exercising her protective role. One outcome for the child would be that she was removed into care for her own safety.

5. Orders are made accordingly.

I certify that the preceding one hundred and seventy-two (172) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 17 April 2020.

Associate: 

Date:  17 April 2020