Solghi & Danwar
[2022] FedCFamC2F 1654
Federal Circuit and Family Court of Australia
(DIVISION 2)
Solghi & Danwar [2022] FedCFamC2F 1654
File number: PAC 1866 of 2018 Judgment of: JUDGE TURNBULL Date of judgment: 2 December 2022 Catchwords: FAMILY LAW – CHILDREN – parental responsibility – children to live with the Mother – children to communicate in writing (through cards, letters, and/or presents) with the Father – whether the children should spend any time with the Father – children’s views are to not see the Father – children’s views are entrenched – where the Mother is unable to promote any time between the children and the Father – allegations of family violence including physical violence and coercive control – unacceptable risk of exposure to family violence – arrangements for travel to non-Hague Convention country Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61B, 61C, 61DA(2), 65D(1), 65DAC, 65Y, 68B(1)(a), 69ZT(1)(c), 111B;
Evidence Act 1995 (Cth) ss 76, 79, 140, 141, 164(1);
Australian Passports Act 2005 (Cth) s 11.
Family Law (Child Abduction Convention) Regulations 1986 (Cth) r 23(1).
Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, 1343 UNTS 98 (entered into force 1 December 1983);
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
Cases cited: Bant & Clayton [2019] FamCAFC 198
Bayer & Imhoff [2010] FamCA 532
Bondelmonte & Bondelmonte (2017) 259 CLR 662
Briginshaw v Briginshaw (1938) 60 CLR 336
Godfrey & Sanders [2007] FamCA 102
Goode & Goode [2006] FamCA 1346
Grainger & Grainger [2015] FamCA 276
Isles & Nelissen [2021] FedCFamC1F 295
Isles & Nelissen [2022] FedCFamC1A 97
Isles v Nelissen [2022] HCASL 193
Jurss & Jurss (1976) FLC 90-041
Koyroyshs & Koyroyshs [2020] FamCA 626
M v M (1998) 166 CLR 69;
Maldera & Orbel [2014] FamCAFC 135
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Meadis & Meadis [2022] FedCFamC1F 62
MRR & GR (2010) 240 CLR 461
Murphy & Murphy [2007] FamCA 795
Re Andrew (1996) FLC 92-692
Re Lynette (1999) FLC 92-863
Russell & Close [1993] FamCA 62
Stamatou & Stamatou [2022] FedCFamC1F 241
Theophane &Hunt [2014] FamCA 1038
Withers & Russell [2016] FamCA 793Stephen Odgers, Uniform Evidence Law (Lawbook, 16th ed, 2021).
Division: Division 2 Family Law Number of paragraphs: 209 Date of hearing: 5–6 May, 4 July 2022 Place: Parramatta and Hobart, delivered in Hobart Counsel for the Applicant: Ms Murphy Solicitor for the Applicant: Gonzalez & Co Counsel for the Respondent: Mr Russo Solicitor for the Respondent: Dean Lawyers Counsel for the Independent Children's Lawyer: Mr Blank Solicitor for the Independent Children's Lawyer: Claremont Legal ORDERS
PAC 1866 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SOLGHI
Applicant
AND: MR DANWAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE TURNBULL
DATE OF ORDER:
2 DECEMBER 2022
THE COURT ORDERS THAT:
1.MS SOLGHI (‘the Mother’) have sole parental responsibility for X born in 2009 (‘X’) and Y born in 2010 (‘Y’), together referred to as ‘the children’.
2.The children shall live with the Mother.
3.The children spend no time with MR DANWAR (‘the Father’).
Giving effect to these orders — email addresses
4.The Father shall, within seven (7) days from the date of these orders:
(a)open an email address, referred to as the Father’s email address, for the purpose of communications necessary for both parties to comply with these orders; and
(b)provide the Father’s email address to the Mother’s solicitors, who shall provide the Father’s email address to the Mother.
5.The Mother shall, within seven (7) days from the date of these orders:
(a)open an email address, referred to as the Mother’s email address, for the purpose of communications necessary for both parties to comply with these orders; and
(b)provide the Mother’s email address to the Mother’s solicitors, who shall provide the Mother’s email address to the Father.
Giving effect to these orders — the Father’s PO box
6.The Father shall, within fourteen (14) days of the date of these orders, obtain and maintain, at his own expense, a post office box at the Australia Post office located at B Street, Suburb C, herein referred to as the Father’s PO box, for the purpose of giving effect to these orders.
7.Within seven (7) days of upon obtaining a post office box pursuant to order 6 above:
(a)advise the Mother, via the Mother’s email address, of the full details of the Father’s PO box, including the PO box number and location; and
(b)provide to the Mother’s solicitors all keys and/or codes necessary to enable the Mother to access the Father’s PO box.
Provision of cards, letters, and/or presents
8.Upon satisfying the obligations set out at orders 6 and 7 above, the Father may provide to the children cards, letters, and/or presents through the Father’s PO box:
(a)by 4:00pm on the day prior to each of the children’s birthdays in each year;
(b)by 1:00pm on 24 December in each year; and
(c)commencing in January 2023, by 4:00pm on the seventh (7th) day of each calendar month;
noting notation A with respect to time.
9.For the purposes of these orders, the dates and times set out in order 8(a)–(c) shall be referred to as the Father’s PO box deadlines.
10.The provision of cards, letters, and/or presents by the Father to the children in order 8 is permitted on the conditions that the Father does not, through any card, letter, and/or present:
(a)denigrate, in any way, the Mother, the children, or any person related to the children, including using abusive or belittling language;
(b)seek to find out any location at which either child, together or separately, is going to be situated, including but not limited to the children’s residence, school/s, extra-curricular activities, or any childcare facility at which they attend;
(c)mention, to either child, anything concerning any family law proceedings relating to the children or either child;
(d)pressure either child to spend time or communicate with him; or
(e)pressure the Mother, through either child or directly, to have either or both children spend time or communicate with him.
11.To effect the provision of cards, letters, and/or presents pursuant to order 8 above the Mother shall on 16 January, 3 June, and 24 December in each year, and on the seventh day of each calendar month, on each occasion after the times set out in the Father’s PO box deadlines:
(a)within 24 hours after each of the Father’s PO box deadlines, retrieve any cards, letters, and/or presents from the Father’s PO box;
(b)as soon as is reasonably practicable, provide any cards, letters, and/or presents to the child or children, unopened;
(c)upon providing any card, letter, and/or present to the child or children, encourage them to open and read any cards or letters and accept any present provided by the Father; and
(d)encourage the child or children to provide the Father, through the Father’s PO box, a card and/or letter in response to any cards, letters, and/or presents provided to them by the Father.
12.If one or both children choose to send the Father a card or letter pursuant to order 11(d) above, the Mother shall inform the Father, through the Father’s email address, that the child’s written communication has been delivered, or shall be sent, to the Father’s PO box for his collection within forty-eight (48) hours of the Mother’s email notifying the Father in accordance with this order.
Accommodating time or further communication if the children express a view
13.If one or both of the children express a view to the Father, in writing, to spend time or communicate with the Father outside the scope of these orders, then the Father may inform the Mother via the Mother’s email address of the child or children’s views as expressed, attaching evidence of the same, and putting a proposal for such time or communication to occur.
14.Notwithstanding orders 3 and 8, if one of both of the children express a view in accordance with order 13 above, the child or children may spend time or communicate with the Father as may be agreed between the Mother and the Father in writing.
Educational and medical information
15.The Mother shall, within seven (7) days of receiving:
(a)each child’s end of term and/or end of year school reports;
(b)results of any examinations administered by the New South Wales Educational Standards Authority, or any subsequent equivalent body, taken by each of the children in grades 11 and 12; or
(c)results of any National Assessment Program — Literacy and Numeracy (‘NAPLAN’) tests undertaken by either child;
deliver or forward a copy of the document/s to the Father’s PO box or the Father’s email address, with the Mother to be at liberty to redact any documents listed at order 15(a)–(c) above so as to remove any potential identification of the children’s residence or the school/s or places at which they attend.
16.To effect the Father’s collection of any documents delivered to the Father’s PO box pursuant to order 15, the Mother shall inform the Father, through the Father’s email address, that such documents have been delivered to the Father’s PO box for his collection within forty-eight (48) hours of the Mother’s email notifying the Father in accordance with this order.
17.The Mother shall, as soon as is reasonably practicable, inform the Father through the Father’s email address of any serious illness or injury affecting either child, including:
(a)a description of the illness or injury; and
(b)any treatment prescribed;
with the Mother at liberty to omit or redact any information which may potentially identify the child or children’s residence, school, usual places of attendance, or places which they will attend in future.
Injunctions
18.Pursuant to s 68B(1)(b)(i) of the Family Law Act 1975 (Cth), and except for as otherwise provided in these orders, the Father be and is hereby restrained by injunction from contacting or communicating with the Mother, save and except for the following circumstances:
(a)if the Mother emails the Father, to the Father’s email address, requesting a response from the Father with respect to the subject matter or questions raised in her email, the Father may send an email to the Mother’s email address in response to the matters raised by the Mother;
(b)as foreshadowed at orders 13 and 14, if either child expresses to the Father in writing that they wish to communicate or spend time with him outside the scope of these orders, the Father may email the Mother’s email address notifying her of the child or children’s wishes as expressed, attaching evidence of the same, and putting a proposal for such time or communication to occur.
19.Subject to order 20, and pursuant to s 68B(1)(c) of the Family Law Act 1975, the Father be and is hereby restrained by injunction from entering, remaining in, loitering at, or removing or collecting either child from, either of the children's schools and/or childcare facilities.
20.In the event that the children express a view to spend time with the father outside the scope of these orders, and if orders 13 and 14 are satisfied (noting the notation at C), the Father may attend at or collect either or both children from such locations as is agreed in writing between the Mother and the Father.
21.Pursuant to s 68B(1) of the Family Law Act 1975, the Father be and is hereby restrained by injunction from attending the Australia Post office located at B Street, Suburb C within twenty five (25) hours after each of the Father’s PO box deadlines.
22.Both parents shall refrain from discussing any aspect of these proceedings within the presence or hearing distance of the children.
23.Both parents shall refrain from denigrating the other parent, or allow others to do so, within the children’s presence or hearing distance.
24.Wherever these orders require or accommodate for the parents to agree any matter in writing, they are to do so via their email addresses pursuant to orders 4 and 5 above.
Travel documents
25.The Mother shall hold the children’s passports and, for this purpose, the Independent Children’s Lawyer has the authority to release any of the children’s passports held in the possession of the Independent Children’s Lawyer to the Mother’s solicitors within seven (7) days of the date of these orders.
Other
26.All extant orders, save for these orders and the order appointing the Independent Children’s Lawyer (at order 3 of the orders dated 27 September 2018), be discharged.
27.The order appointing the Independent Children’s Lawyer shall be discharged as and from 4:00pm on 9 December 2022.
28.All outstanding applications be dismissed.
THe Court notes that:
A.For the purpose of the Father’s PO box deadlines in order 8 above, the period of time in which the Father may deposit any cards, letters, and/or presents commences at 12:00 (midnight) and concludes at 4:00pm for X’s birthday (the following day), for Y’s birthday the following day, and 24 December (Christmas Eve), and on the seventh day of each calendar month.
B.The Mother has expressed a desire to travel internationally with the children, particularly to India. Pursuant to s 65Y of the Family Law Act 1975 it is an offence (punishable by imprisonment for three (3) years) for the Mother to remove the children from Australia without either:
(a)the Father’s written consent in accordance with s 65Y(1)(c)(i); or
(b)an order of a court permitting such travel.
If the Mother intends to travel internationally with the children she will need to make an appropriate application to this Court.
C.In the event that either child expresses a view to communicate or spend time with the Father outside the scope of these orders (as contemplated by orders 13 and 14) then it is expected that the parents will commence community-based mediation to negotiate an outcome.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Solghi & Danwar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Turnbull
Overview
These Reasons concern two children — X (13) born in 2009 and Y (12) born in 2010. X is in grade eight and Y is in grade six. Both children are intelligent, social, and insightful. They particularly enjoy sports and mathematics and have, due to COVID-19, experienced some disruptions to school and sports activities. It is my hope that this judgment, and the accompanying suite of final orders, allow X and Y to most fulsomely pursue their interests, realise their potential, and enjoy what remains of their childhood.
Ms Solghi (‘the Mother’) initiated this litigation against Mr Danwar (‘the Father’) on 1 June 2018. The application proceeded to a three-day final hearing in May and July 2022. The question of the children’s time with the Father formed the crux of the trial — the Mother and the Independent Children's Lawyer (‘ICL’) seek that there be no contact, and the Father seeks time with the children each alternate weekend and for one half of all school holidays. The parties also disagree about the allocation of parental responsibility and whether the children should be placed on the Family Law Watchlist. As for the question of contact, I refer to Tree J’s remarks as to the severity of a ‘no contact’ order:
Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. …[1]
[1] Grainger & Grainger [2015] FamCA 276, [52].
This matter involves two parents who appear to stand oceans apart. The Mother alleges several instances of family violence against the Father, all of which he denies. Both parents report markedly different accounts of the children’s feelings, behaviours, and experiences. As a result, the Mother and the Father hold disparate views as to the orders which will serve the children’s best interests. The ICL (appointed on 27 September 2018) holds largely the same position as the Mother. The Mother and ICL’s proposals reflect the views expressed by X and Y to Ms D, the family consultant, in the two family reports prepared in these proceedings.[2] The ultimate orders are a matter upon which I must decide pursuant to pt VII of the Family Law Act 1975 (Cth), to which I refer in these Reasons as ‘the Act’.
[2] Family Report, Family Consultant Ms D, 4 September 2019 (‘Family Report, September 2019’); Family Report, Family Consultant Ms D, 11 March 2022 (‘Family Report, March 2022’).
Before continuing I note that the Father’s current wife, Ms E, has the same surname as the Mother in these proceedings. The Father currently lives with Ms E and their son, F, born in 2021. To avoid confusion these Reasons will refer to Ms Solghi as ‘the Mother’, and to Ms E as ‘Ms E’. Ms E did not give evidence at trial, nor was she involved in the family report interview with Ms D in February 2022. She provided a short affidavit upon which Mr Russo initially sought to rely but which was ultimately not read into evidence or referred to during the trial. If any material extracted within these Reasons refers to ‘Ms Solghi’ not in reference to the Mother I will clarify the reference as being to Ms E.
The Mother relied upon the two family reports, her case outline filed 5 May 2022, her affidavit and amended application both filed 4 May 2022, and her notice of risk filed 1 May 2018. Ms Murphy, Counsel for the Mother, also relied upon exhibits M1,[3] M2,[4] M3,[5] and M4,[6] as tendered throughout the trial. The Father relied upon his case outline filed 5 May 2022, his response filed 5 June 2018, and his affidavits filed 27 August 2020 and 2 May 2022. The case outline also refers to an affidavit of Ms E filed 2 May 2022 but, as stated above, this was not in fact relied upon or received by the Court in evidence. Mr Russo, Counsel for the Father, did not tender any documents during the trial. The ICL also relied upon both family reports and Mr Blank, Counsel for the ICL, tendered the ICL’s tender bundle in its entirety, which became exhibit I1.[7]
[3] M1 (page from Mother’s patient medical history dated 10 May 2017) (‘M1’).
[4] M2 (page from Mother’s patient health record dated 27 October 2017) (‘M2’).
[5] M3 (police report in relation to alleged assault on X by Ms G , dated 10 September 2018) (‘M3’).
[6] M4 (police report in relation to the Father’s alleged verbal abuse of Y, dated 5 April 2020) (‘M4’).
[7] I1 (ICL’s tender bundle, including documents from New South Wales Police, H Contact Service, Family and Community Services, and Suburb J Hospital) (‘I1’).
At trial, the Mother gave evidence in Language K with assistance of an interpreter. She answered questions under cross-examination bluntly, making it abundantly clear that the Father adds little value to the children’s lives. The Father should not, in her view, know where the children live or where they go to school. She also expressed her belief that the Father should not be informed when either of the children are ill or injured, nor receive information about their education, but upon final submissions the Mother agreed to those terms. The Mother said that it is not a good thing for the children to have a relationship with the Father — she sought to eradicate him from their lives. In this respect the children appear to hold a level of authority over the Mother since, throughout her evidence, she emphasised that the children’s views should always be followed. She said that the children do not wish to see the Father and, having made their own decision, the children do not listen to her much and ‘have their own feelings’. She further said that she did not have a personal grudge against the Father and that, ultimately, it is purely the children’s decision and not her own. The Mother confirmed that, beyond telling the children that the time was ordered by a court, she did not say anything to encourage the children to spend time with the Father. Mr Russo in particular challenged the Mother regarding her allegations of family violence. The Mother was not swayed from her position and maintained that the Father still poses a ‘threat’ to the children and herself. In general she did not attempt to hide her disdain of the Father and, at least with respect to disputed matters, this leads me to treat her evidence somewhat cautiously. I am concerned that her negative view of the Father has influenced the children’s view of him, although Ms D’s evidence indicates that this influence is minimal. In any event I have little confidence in the Mother’s ability to ever actively promote the children’s relationship with the Father.
The Father’s evidence at trial was, in many ways, a mixed bag. Under cross-examination he presented as somewhat defeated and, pleading for the Court to understand his position, gave indirect answers at times. Aspects of his evidence, particularly in response to allegations of family violence, were unconvincing and inconsistent with more objective evidence. He took no responsibility for exposing the children to parental conflict and showed a lack of insight as to the impact of his own behaviour upon the children. While he referred to his love for his children and his relocation to Australia in 2013 to provide them with a better life, without such insight it will be difficult for him to repair those relationships. He appeared reluctant to speak positively about the Mother, but ultimately said that she is a good mother and provides for the children’s needs. I appreciate the Father’s feelings of desperation — he has spent no time with either of the children in approximately two years, and now faces an application to prevent him having any in-person time with them. His feelings are likely to have hindered his rational consideration of how children of X and Y’s ages, with set views, can successfully resume arrangements in which they spend regular time with him. His evidence was that, if his proposal for time succeeds, the children will immediately return to his regular care easily and naturally. He did, however, acknowledge that there may be an ‘odd’ period of time (anywhere between a few hours and the first couple of visits) in which the children adjust to the new arrangements. He could not countenance an arrangement in which the children’s time with him, commencing as supervised time, slowly builds and transitions to regular unsupervised time. His perspective was, in my view, unrealistically optimistic. The short affidavit provided by Ms E — who was not cross-examined and did not participate in the second family report interview — does not assuage my concerns in this respect and, in any event, will not be afforded any weight.
Ms D, having provided the family reports of September 2019 and March 2022, was cross-examined by Ms Murphy, Mr Russo, and Mr Blank. Her reports are an instrumental account of the children’s views and, with approximately two and a half years between the reports, also inform the Court of this family’s development over the course of these proceedings. Ms D maintained under cross-examination that, consistent with her March 2022 recommendations, there should not be an order that the children spend regular time with the Father. With respect to any available alternatives to the proposals of the Mother and the ICL, Ms D confirmed that there may be some long-term consequences if the children do not have a relationship with the Father. Worse still, given the danger that the children may feel abandoned, those consequences could flow from their feelings of abandonment. Ms D listed the possible consequences for the children including depression, relationship issues, substance abuse issues, and potential resentment towards the Mother for not promoting their relationship with the Father. Notwithstanding these concerns, and given the children’s entrenched views and weariness of parental conflict, Ms D made clear that forcing the children to spend time with the Father was also has associated risks. The children’s current problems would be compounded if they were yet again exposed to parental conflict and, as alleged by the Mother and denied by the Father, family violence. Ms D agreed that, if time with the Father was ordered, there should be a slow and sustainable build of time supported by counselling. Her ultimate view, however, is that no time should be ordered. She also expressed clearly that the children and the Father should be given an avenue through which they can communicate via cards, letters, and presents. This way the children may reconnect with the Father if they choose to do so in the future. Ms D’s evidence, under the pressure of cross-examination, maintained a logical and convincing position. Further, she gave evidence at trial consistently with her thorough, detailed, and well-considered reports. As a result I give Ms D’s evidence significant weight and shall, throughout these Reasons, refer to her reports in detail.
Having given a preliminary view of the evidence and issues, I shall now set out a chronology of the parents’ relationship, the children’s lives, and the procedural history of this matter.
Facts
The Mother and Father married in 2008 in City L, Region K. They first met on their wedding day. X was born in 2009 and Y was born in 2010. The parents and the children lived with the Father’s parents while they resided in India.
In 2013 the Father immigrated to Australia on a 457 sponsored visa. He continues to work as a transport worker. Between 2013 and 2016 the Mother and the children remained in Region K with the Father’s parents. The Father seemingly sent part of his income to his family back in India, with the Mother taking up the primary caretaking responsibility for that three-year period. The children were four and three years of age in 2013, and were separated from the Father for three years.
The Mother and the children arrived in Australia in 2016, as dependents of the Father’s 457 visa. This was, according to the Father, a joint decision between the parents. The Mother instead says that the Father ‘decided that the children and [her] would join him in Australia’, although she confirmed that she was happy to relocate to Australia at this time, and learned some English upon her arrival.[8] The parents and the children lived together in a flat in Suburb J from 2016 until final separation in late October 2017. The marriage subsisted in Australia for 17 months. The Mother alleges that, from the outset in 2016, the Father exhibited controlling behaviour — prohibiting her from socialising, running errands, handling finances, or making financial choices. She says that he became angry when she purchased household items without his permission. The Father denies that he controlled or coerced the Mother in any way alleged, and said that the Mother had ‘lots of friends’ and ‘went out lots of times’. He did, however, agree that the Mother did not speak English, own a car, or have her driver’s licence at this time. He maintained that the Mother was free to make financial decisions, had her own bank card, and did not have to get his permission to purchase groceries or other similar household items. In his affidavit he says that he was mindful of the culture shock and encouraged the Mother to undertake Tafe courses and ‘go out and do things on her own so she could get confident’.[9] Ms Murphy, for the Mother, urged me to consider the Mother’s circumstances at this time — she joined the Father after three years of living separately, as a dependent on his visa, with limited English and no independent source of income. By comparison, Ms Murphy submitted, the Father’s English skills, paid employment, and familiarity with life in Australia made the Mother socially and financially vulnerable.
[8] Affidavit, Ms Solghi, 4 May 2022 (‘Mother’s affidavit’) [36], noting also that the Mother still requires an interpreter.
[9] Affidavit, Mr Danwar, 2 May 2022 (‘Father’s 2022 affidavit’) [12].
It appears from the Mother’s affidavit material that, from the outset of their residence in Australia, the Father allegedly created a hostile home environment:
A regular evening occurrence would involve [Mr Danwar] coming home from work and trying to do homework with the children. When he would do this, he would continually belittle them, compare them to other children, threaten to beat them up and yell at the children and call [Y] '[…]' (little bitch) and '…' (whore) and would call [X] "[…]' (sister-fucker); '[…]' (dog). I did not correct [Mr Danwar] about the way he used to speak to the children for fear of how he would react with me. The children would go quiet when [Mr Danwar] spoke to them this way.
I believe the children were scared of [Mr Danwar] because before he arrived home in the evening, the children would watch TV and play with one another. When the children could hear [Mr Danwar] arriving home, they would become quiet and sit down in the lounge room.[10]
The Father denies that the children were scared of him prior to final separation. He says that, while the Mother was the primary carer, he had a good relationship with them and was actively involved in their lives. He says he did all he could to assist with the children, played with them before and after work, and helped them with reading and other activities.[11]
[10] Mother’s affidavit (n 8) [76]–[77].
[11] Affidavit, Mr Danwar, 27 August 2020 (‘Father’s 2020 affidavit’) [28].
The Mother also alleges that, from approximately December 2016 onwards, the Father began to physically and verbally abuse her. She says that on 30 December 2016 she and the Father argued about her getting a job and, in opposition to the idea, the Father said words to the effect of ‘you go out and watch me break your legs’. The Father then allegedly threw items at the Mother, including shoes, a washing tub which hit her in the head, and another item which hit her in her right eye, causing her ‘immediate pain and inflammation’.[12] The Mother is unsure of whether the children heard the incident from their bedrooms, and said that her mother-in-law encouraged the Father to continue the assault. The following day she and the Father attended the M Medical Centre on 31 December 2016 and, since the Father acted as her interpreter, she seemingly worried that he did not accurately convey the nature of her injury. She said the following of the attendance:
… I do not speak English well at all, though [Mr Danwar] does. [Mr Danwar] was speaking to the doctor in English and I could not understand what he was saying. I am worried by what he may have told the doctor about the injury I suffered. I was prescribed eye drops for the inflammation and pain. The doctor did not say anything directly to me and I did not understand what was being said. At that time, I didn’t feel I could speak up, as I feared when I returned home he could harm me more and my English was very poor.[13]
[12] Mother’s affidavit (n 8) [44].
[13] Ibid [45].
The Father denies the Mother’s allegations set out above. In his affidavit he recalls that the Mother slipped in the bathroom and hit her head, and that he drove her to the M Medical Centre. He denies speaking to any doctor in English, and says that there was one Region K or Region Z-speaking doctor there to whom the Mother spoke directly, although he could not remember the doctor’s name.[14] Ms Murphy referred to the incidents of 30–31 December 2016 in final submissions and, in particular, to the Father’s inconsistent evidence. The Father said under cross-examination that he ‘could not remember’ the events surrounding the allegation at all, including the alleged assault, the threat to break her legs, or his alleged misrepresentation of her injury to medical practitioners. He said that he would have accompanied the Mother to medical practices at this time because she did not drive, although he did not recall this specific attendance. Ms Murphy submitted that one would reasonably expect the Father to remember details of these events, having recalled his account in his affidavit of 27 August 2020. His failure to remember was, in her submission, suspicious. Further, with respect to the hospital staff, the Father said under cross-examination that ‘70%’ of the employees at the practice were of Indian background. It is unclear whether this equates to the four to five Region K or Region Z-speaking doctors purportedly practicing out of the M Medical Centre mentioned in his affidavit. The Mother’s allegation that the Father misrepresented her injury raises a somewhat unusual claim of family violence, which will be addressed under s 60CC(2)(b) commencing at paragraph 95 of these Reasons. She also raises that, from around December 2016 onwards, the Father would find reasons to argue with her about housework, and alleges that towards the end of the marriage this would occur most days of the week.[15] The Father denied under cross-examination that he abused the Mother about housework either around December 2016 or any later time.
[14] Father’s 2020 affidavit (n 11) [32].
[15] Mother’s affidavit (n 8) [46].
On 28 April 2017 the Father, Mother, and children appear to have attained permanent residency status. The Mother alleges that the Father lied — telling her that her permanent residency approval had not ‘come through’ — in an effort to control her. The Father, on the other hand, says that the Mother was with him when they were informed of their permanent residency being granted and at the ceremony, and denied gatekeeping this information.[16] He says that the Mother knew of the news at the same time as him, but did not clarify the language in which the news was conveyed to them, given his earlier evidence that the Mother had little to no English comprehension upon her arrival to Australia. In those circumstances Mr Blank for the ICL specifically submitted that, even if the Mother did attend the ceremony and did receive the news together with the Father, it is still conceivable that the Mother did not appreciate the actual nature of her immigration status. Therefore, Mr Blank submitted, the Father could still have coerced the Mother using her immigration status as leverage. Again, this family violence allegation shall be addressed under s 60CC(2)(b). The Mother also alleges that, shortly after permanent residency was granted, the Father become angry and slapped the children on their faces with his palm up to twice per week, causing the children to cry, and would hit or slap the Mother most days of the week.[17] She also says (without specifying when this started) that the Father treated the children differently and, ‘almost on a daily basis’ towards the end of the marriage, the Father openly and frequently favoured X over Y.[18] The Father denies that he ever treated the children inequitably.
[16] Father’s 2022 affidavit (n 9) [29], also denied under cross-examination.
[17] Mother’s affidavit (n 8) [74].
[18] Ibid [75].
On 29 April 2017 the Mother alleges that another incident of physical violence took place. She alleges that the Father pushed her against a wall, pulled her hair, and hit her in the face because, in his mind, she had attempted to telephone the Father’s sister-in-law. The Mother says that she was screaming for him to stop and that, while the children were in another room, they would have heard her screams. The Mother further says that she did not contact police because she was scared, as the Father had ‘threatened that the police could not help [her] and that there was nothing [she] could do’.[19] She says that she suffered a severe headache and attended the Suburb J Imaging Centre eleven days later. She underwent a skull x-ray, after which the radiologist reported blunt trauma and haematoma with no fractures seen in the skull bones. Ms Murphy referred to exhibit M1, a patient medical history dated 10 May 2017, to corroborate the Mother’s account. Exhibit M1 does not indicate any cause of the injury shown in the x-ray.
[19] Ibid [48].
The alleged incident of 29 April 2017 also appears to have been recalled by X during the first family report interviews, and by Y during the second family report interviews:
… He said that “in the old times” [Mr Danwar] used to hit [Ms Solghi], and he pointed to his face, neck and shoulder. [X] said that [Ms Solghi] had required an x-ray because of something [Mr Danwar] had done, but gave no further details of this. He described witnessing [Y] trying to pull [Mr Danwar] away from [Ms Solghi].[20]
…
[Y] said that she wishes [Ms Solghi’s] back would stop hurting, and said that she is worried that she will be similarly injured if she spends time with [Mr Danwar]. She recounted an occasion on which [Mr Danwar] hit [Ms Solghi] and [[Y]] said that it was “lucky” that she was present or [Mr Danwar] would have hit [Ms Solghi] more.[21]
Ms Murphy referred to the children’s recollections of seemingly the same incident as ‘striking’ — the children were interviews separately, and they independently corroborate the other’s account. As such, Ms Murphy and Mr Blank both urged a finding of family violence from the evidence with respect to 29 April 2017. Under cross-examination the Father denied the physical assault, and said that he could not remember this attendance upon the medical centre. In his 2020 affidavit, however, he specifically refers to the allegation of 29 April 2017 and denies the argument, the assault, or that the children heard the incident as there was ‘nothing for them to hear’.[22] He was shown exhibit M1 at trial and denied that he caused the injury described by the radiologist.
[20] Family Report, September 2019 (n 2) [80].
[21] Family Report, March 2022 (n 2) [71].
[22] Father’s 2020 affidavit (n 11) [33].
The Father also denied the Mother’s allegations that, from 29 April 2017 onwards, he would regularly perpetrate violence against her and threaten her, including threats to the effect that he would ‘break [her] legs’ and that he would ‘cancel [her] visa and send [her] back to India’.[23] The Mother also alleges that her brother-in-law telephoned her in May 2017, called her a ‘fucking bitch, idiot’, threatened to kill her, and used derogatory language. She says that she told the Father about this, who did not take her seriously.[24] The Father also denied that he ever witnessed his brother threaten to kill the Mother or call her names. The Father has only one brother and one sister, both of whom live in Australia with their partners and children.
[23] Mother’s affidavit (n 8) [50].
[24] Ibid [51].
The Mother alleges a further incident of violence on 23 September 2017. She says that the Father punched her in the face, while the children were present, on their way to the AG temple. The punch allegedly caused the Mother’s lip to split, of which the Mother took a photograph that day at 7:50pm.[25] She says that, after the incident she was ‘too scared to contact police … for fear of what [the Father] may do to [her] if [she] did so’. The Father was shown the photograph during cross-examination and denied that he punched the Mother or otherwise caused the injury therein. He did, however, agree that they were in the car on the way to the temple in Suburb N. He said that he could not see the injury clearly in the photograph, that she may have injured herself. Ms Murphy referred to the Father’s suggestion of the injury being self-inflicted as ‘extraordinary’. Further — and, in Ms Murphy’s submission, curiously — the Father said he could not recall the Mother having a split lip on or about 23 September 2017 and that, if she was hurt, he had ‘no idea’ how this occurred. In his 2020 affidavit, however, the Father says that he was ‘unaware when she split her lip’ and that, having seen the photographs annexed to her previous affidavits, he denied causing those injuries.[26] At trial, the Father said he could not recall the injury at all. Ms Murphy questioned the Father about his attentiveness as a husband to which the Father responded that he paid ‘100%’ attention to her and provided for her welfare. Given this evidence Ms Murphy and Mr Blank submitted that I should find that family violence occurred on 23 September 2017. Ms Murphy submitted that none of the Mother’s evidence suggests she would go to such lengths at that time to incriminate the Father and that her alleged propensity to make false reports has no basis for belief.
[25] Ibid [52], annex F. The Mother did not indicate the time of day at which the alleged assault took place, and says only that the photograph was taken ‘after this incident’.
[26] Father’s 2020 affidavit (n 11) [33]. Emphasis added.
The next alleged incident of family violence occurred on 24 October 2017 and, over the following days, the situation developed and culminated in the Mother and the Father separating on a final basis. The Mother says that she, the Father, and the children were at home on 24 October 2017, and that in the course of a verbal argument the Father made the following threat:
I will smash your legs if you tell anyone about this. I will send you back to India and get your visa cancelled. I can do whatever I want.
The Father denies making any aspect of this threat to the Mother. The Mother says that she then threatened to call police and, upon picking up the ringing phone, the Father allegedly pushed her on her right shoulder and slapped her face with an open palm. She says she then ran out of their home with the Father pursuing her and, while attempting to hide, called the temple in Suburb N because she could not speak to emergency services in English. The Father denies preventing her from picking up the phone, hitting her, or pursuing her out of the house. The temple called the police for her and the Mother says that, when they arrived, she tried to answer their questions but was ‘very scared’.[27] Ms Murphy specifically referred to the contemporaneous accounts from police attendances and J Hospital records. The first police record of the period between 24 and 31 October 2017 is extracted below:
[Date/time created: 25/10/2017, 02:49]
The VIC and the POI resides with their two young children at … About 7:00pm on the 24th of October 2017 the VIC has contacted her local church counsellor and stated that she has been involved in a[n] incident with her husband and mentioned that she had been assaulted. As a result of being informed of this the VIC’s church counsellor has contacted Police. Police have arrived at the location where they have been met by the VIC. In speaking with the VIC, Police have noticed that English was not her first language and therefore spoke with her via the services of a telephone interpreter. Police were able to ascertain from the VIC via the interpreter that two parties were involved in a verbal argument earlier in the night regarding the POI controlling the VIC. The VIC has then mentioned that the POI had previously assaulted her however did not supply any further information regarding this when pressed by police. Once Police had finished speaking with the VIC they have spoken with the POI. The POI has agreed that an argument took place between the two parties however claimed that the VIC was the instigator. The POI claimed that the VIC became angry as he was eating meat, which is against their religion. Police have then spoke[n] to both parties children who have stated that no assault incident occurred between the POI and the VIC. The children confirmed that their parents were involved in a verbal argument however stated that was all. Police have not observed any injuries on either party and not been supplied any further information to indicate such.[28]
This is, on the evidence before me, the first time the Mother discloses actual physical violence allegations to the police. Further, the Mother discloses that this was not the first incident of violence, evidencing her account of the high degree of dispute between the parents. The children do not report witnessing any physical violence, but they confirmed that their parents were engaged in a verbal argument.
[27] Mother’s affidavit (n 8) [54]–[56].
[28] I1 (n 7) 21. Emphasis added.
The following day — 25 October 2017 — the Father allegedly pressured the Mother to retract her statements to police. She says she did revoke those statements, and that the Father said in effect that he would divorce her, and that he did not wish to live with her. The Father denies pressuring the Mother to retract the statement, nor did he say that he would divorce her or that he did not wish to live with her. He said that he did not speak to her at all and was upset about her complaint to police ‘only because she had lied to them’. In his account he was, at this time, ‘deeply concerned to preserve [their] relationship’, although he concluded prior to separation that he could not continue living with the Mother because of her ‘erratic behaviour’.[29] On 26 October 2017 the Mother attended the police station, resulting in the following record:
[Date/time created: 26/10/2017, 20:03]
… Police attended the location 2 days prior [24 October 2017] with a similar CAD message. Upon that interaction the informant disclosed no assaults or threats to police … The informant brought up again previous history of historical assaults however was unable to provide police with times, dates and details. This information was stated to police two days prior. Police asked the informant what has occurred in the past two days. The informant stated that she has not been assaulted or threatened since last speaking with police. The informant stated the POI has taken the children’s passports and refused to return them. The informant still has access to her own passport … Police also spoke with the children who were also at the location, in a separate room. The children stated that they have not seen mum and dad fight physically. One child stated they have argued and yelled in the past. Both children deny ever being hit by either the informant or the POI … The POI completely denies any allegation of assault or threats made towards the informant. The POI stated that the informant is suffering from a mental condition and it’s not the first time she has made false allegations. The POI is not in the process of speaking with family law court in order for the pair to separate. The POI stated he would be staying at his brother property until the issues are finalised. The POI stated that he has custody of his children’s passports so that the informant cannot flee the country with the children.[30]
…
[29] Father’s 2020 affidavit (n 11) [34]–[35].
[30] I1 (n 7) 20. Emphasis added.
Then, on 27 October 2017, the Father took the children’s passports from their home, and took the children out of school without the Mother’s consent. She alleges that the Father came home, told her that he was leaving and taking the children with him, and that she did not want to argue with him because she was scared. With respect to the passports, the Father explained that he was scared that the Mother would take the children back to India permanently. The ICL now holds the children’s passports and, while the Mother alleges in her affidavit that he took the children’s passports and her own birth certificate, the children’s passports was the main focus of the documents allegedly taken by the Father.
The Father agreed that on 27 October 2017 he went to the school, took the children, and told a teacher words to the effect that the Mother ‘had a mental problem’. He further agreed that this resulted in the Mother’s attendance at the hospital. The Father could not recall the exact words used, but the Mother alleges that he told the school that she was insane and had tried to commit suicide. So distressed was the Mother upon attending the school that, with the children gone and in light of the Father’s statements about her mental health, the school sent her to the hospital. Upon attending the hospital, the Mother underwent an assessment and disclosed treating health professionals that she had been abused by the Father. Parts of the clinical notes from that date, as well as exhibit M2, are extracted below:
38 yo lady from Indian background, living with 2 kids aged 7 and 8 and husband in rental property, … called by school with behaviour disturbances
Patient was interview[ed] in her native language as author speaks the same
Patient cant [speak] English need interpreter in [REGION K] language
She reported she was upset because her husband picked the kids from school without informing her. Reports domestic violence and [marital] problem since 2013. Husband threaten to give divorce many time. Last Tuesday husband came home from work ([transport worker]) and start shouting at her, later punched her and slap her. She was upset she went outside and ask for help from community centre ([[O Centre]]) who called the police. She is unsure whether there is any AVO in place against her husband. Reports DV social worker contact her and provided support, she also applied for FVAG in Centrelink today.
Further reports husband left home yesterday and start living with his brother in [Suburb P].
She is calm and reactive during interview, good eye contact, mood reports fine, denies anhedonia, lack of energy, denies hopelessness. Sleep disturb b/c DV and argument with husband but appetite fine.
Reports her plan is to take her kids from husband and went back to India. Reports she would never harm herself as she want to raise her children and she loved them a lot. …
Currently she don’t have any concerned for her kids safety, she reports he is not abusive towards kids, however she would like to have kids with her as husband don’t know what to feed them and how to look after them. Reports school contacted the husband and issued a letter to him to bring kids in school on Monday and if he won’t turn up they will informed police.
…
Reports over the weekend she is going to stay with her friend [Mr Q]…[31]
…
[31] Ibid 95. Emphasis added.
Progress Note
-38F alleged DV …
-reports that her husband has been physically abusing her
-otherwise well, nil recent fevers/dysuria/flu-like illness
-reports intermittent midline headache after being hit in the head by husband twice within the last 6 months
-Denies thoughts of self-harm or others, only protective measures
-[denies] sig medical background/regular meds[32]
[32] M2 (n 4). Emphasis added.
The extract above raises three points. Firstly, if the Mother had at that time considered relocating back to India, the Father’s fear motivating him to take the passports may well have been grounded in reality. Secondly, while not explicitly inconsistent with her earlier evidence, the Mother’s contemporaneous representation that the Father ‘is not abusive towards [the] kids’ appears inconsistent with the children being scared of the Father whenever he was at home, and the alleged verbal abuse of the children. It is possible that the registered nurse in these notes refers to physical abuse alone, although this was not clarified at trial. Finally, the medical intern notes the Mother’s account of being hit in the head twice over the past six months — possibly referring to the incidents of 29 April 2017 and 23 September 2017 — although there is no diagnosis of the Mother’s midline headaches as being caused by impacts to her head. The Mother also told hospital staff that the Father had previously broken her jaw and teeth, which I cannot point to any specific incident alleged in these proceedings, and had hit her head into walls multiple times.[33] The Father, on the other hand, says that he left the family home on 27 October 2017 and stayed at his brother’s house because he was scared of more false allegations being raised against him. The marriage was, in his mind, over by 25 October 2017. He was shown the contents of exhibit M2 during cross-examination and denied the Mother’s allegations as disclosed to hospital staff. The Mother stayed with a friend, Mr Q, but says that Mr Q was threatened by the Father and his brother and withdrew her support for the Mother. She stayed with Mr Q for two nights and then returned to the family home alone, at which a welfare check was conducted on 28 October 2017.
[33] I1 (n 7) 101, noting that the event caused the police and the Crisis Support Agency to become involved, leading to an Apprehended Domestic Violence Order (‘ADVO’) issuing on 1 November 2017.
The Mother again attended the children’s school on 30 October 2017 and returned home with Y — X stayed with the Father. She and Y attended the police station at the police’s request to provide further statements on 30 and 31 October:
[Date/time created: 31/10/2017, 03:45]
About 18:00 hours on Monday the 30th of October 2017 the victim [Ms Solghi] has attended [Suburb J] Police station where a statement was obtained in relation to an incident that occurred on Tuesday the 24th of [October] 2017. The victim advised that About 18:00 hours her husband [Mr Danwar] has returned home when he started to abuse the victim. [Mr Danwar] has [yelled] “I’ll smash your legs if you tell anyone about this’ and ‘I’ll send you back to India and get your visa cancelled’. The victim has become scared and advised [Mr Danwar] she would call police. The victim has picked up the phone when [Mr Danwar] has pushed the victim to the shoulder region and slapped her across the face. The victim has managed to run away from [Mr Danwar] who had chased her outside the premises before the victim managed to call police through a [[Region K]] Temple committee member due to the victim speaking little English. Police have attended on the night of this incident however due to the language barrier and being scared the victim did not disclose the full nature of the incident. The victim claims to have fears for her safety. The victim made mention of other assaults claiming [Mr Danwar] had split her lip when he hit her however could not go into specifics in terms of dates, times or where these incidents took place. …
…
[Date/time created: 31/10/2017, 16:31]
… About 12:15pm on Tuesday the 31st October 2017, the VIC [Ms Solghi] and a case worker form the ICSA (Indian sub continent crisis & support agency) who was also acting as the VIC’s interpreter … attended [Suburb J] police station to enquire about emergency accommodation for the VIC due to fearing for her safety at her current address. It was after hearing several versions from the VIC in relation to unreported DV incidents, involving the VIC sustaining serious injuries and from reading past events, that police believed that the VIC would benefit from being placed into alternate accommodation for her safety and the safety of her children. Police gave the VIC advice and guidance, contacting the DV hotline … to arrange alternative emergency accommodation. It was whilst police were speaking with the VIC via interpreter, that the VIC received several phone calls, that was later explained to be various family members who were advising the VIC to ‘Withdraw the complaint’, ‘don’t charge your husband’ and ‘Deal with this within the family, don’t do this through police’. These calls made from various family members whilst talking to police …[34]
The ICSA case worker to which the report refers is Ms G. Ms G continued to supervise the children until 28 September 2018 and, after that point, appears to have continued engaging with the Mother. The police returned both children to the Mother’s care and, on 31 October 2017, the Mother and the children commenced living in a refuge. They remained at the refuge until 21 December 2017 and thereafter obtained a rental property. The Mother agrees that, from 31 October until supervised visits commenced on 11 June 2018, the children did not see the Father save for on one occasion (supervised by Ms G). Ms Blank submitted that, while this may well have disrupted the children’s relationship with the Father, the family violence (if found) made the Mother’s life ‘unbearable’, as shown by her relocation to the refuge. This was, in Mr Blank’s submission, not an accommodation option for which one would ‘readily volunteer’, indicating that she had no choice but to flee. Ms Murphy also pointed to the Mother’s recourse to a refuge, and the involvement of Ms G, as indicative of the Mother’s vulnerability to the Father. The Father, however, does not accept that the Mother went to the refuge with the children because she was scared. He says that her evidence of her fear at this time, alongside most of her evidence about 24–31 October, is false. He referred to the statement of Constable Mr R, dated 20 January 2018 with respect to their attendance on 26 October 2017, to corroborate his position:
I then spoke with [the] children located in a separate room, who disclosed no physical assaults at home or any issues besides on-going arguments.[35]
The Father was charged with offences of stalking/intimidation and common assault, which were dismissed on 19 April 2018. I foreshadow at this point that, while summary or criminal offences may not be proved beyond a reasonable doubt, it remains possible for this Court to make a positive finding of family violence on the balance of probabilities.
[34] Ibid 19–20.
[35] Father’s 2020 affidavit (n 11) annex C.
Police issued an interim Apprehended Violence Order (AVO) on 1 November 2017 against the Father. That order provided for him to spend supervised time with the children each Thursday from 11am until 3pm. Ms G supervised that time for the one occasion it took place. A final AVO issued on 6 May 2018, effective for one year, protecting the Mother and the children.[36] It is unclear when the children saw their Father on the one occasion between final separation and 11 June 2018.
[36] I1 (n 7) 16.
By March 2018 X purportedly told the Mother about things his uncle and the Father had told him, and intermittently behaved aggressively. She expressed the view that, since X had witnessed the Father’s violence towards her, he copied the Father’s behaviour. The Mother’s account of those disclosures at that time are extracted below:
On Wednesday 7 March 2018 during a conversation I had with [X] because he was fighting with [Y], I asked him 'why are you behaving like this?' [X] told me words to the effect of 'It's not my fault. Why are you blaming me? I'm only doing what my uncle told me to do’.
[X] went on to say words to the effect of; 'Uncle told me that when I am on the escalator, I can fall and kill myself When I am at the park, I can fall off and something will happen to me' and 'I can hurt myself and mum will get into trouble'. [X] presented with risk-taking behaviour including turning the gas on in the kitchen and sitting on the stove top and placing his feet against the heater or kick it. The incident was reported to the NSW police. [X] stated his father requested for him to do these things to be used as evidence in Court and stated "if you get hurt we will get it treated."
On 8 March 2018 [X] told me words to the effect of, 'Dad said to give your mother a hard time and if she says anything, I can call the police. Dad said do not tell the truth and I will buy you anything you want'.
…
During the first week of [Mr Danwar] and my separation, [X] said words to the effect of 'daddy told me that if you do not let me see him, then I should threaten to kill myself'.
[X] did as a result of this threaten multiple times to kill himself if I did not take him to spend time with [Mr Danwar] saying 'I will kill myself if I cannot see dad'.[37]
The Father agrees that the children have spent time with him and their paternal uncle, but denied ever saying or witnessing any suggestion that either of the children should attempt to hurt or kill themselves. The Mother also alleges stalking and threatening behaviour by the Father post-separation in various ways.[38] The Father denies that he ever acted in a way that could be described as intimidating, abusive or violent, either before or after separation.[39]
[37] Mother’s affidavit (n 8) [79]–[85]. Emphasis added.
[38] Ibid [108]–[162].
[39] Father’s 2020 affidavit (n 11) [23]–[40]; Father’s 2022 affidavit (n 9) [35]–[41].
The Mother alleges another instance of threatening behaviour in April 2018. The Father allegedly uploaded three photographs to his WhatsApp profile including text, written in Region K, translating to the following statements in English:
‘won’t kill you so quickly, so don’t worry just yet bitch’
‘the old horse has lost its use’
‘by the grace of the almighty, I have won the case’
The Father was shown copies of these photographs under cross-examination.[40] He said that he could not decipher those words and therefore would not concede that they translated to the phrases alleged by the Mother. I then asked the interpreter assisting the Mother to re-enter the witness box and interpret the text in those photographs. The interpreter confirmed that the first two lines stated, in effect: ‘won’t die or kill you that quick — don’t worry’ or ‘don’t get into tension’, ‘you mad girl’. The balance of the photographs could not be deciphered by the interpreter, although one aspect had something to do with ‘kids’. The Father re-entered the witness box and, after hearing the interpreter’s evidence, maintained his denial that he had written those words, made the images, or posted them to his WhatsApp profile.
[40] Mother’s affidavit (n 8) annex G.
The Mother commenced proceedings on 18 May 2018 and, on 5 June 2018, orders for supervised contact were made. That time was to occur weekly on Mondays between 4:00pm and 6:00pm, and generally took place at the S Shopping Centre in Suburb J. Supervision notes from ‘H Contact Service’ are included in exhibit I1, from which I will extract parts throughout these Reasons.
The first supervised visit between the children and the Father took place on 11 June 2018. Between July and August 2018 the Mother remained fearful also of the Father’s seemingly insistent idea that the children, or at least X, would be able to live with him after this litigation ends. Ms Murphy referred to instances in which the Father had stated, or eluded to, this possibility:
[23 July 2018]
At 4:39pm, [X] told the Father in [K Language], ‘If you don’t get married, I will live with you,’ but translated it to English after the Father asked him to tell me.[41]
[30 July 2018]
We walked into [Store T]. The children played the keyboard and the Father told them, ‘When you come to my house I will buy for you definitely’.[42]
[13 August 2018]
... Whilst [Y] was playing on the phone, the Father whispered to [X] that as soon as the court case is finished, [X] can live with him and he could help him with his homework and take him to play sport. …[43]
[41] I1 (n 7) 40.
[42] Ibid 42.
[43] Ibid 44.
The Father maintained under cross-examination that he did not promise to purchase any items as rewards for either child, and indeed could not recall the specific visit to Store T on 30 July. He confirmed, however, that on 30 July 2018 he purchased a game console (either a PlayStation or Xbox) for X because all of his friends had them, and purchased Y some Nike clothing. The gaming console was, in the Father’s view, ‘not expensive’ at $400.00 and therefore could not be seen as an attempt to bribe or gain favour with the children.[44]
[44] Mother’s affidavit (n 8) [113]. The Mother alleges that the Father bought X an expensive gift at the contact visit on 6 August 2018. Neither the Father nor the ICL’s material include a report from H Contact Service for 6 August 2018. It is possible that the Mother refers to the large purchase made on the previous occasion of time, 30 July 2018, although this was not clarified at trial.
Ms Murphy also raised the notes of the Father discussing the litigation with or in the presence of the children on 16 July 2018:
1.… The support worker informed that she was there to talk to me and to make sure that [Mr Danwar] was speaking English throughout the contact and to make sure that I monitored him. She also informed me of an incident that the Mother was concerned about which occurred during the first contact. She said, the Father has encouraged [X] to ‘emotionally abuse’ his Mother and in return he would buy him an iPhone. I informed her I would note this down and talk to my supervisor. I also informed her that even though the Mother did not want the Father to take phone calls, … the court orders did not stop him from doing so.
…
4.At 4:07pm, I reminded the Father and children to speak English as they had begun to speak [Region K language].
…
12.At 4:35pm, the Father began to talk about his wife saying that ‘Every single time she lied to the police.’ He then noticed his children getting agitated and said, ‘Okay, I don’t want to open the topic here, my kids don’t like it.’
The Father agreed that, on 16 July 2018, they spoke with the paternal grandparents in Region K over the telephone despite the supervisor’s reminder to speak English. He says that the children had a good relationship with their grandparents at this time and wished to speak to them, which they could only do in Region K. The Mother raised concerns as to the veracity of the supervisor’s reports, given they could not understand Region K.[45] I appreciate the Mother’s apprehension in this respect but I cannot speculate as to the content of any ‘unsupervised’ remarks or conversations. Importantly, the Father also acknowledged that he told the supervisor that the Mother lied to police, and did not deny that he said the remarks extracted above in front of the children. He said that he should not have said it in front of the children, but qualified that the Mother also teaches the children ‘bad things’ to turn them against him.
[45] Ibid [108].
On 23 July 2018 Y told the supervisor that ‘Dad is always asking for photos of Mum’. The Father denied asking the children for photographs of the Mother at any point. The report from the following visit (30 July 2018) also raises the Father’s remarks to the supervisor about Ms G:
8.At 4:30pm, the Father asked me if I had dealt with a woman called ‘[Ms G].’ He said she was some sort of social worker and was being manipulative towards the children and he was concerned about it. I said he would have to talk to [Ms U], as it was an issue beyond my control. [Y] said, ‘She is not my mother but she tells me what to do.’
As foreshadowed above the Father discussed the parenting proceedings to which the children are subject at the contact visit of 13 August 2018. This visit was also notably less affectionate than previous visits. In particular, the Father allegedly whispered something to Y causing her to have an ‘unpleasant facial expression’. The Father denies that he whispered anything to Y to make her uncomfortable or upset, although he did say that he whispered to both children that they could live with him once the court case was finished. The supervisor opened the report with the following extract, of great concern:
… The children waved goodbye to the Mother when she left. The Mother complained that [X] had been behaving badly regularly at home, calling her bad names and swearing at her. [Y] was translating everything. [X] claimed the Father instructed him to swear and behave badly towards the Mother. [Y] also whispered to me to keep an eye on her brother because he had been bad to her and the Mother.[46]
I find it extremely worrying that Y has, on this occasion and others, acted as the Mother’s interpreter, which has directly exposed Y to her parents’ disputes about herself and X. The Mother’s police report that the Father was ‘making eyes’ at her during changeover on 13 August 2018, and that members of the Father’s family were trying to influence the children, may indicate a level of heightened anxiety on this date. No further action was taken by police on this complaint.[47] The Father agreed that he lacked control over the children during the 13 August visit, since they spent considerable time fighting over his mobile phone. In my view the children’s unruliness on this occasion may have been caused, at least in part, by the conflict to which they were exposed at the initial changeover. The Father also discussed this litigation on 3 September 2018, in telling the children that he had to leave 30 minutes early for an appointment with his lawyer. He agreed that he should not have eluded to these proceedings but explained, somewhat sensibly, that the children had already witnessed reports to police by this time, and knew their parents did not get along. He further explained that he again told X that he could live with him when the court case was over in an effort to explain that, if he were to live with the Father, the Court would have to grant permission first. The Father could have obfuscated the true nature of the parents’ dispute to the children and did not do so, although he acknowledged his conduct to some extent.
[46] I1 (n 7) 44. Emphasis added.
[47] Ibid 14. The Mother reported the alleged incident on 19 September 2018.
On 10 September 2018 the Father reported X’s disclosure that Ms G slapped him across the face five times, pushed him around and swore at him. X spoke with police and confirmed the story while ‘laughing at times’. He did not exhibit any injuries. The police report of the attendance at the shopping centre gives the following account:
[Date/time created: 10/09/2018, 23:18]
The PR in this matter is the father of the alleged victim. There is currently an ADVO and charges before the court relating to DV assault committed by the PR upon his wife (the Victim’s mother). The PR and his wife have separated and the PR is permitted to see his children on supervised visits once a week for 2 hours. This time has recently been spent at [S Shopping Centre], [Suburb J]. The person named is an employee of an organisation named (Indian Continent Crisis support Agency). The ICSA’s role is to provide support to victims of domestic violence from an Indian background. The PN has been visiting the mother of the victim about 1 time per week and had have a number of telephone conversations with her regarding the domestic violence situation she was victim to. On the 10/9/18, the PR met with his children for the 2 hour supervised visitation at [S Shopping Centre]. At this time, he PR states the Vic disclosed an incident that occurred on the 4/9/18 at his home in [Suburb V] in which the PN attended his home in [Suburb V] and became angered at him for not attending school. The vic claimed the PN slapped him 5 times to his face before pushing him around and swearing at him. The PR subsequently contacted police after hearing this. Police attended [S Shopping Centre] to take the report. Police spoke to the PR and the Vic and confirmed the above information. At the time, another case worker was present, supervising the visit, however she had not been witness to the alleged assault and only knew of it from hearing the Vic explain it to his father. Police spoke to the Vic, who gave the above version. The Vic stated his mother had been present at the time, however did nothing to stop the PN from hitting him. The vic confirmed that he suffered no injuries as a result of this incident. Police obtained the PN details, including a phone number and contacted her to confirm information. The PN explained her role in providing support to the PR’s wife following the DV offences. The PN confirmed she had attended the vic’s home on the date of the incident and had spoken to the PR’s wife. The PR’s wife had explained to her that the Victim had been swearing at her during the day and had refused to attend school. The PN stated she told the Vic to shower and get ready for school, which he complied with without argument. The PN stated to police that the PR had previously made false reports about his wife and stated she was not surprised about this recent report and that it had only occurred when the PR had met with the Vic. The PR stated to police that he intended to report the matter to his solicitor as he was in the process of defending his court matter and other Family Court proceedings. The PR claimed that the PN was a friend of his wife’s and that he was unhappy with her attending the house and disciplining his son. …[48]
[48] M3 (n 5).
The Father said under cross-examination that X told him what happened, and that he believes X is telling the truth because he ‘never lies’ — except ‘when the Mother makes him lie’. The Father alleged that the Mother forced X to downplay the incident or deny it altogether. The Mother explained that X had been swearing at her and refused to attend school, but that no such assault upon X took place on 4 September 2018. She asserted that X’s disclosure to the Father on 10 September, and the subsequent police report made by the Father, contained false allegations. The account from Ms G, as recorded by police above, also refers to previous false reports made by the Father against the Mother, perhaps indicating that the Mother told her of the events of 27 October 2017. No further action was taken by police with respect to the claims against Ms G.[49] The parents did, however, consent to the order of 28 September 2018 preventing the Mother from bringing the children into contact with Ms G.
[49] I1 (n 7) 15.
On the next supervised visit (17 September 2017) the Mother claimed — again using Y to interpret — that the Father had influenced X to allege Ms G’s assault upon him. The supervisor on this occasion intervened and told the Mother it was unfair for her to use Y to interpret this information, which the Mother ignored. Later on during the 17 September visit X is reported to have told the Father that he lied about Ms G:
3. [Y] went straight for the Father's phone and this made [X] very upset. I gently reminded the Father, [X] and [Y] to speak English at all times. [X] told the Father that he lied to the police and the Father said it was okay but he must tell the police everything. The Father mentioned that [X] was under a lot of pressure from the Mother and the social worker to lie. I reminded the Father that I was only there to supervise his contact with [X] and [Y] and not get involved in their business. I said [X] should not be manipulated to lie as a favour to either himself or the Mother as [X] is only a child.
4. We walked to the food court where the Father bought [X] and [Y] Indian vegetarian meals and water. The Father and both children conversed during their meal about how school was. The Father reminded [X] not to listen to anyone, even when he was under pressure and always tell the truth. The Father cuddled both [X] and [Y] after their meal and talked about school and sports. Both [X] and [Y] argued over the Father's mobile phone. The Father reminded both children that they only have two hours to spend with each other and there should be no phones to distract them.[50]
With respect to the children’s behavioural changes at this time (particularly those of X) the Father said that any misbehaviour stemmed from the children not being permitted to see him. This is contrary to the Mother’s allegation that the children misbehaved because of the Father’s bad influence. The supervisor again reported discussions of lying on 12 November 2018. Under cross-examination the Father admitted that he did in fact say the words emphasised below, as reported by the supervisor:
3.The Father spoke to [X] that he was ve1y upset when he read the report from last week's supervised visit where [X] had lied. The Father said to [X], ‘[X], first you lied to the police and now you made up lies about me again’. The Father talked about how he had other things to do but he had prioritized his time to see them eve1y week. He also said to the children that they must respect their Mother but they must always tell the truth. Whilst the Father was talking to both children, [Y] kept telling the Father to listen to [X] and stop talking, blah, blah & blah. The Father said to [X] and [Y] that it was very important for him as their Father to discuss how upset he was with all the lies and would appreciate if the lies would stop.[51]
[50] Ibid 53. Emphasis added.
[51] Ibid 62. Emphasis added.
The final supervised visit between the children and the Father took place on 19 November 2018. On 27 November 2018 further interim orders provided for unsupervised time between the children and the Father each Sunday from 11:30am until 3:30pm. It appears as though time still frequently occurred at the S Shopping Centre, and that the parents used the W Restaurant as the changeover point. The first incident under the unsupervised arrangements allegedly occurred on 7 April 2019, with the Mother reporting to police that the Father made threats about the Mother to X and made intimidating gestures:
[Date/time created: 12/04/2019, 15:12]
… The person reporting reported to police that on 07/04/2019 during the usual Sunday child changeover, the POI was making angry face gestures towards the person reporting and was making hand gestures. The person reporting demonstrated the hand gestures which appear to be similar to signalling someone to come towards them. Police determined that this was not a breach of the AVO as it is likely the POI was signalling his children to come towards him during the change over and making an angry face gesture … would not constitute a breach of the AVO. The person reporting also told police that the POI said to the victim “I’m going to do to India and have your mum killed because nothing can happen to me there”. The POI also said “Now that ……… is gone we can do anything to mum ……… is a reference to a previous case worker for the person reporting. The threats regarding the person reporting, made by the POI could constitute intimidation depending on the victim’s version of what happened. … The victim [[X]] was coherent and showed a clear understanding of the truth and what is right and wrong. In his version the victim said that his father didn’t say he was going to kill the person reporting. Police have determined that upon the victim’s reflection of previous physical altercations between the POI and the person reporting the victim has developed concerns for the welfare of the person reporting. Consequently the victim has told the Person reporting that he thinks the POI is going to kill the person reporting. The person reporting has misinterpreted this as the POI saying he wanted to kill her, likely due to speaking very limited English, whereas in actual fact the POI has made no mention of such intentions. It is clear to police that the person reporting has suffered a great deal of Domestic violence related abuse and as such is fearful of any and all actions conducted by the POI. Police understand that the person reporting has suffered a great deal however in this situation there is no evidence to substantiate the allegations made by the person reporting against the POI. No further action due to police not detecting any offences occurring.[52]
The Mother’s claims of threatening or intimidating conduct were found to be baseless on this occasion. The reporting officer expresses the opinion that the Mother has suffered a ‘great deal’ of family violence. The officer was not called to give evidence and nothing before me demonstrates that the officer had specialised knowledge based on their training, study or experience, or that their opinion is wholly or substantially based on that knowledge.[53] I will not give this opinion any weight towards proving the existence of the fact about which the opinion was expressed.[54] This does not mean that the Mother never felt genuine fear resulting from the Father’s past behaviour towards her.
[52] Ibid 13. Emphasis added.
[53] Stephen Odgers, Uniform Evidence Law (Lawbook, 16th ed, 2021) 569–587.
[54] Family Law Act 1975 (Cth) s 69ZT(1)(c), as it applies to the Evidence Act 1995 (Cth) pt 3.3, s 76 with respect to opinion evidence, for which the exception for expert opinions (at s 79) does not apply in relation to this evidence. I note also the hearsay element of the police records (ss 59, 69) as evidence of the alleged fact that the Father had perpetrated family violence against the Mother and that she feared him as a result.
The Mother further alleges, and the Father denies, a physical assault upon X on 9 June 2019.[55] In the Mother’s account she stayed to do some shopping and, upon seeing the Father on his phone and unengaged with the children, she went up to the children and spoke to them. She says that when the Father saw this he yelled loudly to X: ‘you son of a bitch come here, otherwise I will slap you’. The Mother says she entered a shop to avoid the Father and that, from inside the shop, she saw the Father grab X’s hand and twist it, causing him to fall from the lounges upon which the children were seated. The Mother says that Y later corroborated the Father’s conduct generally, saying that ‘dad gets very angry and grabs us by the hand’. Following this alleged incident the Mother says that, on 15 June 2019, X told her that he had pain in his shoulder ever since the events of 9 June, and that he had not told her sooner because he was scared. She says she took X to a doctor, who advised her to apply anti-inflammatory gel. The Father denied the Mother’s allegations surrounding 9 June 2019 in their entirety, saying that the allegations are false and that he was not on that day, nor was he ever, angry towards the children. The Mother says that X continued to experience pain and, after another visit to a doctor on 19 June 2019, a report to the Child Protection Agency was made. The Mother’s affidavit annexes a letter from her solicitor to the Father’s solicitor regarding the alleged incidents of 18 August and 9 June 2019. This letter contains much of the same detail as her affidavit about those incidents and, in closing, remarks that the Mother and the children were distressed because of the Father’s conduct, and that the children were at that time ‘expressing a strong reluctance to attending time’ with the Father.[56]
[55] Mother’s affidavit (n 8) [114]–[118].
[56] Ibid annex I.
Ms D reported in March 2022 that both children were doing well at school, sports, and in their friendships.[182] This is despite their experiences and exposure to considerable conflict between their parents, which has no doubt significantly impacted them.
[182] Ibid [57]–[58], [65].
The children are fully aware of the Mother’s negative view of the Father. As set out in these Reasons the children’s view of the Father is, in part, influenced by the Mother. The Mother has made little attempt to shield the children from her complaints of the Father. She has on multiple occasions used Y as her interpreter to express concerns regarding the Father, imposing an adult burden onto a child’s shoulders, and showing little insight in continuing to do so when asked to stop. The Mother showed little insight as to her role in drawing the children into the parenting dispute. The children are now aligned with her and express no desire to see the Father. This may have long term negative consequences for the children.
The children are also impacted by the Father’s constant denigration of the Mother, and indeed themselves, to them or in their presence. X reported as such to Ms D in 2019:
[X] said that [Ms Solghi] does not like him and [Y] spending time with [Mr Danwar], because [Mr Danwar] keeps telling him bad things about [Ms Solghi]. He said that he wishes that [Mr Danwar] would stop saying bad things about [Ms Solghi]. [X] said he is trying to work out if [Ms Solghi] is wrong or [Mr Danwar] is wrong, and that this is very confusing. He said that he has told [Ms Solghi] about his confusion. He said that [Ms Solghi] has told him to “pick one side”, but that she has expressed that he can “pick any side” he wants to. [X] said that it would be a relief to have the Court choose what is good for him.[183]
[183] Family Report, September 2019 (n 2) [81].
I have also found that the children have witnessed and been subject to family violence from the Father. This is, to put it mildly, poor parenting. The Father also has little insight as to the impact of his behaviour upon the children, as evident in his proposal for immediate unsupervised time.
Both parents have left the children vulnerable to the long term consequences of being drawn into their dispute and exposed to parental conflict. The result is that there will be an order that the children will not spend time with the Father. The order shall not be worded so that the children may spend time with him ‘in accordance with their wishes’. Again, to place this burden of choice upon the children would be unfair, and ignores their emotional needs. Ms D stressed the need to relieve the children of ongoing exposure to parental conflict, protect them from any future harm resulting from family violence, and to respect their wishes. She further opines that
… making orders for the children to spend time according to their wishes may place excessive responsibility on the children, possibly leading to feelings of stress, guilt or confusion for the children. As such, at this time it is recommended that orders be made for the children spend no time with [Mr Danwar], relieving them of the burden of making such a decision. This recommendation is consistent with the children’s stated wishes, and it appears that the children have had the opportunity to consider the grief that losing contact with [Mr Danwar] may cause them.[184]
[184] Family Report, March 2022 (n 2) [82].
I accept Ms D’s evidence that, while the Mother’s proposed terms of order as to time would not serve the children’s emotional and intellectual needs, the Mother is capable of meeting these needs for the children. She has tangibly demonstrated a commitment to changing her behaviour to meet the children’s needs. The Father, on the other hand, continues to dodge responsibility for the children’s feelings and has shown little insight into how their emotional and intellectual needs might be met, beyond perhaps helping them with their homework.
The maturity, sex, lifestyle and background of the children and each of the children’s parents (s 60CC(3)(g))
The children are of Indian heritage. The Mother and the Father originate from India and their parents remain in India. The children are bilingual, speaking both Region K language and English.
The children, like their parents, are practicing AG Religion. The Father gave evidence that he attends the AG Temple every week, and that the Mother (and therefore the children) more strictly observes AG Religion. The Mother says that she does not pressure the children in relation to religious matters.[185] Nevertheless, the children are vegetarian and Y has complained that the Father has fed her meat when in his care, contrary to her culture.[186] That said, the Mother has said she is not concerned if the children eat meat, saying that it is their choice.[187]
[185] Family Report, September 2019 (n 2) [51].
[186] Family Report, March 2022 (n 2) [69].
[187] Family Report, September 2019 (n 2) [51].
Currently the children have no connection at all to their extended paternal family. They have never met their step-brother and, if current circumstances continue, they will likely lose all connection with their paternal relatives. Although the children are able to retain their culture, language and traditions through their Mother, their engagement with the same may be diminished if they cannot fully experience their culture with both sides of their family.
If possible, any orders I make should provide the children an opportunity to spend time with their extended family, including those living in India. It is the Father’s position that, without a Watchlist order in place, there is a risk that the Mother will take the children to visit their extended family and remain in India. He found such a prospect concerning as India is not a signatory to the Convention on the Civil Aspects of International Child Abduction. As such, if the children do visit their relatives in India, they may not return to Australia. It is the case that the children must remain ordinarily resident in Australia to maintain communication with the Father as shall be ordered. The Mother has, however, made it clear that she intends to remain in Australia with the children and that she has no desire to live in India.[188] The children are doing well at school, have friendships, and have not expressed any desire to live in India.[189]
[188] Mother’s affidavit (n 8) [176].
[189] Ibid [169]–[170].
Ms Murphy, Mr Russo, and Mr Blank agreed upon final submissions that the Mother should reapply to the Court if she desires to travel internationally with the children in the future. The Mother indicated that the main reason for wanting to travel is to visit family members in India. I do not have all the relevant information concerning those arrangements before me in this case — it has simply not been adduced in this case. I therefore agree that, while it is my task to reduce the children’s exposure to litigation, any future travel can only be decided upon more detailed evidence.
The Mother’s future re-application also serves to comply with s 65Y(1)(c)(ii) of the Act, which permits overseas travel in accordance with a court order. It would be an offence for the Mother to take the children from Australia without either a court order or with the Father’s consent in writing. That said, while s 65Y makes to do so an offence, it does not stop the Mother at the border in the same fashion as a Family Law Watchlist order.
There is, in my view, insufficient evidence for this Court to make a Family Law Watchlist order at this time. Contrary to all parties’ beliefs, no such order appears to have ever been made. The Mother did tell hospital staff in 2018 that she intended to take the children back to India. This representation was made in stressful circumstances — noting my finding of family violence on 27 October 2017 at paragraph 127 above — and the Mother has not in the intervening four years ever attempted to act upon that intention. The actual risk of the children being removed from Australia so as to justify a Watchlist order is, on the evidence, extremely minimal. The children are settled in Australia and, in any event, the Mother agreed to reapply with respect to any future travel. I shall order the return of the children’s passports to the Mother but, given my determination as to parental responsibility, I do not consider it necessary to authorise the Mother to apply for or renew the children’s travel documents.
The attitude to the children and the responsibilities of parenthood demonstrated by each of the parents (s 60CC(3)(i))
I have considerable concern as to both parents’ attitude to the children and the responsibilities of parenthood.
The Mother has provided well for the children’s day to day needs and they have developed well in her sole care and has, since 2019, improved her engagement with the children’s emotional and intellectual needs. The Father also demonstrated an ability to care for the children when in his care. There is a question, however, as to whether either parent has truly put the children’s interests above their own, particularly when it comes to shielding the children from parental conflict.
Both the Mother and the Father have deliberately used the children as sounding boards for their own resentments and grievances towards the other parent. As stated, the Mother, unashamedly, used Y as her interpreter, to describe what she deemed to be poor behaviour of the Father notwithstanding the clear objection of the supervisor.[190] The Father has committed family violence towards the Mother and the children have been exposed to the same. He has denigrated the Mother to the children, even when he was warned by Ms D that to do so may lead to him to spending no time with the children.[191]
[190] I1 (n 7) 53.
[191] Family Report, September 2019 (n 2) [103], [110].
Both parents have a very poor opinion of the other. Under cross-examination the Father, when pressed as to positive things he could say about the Mother, conceded that ‘she looks after the children’. When asked, however, if he regarded her as a ‘good mother’ he replied to the effect that he ‘could not say good or bad’, although he ultimately settled on saying that the Mother was a good parent. The Mother was very clear under cross-examination that, in her view, the Father has nothing to offer the children, and that he should effectively be eradicated from their lives. She is seeking an order that he spend no time with the children, but was also firm that he should not receive any information about the children, educational or otherwise. She confirmed that he should not be informed even if one of the children became seriously ill. This evidence left little doubt that the Mother has no ability to promote the Father in the children’s lives, although she ultimately recoiled from her firm stance in final submissions.
My concern is that the Mother is unable consider the long-term impact upon the children of not having any relationship, or even a very limited relationship, with the Father. Her inability to promote a relationship between the children and the Father will make it very difficult for them to express any enjoyment of their time with him, even if it were to be ordered. Further, neither party has the ability to communicate effectively with the other, nor to promote the other to the children. This reality impacted on the children’s relationship with the Father.
In my view, neither parent has behaved in a sufficiently child-focused manner since separation. Neither parent has shielded the children from their obvious resentment of the other. The children have been greatly impacted as a result. The children are aligned with the Mother and will spend no time with the Father. This is an unfortunate outcome, but it meets the children’s best interests at this time.
Any family violence involving the children or a member of the children’s family (s 60CC(3)(j))
I have dealt comprehensively with the question of family violence at paragraphs 106–130 of these Reasons. As I have found, the Mother and the children have been a victims of physical and verbal violence from the Father. The Father has also persistently denigrated the Mother and the children either directly to the children or in their presence, which is part of the reason why they now resist maintaining a relationship with him.
The Father lacks insight into the impact of his behaviour upon the Mother and the fact that it has, at least in part, resulted in the children holding such a negative view of him. I am concerned that he will continue with such behaviour if he spends time with the children. This was also Ms D’s perspective:
[Mr Danwar’s] ongoing denial of the occurrence of all alleged family violence, and the ongoing nature of the alleged violence raises concerns that [Mr Danwar] is likely to continue to perpetrate abusive and intimidating behaviours, towards [Ms Solghi] and towards the children. These concerns are exacerbated by allegations that the children have witnessed [Mr Danwar] yelling at his current partner. If the Court finds veracity to allegations of family violence perpetrated by [Mr Danwar], this may indicate that there is a high risk that the children will be exposed to further family violence in [Mr Danwar’s] care, and it is recommended that the children spend no time with [Mr Danwar].[192]
[192] Family Report, March 2022 (n 2) [77].
The problem is, however, that the children have already been impacted by parental conflict and their experiences in the Father’s care. These experiences have affected them so deeply that they do not want to spend time with him. I have found the children’s views in this respect should be afforded significant weight. Given the history of family violence, its impact upon the children, and its role in shaping their view of him, I am concerned that forcing the children to spend time with the Father will cause them stress and other psychological harms. Further, in line with Ms D’s evidence, I agree that any order for time may degrade the children’s relationship with the Father and the Mother. Each child said that they would not abide by any order for time and, given their ‘apparent maturity and understanding of their circumstances’, I believe the children will indeed resist any time arrangements, causing further conflict and stress.[193]
[193] Ibid [74].
I agree with Ms D that, despite the children’s exposure to family violence, the children will benefit from maintaining some limited form of connection with the Father. If he is eradicated from their lives altogether the risk of long-term impacts, such as feelings of abandonment and a loss of a part of their identity, will likely be too great.
The children should remain connected with the Father through receiving and sending cards, letters, and presents from time to time. The Mother should also send the Father certain medical and educational information about the children. This is so that, if the children choose to reconnect with the Father once they are older, it will not be the children’s task to get the Father caught up on basic information about their schooling and interests. Further, as shown in the supervised contact notes from 2018, the children’s schooling appears to be an easier topic of conversation between the children and the Father. I am satisfied that, with the appropriate safeguards in place, the children should have lines of communication open to them with the Father. They may then chose, at a time that suits them, to reach out to him.
If a family violence order applies, or has applied, to the children or a member of the children’s family – any relevant inferences that can be drawn from the order, taking into account: the nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the court in, or in proceedings for, the order; any other relevant matter (s 60CC(3)(k))
The Mother has obtained a number of provisional and final family violence orders — in the form of AVOs — since final separation.
The Mother obtained a provisional AVO on 1 November 2017 for her personal protection.[194] The Father had earlier been charged with common assault and stalking, with the Mother as the complainant, but those charged were subsequently dismissed.[195] The Father contested the final AVO but, on 7 May 2018, a final AVO issued for a period of one year for the Mother and children’s protection. The Father was prohibited by that order from assaulting, threatening, stalking, harassing, intimidating, or destroying the property of the Mother or the children, and from approaching or contacting the Mother (unless through a lawyer or as ordered by a court).[196]
[194] Mother’s affidavit (n 8) [11].
[195] Ibid [17]. The charges (from 24 October 2017) were dismissed in the [Suburb J] Local Court on 18 April 2018.
[196] Ibid [18].
As a result of the incident of 4 October 2020, about which I have made a finding of family violence at paragraph 116, the Father was charged with threatening the Mother. This incident involved the Father threatening to hit the Mother with a shoe (which both children corroborated). The Local Court dismissed that charge on 8 March 2022 but, as foreshadowed earlier in these Reasons, I am subject to a different standard of proof than criminal courts assessing prosecution cases — beyond reasonable doubt.[197] The Father denied the alleged threats of 4 October 2020 and annexed the Local Court’s dismissal of charges in support of his position.[198] On the evidence before me I am satisfied, on the balance of probabilities, that the Father threatened the Mother as alleged, constituting family violence. As a result of the Mother’s complaint to police on 4 October 2020 an interim AVO issued on that date.[199]
[197] Evidence Act 1995 (n 54) s 141(1).
[198] Father’s 2022 affidavit (n 9) [37]–[38], annex A. The reference to 2019 at [37] of the Father’s affidavit appears to be an erroneous reference to the Mother’s allegation in 2020.
[199] I1 (n 7) 3–4.
Notwithstanding that the charge was dismissed on 8 March 2022 a final AVO issued on that date protecting the Mother. That order remains effective and will expire on 7 March 2024.
I have found that the Father has committed family violence against the Mother, and that the children have been exposed to and impacted by the same. I am concerned that he has not acknowledged his poor behaviour in this regard, nor the impact of his conduct upon his children or their negative views about him. Given this lack of acknowledgement and insight I am concerned that the children are at an unacceptable risk of further exposure to family violence or denigration of the Mother if they spend unsupervised time with the Father. The evidence indicates that, while not without incident, the children’s relationships with the Father progressed well while time remained supervised. When supervision ended, however, the children complained of the Father’s violent behaviour and that he denigrated them and the Mother. That such behaviour occurred under the spotlight of this litigation concerns me greatly.
Whether it would be preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the child (s 60CC(3)(l))
The children have been subject to their parents’ litigation for four years. They have witnessed family violence and ongoing denigration of both parents. They have been denigrated themselves and have been deeply drawn into parental conflict. They have endured two family report interview processes, which have evidenced the significant impacts of their experiences, and supervised time with the Father. They have witnessed the destructive impact of these proceedings upon their parents and desperately need to be freed from their parents’ ongoing dispute about them.
It is important that the ultimate orders I make provide the best chance of the children not being subject to further parenting litigation. This general proposition is clearly relevant in this case given the length of proceedings and the children’s experiences throughout. Some limited issues in this matter may, however, need to be addressed in the future.
As foreshadowed at issue 5, the parties agree that the Mother will have to re-apply with respect to any future overseas travel plans involving the children. If sufficient evidence was before me as to this issue I would, of course, prefer to make the order at this time. Unfortunately I do not have enough evidence to determine the appropriateness of any proposed overseas travel or any ancillary arrangements. That said the Mother and the Father agree as to the future re-application and its limited scope. I am therefore not concerned about such an application being brought at a future time.
I am more concerned with the potential for contentious re-litigation with respect to time (issue 2). The Father’s proposal for time with the children, even on an extremely restricted basis, is more likely to lead to further proceedings than orders which provide for no time at all. Ms D’s expert evidence was that any time arrangements would invite ongoing stress into the children’s lives and, in forcing them to see the Father against their wishes, expose them to long-term emotional damage. Given the Mother’s limited ability to promote the children’s time with the Father, and given the children’s own views (particularly that they would not abide by any time arrangements if ordered), further proceedings are likely to be filed if time between the children and the Father is ordered.
The parties agree that, with respect to issue 3, there should be an avenue through which the children may re-establish contact with the Father if they so desire. Communication through cards, letters, and/or presents provides this avenue, provided that it is child-focused and does not denigrate the Mother. The Father has agreed to establish and maintain a post office box for that purpose. The order will require the Mother to give the children all and any letters, cards, and/or presents received from the Father through the post office box. The Mother will also be required to provide the Father with the children’s school reports (which she may redact to hide the details of their school) and keep him advised of any serious medical condition or emergency affecting either child.
A dispute may arise if the children express a desire to reconnect with the Father in the future. If that occurs, the parents will need to attempt resolution through a community mediation centre. For current purposes it is vital that, to the greatest extent possible, the children are free from further litigation. The final orders must achieve that aim.
Parental responsibility
As foreshadowed at issue 1, the Mother and the ICL seek an order for sole parental responsibility and the Father seeks an order for equal shared parental responsibility.
Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.[200] A parent does not have rights over their children — they have responsibilities to love and nurture their children and serve their children’s best interests. Upon separation parents are not, simply by virtue of their changed relationship with one another, absolved from their parental responsibilities.[201] Court orders may, however, change the nature of parental responsibility, and the obligations attaching thereto, to suit a post-separation life.[202] This Court remains bound under s 60CA to consider the children’s best interests as a paramount consideration in making any parenting order, including an order with respect to parental responsibility.
[200] Family Law Act 1975 (n 54) s 61B.
[201] Ibid s 61C.
[202] Goode & Goode [2006] FamCA 1346, [39], at which the Full Court clarifies the difference between pre-separation parental responsibility and post-separation parental responsibility as it results from an order: ‘We therefore consider it clear that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC. In the former, the parties may still be together or may be separated. There will be no court order in effect and the parties will exercise the responsibility either independently or jointly. Once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, the major decisions for the long-term care and welfare of children must be made jointly, unless the Court otherwise provides’; Family Law Act 1975 (n 54) s 65DAC.
The Act requires me to presume that, unless otherwise provided in s 61DA, it is in a child’s best interests for there to be an order for equal shared parental responsibility. Given my findings of family violence, and considering the effective AVO as of 8 March 2022, the presumption of equal shared parental responsibility does not apply.[203]
[203] Family Law Act 1975 (n 54) s 61DA(2)(b).
I am satisfied that I should not make an order for equal shared parental responsibility.[204] Not only do I have reasonable grounds to believe that family violence has taken place, but I am persuaded of that fact on the balance of probabilities. The presumption does not apply — not to be revived — and indeed I struggle to envision a situation in which it would be in the children’s best interests for such an order to be made.[205] Equal shared parental responsibility requires that persons exercising that responsibility make decisions about major long-term issues concerning each child through genuine consultation.[206] This, of course, requires effective communication.
[204] Koyroyshs & Koyroyshs [2020] FamCA 626, [84], at which His Honour Harper J states that ‘if the presumption applies, an order for equal shared parental responsibility will generally be made, thus displacing s 61C and triggering consideration of the provisions of s 65DAA’, and further stated his own view that trial judges should order equal shared parental responsibility when the presumption applies.
[205] Ibid [85].
[206] Family Law Act 1975 (n 54) s 65DAC(3).
The parents have no desire to meaningfully communicate with each other. The Father did, under cross-examination, say that he would communicate with the Mother in writing, and that he could use X’s mobile phone for this purpose. Notwithstanding the inappropriateness of using X’s phone I have significant doubts that written communication, in any form, could affect shared parental responsibility in practice. The Mother commenced the trial wishing to eradicate the Father from the children’s lives and, while she conceded this position, she remains apprehensive about having to communicate with the Father about anything, let alone about major long-term decisions.
The parents do not communicate directly and, while the terms of the current AVO do not appear to prohibit communication, I find it overwhelmingly unlikely that the Mother and the Father could sufficiently communicate to fulfil the obligations imposed by any order (equal or otherwise) for shared parental responsibility. Given the history of family violence and the parents’ very poor relationship and communication, I am satisfied that an order for sole parental responsibility, in favour of the Mother, is in the children's best interests.
The Mother will, however, be ordered to inform Father of any serious health issues impacting either child. She will also be ordered to provide the Father with the children’s school reports, assessments, NAPLAN (National Assessment Program — Literacy and Numeracy) and examination results. The Mother will be at liberty to redact any information through which the Father can identify her residential address or the children’s residential or school address. As explained above, the Father should remain informed about the children’s lives and interests so that reconnecting with him in future, if that happens, is easier for the children. It is in their best interests that the Father is aware of their progression, particularly at school.
I will order that the Mother have sole parental responsibility for the children. I am therefore not required to assess whether an equal time arrangement (or alternatively a substantial and significant time arrangement) would be in the children’s best interests and reasonably practicable.[207] I have found in my assessment pursuant to s 60CC of the Act that it is not currently in the children’s best interests to spend any time with the Father.
[207] Ibid s 65DAA.
Conclusion
It is rare for this Court to order that a parent spend no time with their children. The long term consequences for children who do not have meaningful relationships with both of their parents can be significant. Such an order also puts an end to a child’s fundamental right to be loved and cared for by both of that child’s parents and be connected with persons who are important in that child’s life. In this case, the absence of any arrangements as to time also prevents X and Y from developing a relationship with their half-brother F.
Unfortunately this is one of those rare cases in which it is in the children’s best interests to order that they spend no time with the Father. Ms D warned in 2019 that, should the Father continue to denigrate the Mother and behave poorly, the children may ultimately not wish to spend time with him. That consequence has come to pass. The children have not seen him for nearly two years and have entrenched views that they no longer desire a relationship with him. The Father lacks insight as to the impact of his behaviour upon the children and, as a result, his proposal to re-establish a relationship with them is unrealistic. This is particularly so in circumstances where the Mother struggles to promote the children’s relationships with him. Further, as mentioned throughout these Reasons and reflected in the Father’s proposal, the Father struggles to listen to the children, take their views seriously, or put their needs above his own.
As a consequence of not ordering any time between the children and the Father, I will not require the ICL to remain appointed as was sought in his proposal.
I have also found that the Father should not exercise any parental responsibility in relation to either of the children and, as such, will not be involved in major long-term decisions impacting their lives.
This outcome is profoundly sad and demonstrates the impact of children being exposed to ongoing parental conflict. Children eventually tire of having to choose between their parents and have, in this case, sought to end the ongoing conflict by siding with the Mother, with whom they are aligned. To order that the children go through a process of reconnection with the Father is to keep them imprisoned within their parents’ dispute of four years. The children deserve respite from the ongoing conflict. I will not (as far as is possible) subject them to the potential of further litigation, nor to time (or a process of building time) that would cause them significant stress. Again, I am cognisant that ordering no time with the Father also means denying the children a relationship with Ms E and F.
The children will maintain a limited connection with the Father through cards, letters, and presents, particularly for special occasions. He will also remain informed of their progress at school and of any serious health issue concerning either of the children. It is important that the children maintain such a connection with the Father to reduce feelings of abandonment and any loss to their sense of identity. Further, it will make any future reconnection (if that ever occurs) easier for the children. The suite of final orders is intended to logistically facilitate the arrangement and support the findings made in these Reasons by imposing conditions and obligations upon the communications between the children and the Father. Any orders in this respect must, in particular, account for the parents’ non-existent level of contact, the Father’s past persistent behaviour (including any future risk of the same continuing and, if so, the possible harm resulting therefrom), the children’s present reluctance to see the Father, and the Mother’s hesitancy to meaningfully promote their relationship with him.
As for the Mother’s communication with the Father, and the Father’s communication with the Mother, they shall communicate through the email addresses established for the purpose of affecting the final orders. The Mother will also be required to send the Father educational and medical information as specified above. Again, there will be conditions associated with such communication.
With respect to the final issue — international travel — it is in my view crucial that the children are given time to settle into the arrangements under the final orders. I will order that the children’s passports, birth certificates, and any other documents held by the ICL be returned to the Mother. While the children will benefit from spending time with their extended family members in India, as opined by Ms D,[208] I am cautious of the fact that India is not a signatory to the Convention on the Civil Aspects of International Child Abduction. That being the case, the Father will not be able to enforce effective exercise of his rights of access to the children.[209] There is a risk (albeit small, on the evidence) that the children may visit their relatives in India and, notwithstanding the Mother’s expressed intention to remain in Australia, not return to Australia. Once in India, around her family, the Mother may choose to stay. This would sever any hope of ongoing communication or future reconnection with the Father.
[208] Family Report, March 2022 (n 2) [79].
[209] Family Law (Child Abduction Convention) Regulations 1986 (n 93) r 23(1).
That said, I do not consider it necessary to make a Family Law Watchlist order. The parties agree that the Mother will have to reapply in future for all overseas travel to avoid breaching s 65Y of the Act. There needs to be space open to the children to communicate with the Father and, to the extent possible, heal their relationship with him. This may culminate in them reconnecting with him in future. Further, as agreed by the Mother, the children are settled in Australia and she now firmly wishes to remain resident here.
The Mother will hold the children’s passports (currently, Indian passports) and, pursuant to the order for sole parental responsibility, may alone consent for the issue of any future Australian travel documents for the children.[210] The children should hold valid passports for the purposes of school trips or other opportunities to travel overseas. There was no evidence adduced as to the requirements for the re-issue of the children’s Indian passports — importantly, whether both parents’ consent is required. As a consequence I cannot make any order authorising the Mother alone to renew the children’s passports if not issued by the Australian Government. The final orders will, however, include a notation that the Mother has to reapply for the purposes of future overseas travel with the children to avoid breaching s 65Y. If there is any issue as to the children’s passports at that time, evidence can be adduced upon that reapplication.
[210] Australian Passports Act 2005 (Cth) s 11(1)(a).
I am satisfied that the ultimate orders, set out at the commencement of these Reasons, are in X and Y’s best interests. It is unfortunate that the children must at this time have such limited contact with the Father. This is, however, a product of both parents’ actions and lack of insight. Both parents have entwined the children in their dispute and both have contributed, to one degree or another, to the children’s refusal to spend any time with the Father. Both parents have been consumed with their own interests and, throughout the trial, demonstrated that they hold the other fully responsible for the children’s circumstances. These Reasons are not, however, about the parents’ claims and counter-claims against each other. The inquiry under the Act is, as stated in Jurss & Jurss, ‘essentially a positive one designed to promote the interests of the child[ren], not to demote the claims of either parent’.[211]
[211] Jurss & Jurss (1976) FLC 90-041, 75,184.
In any event, the die appears to have been cast. The children’s current views are deeply rooted in their first-hand experiences and are, to some degree, also influenced by the Mother’s negative view of the Father. If the children are forced to see the Father at this time it is devastatingly likely to be a negative experience for them.
There is, perhaps, a chance for X or Y (or both) to manifest a relationship with the Father at some point in the future. For such reconnection to occur, the children’s views would need to significantly change and then be expressed. The orders permitting and affecting communication through cards, letters, and/or presents, and for the provision of information to the Father, seek to reduce the possible consequences of the children not having any relationship with him. These arrangements are also intended to act as a sort of ‘cooling-off period’ whether or not the children reconnect with the Father. X and Y have only a few years of their childhoods remaining — approximately four years and five and a half years respectively. Their communications with the Father are intended to preserve the ember of their previous relationship, heal feelings of abandonment, and accommodate any future wishes of either child to reignite some aspect of their connection.
In time, the children may seek the Father out — the orders accommodate, but do not require, such an outcome. Reconnection is not guaranteed and, even if it does occur at some point, the success of any future relationship depends upon the parents (particularly the Father) changing their perspectives and creating healthy environments to support those relationships. X and Y evidently held a deep love for the Father at one point, as shown in the supervised contact notes. Any future in-person relationship must, however, be grounded in a wholly new paradigm. The Father must confront the family violence he perpetrated against the Mother if he is ever to move past it, improve his behaviour, and understand a key reason why the children do not currently wish to see him. This is particularly noteworthy given the concerning allegations of the Father yelling at Ms E, as purportedly witnessed by X.[212] I did not receive evidence from Ms E on this issue and, as stated earlier, her untested affidavit evidence confirming the Father’s position does not put the issue to rest. The children cannot again be exposed to family violence and the cycle of family violence cannot continue in the Father’s current household. I urge the Father to take these Reasons on board and ensure that those close to him are never again subject to family violence at his hand. If he wishes for any future reconnection to have any chance of succeeding he must obtain and engage with assistance with respect to family violence.
[212] Family Report, March 2022 (n 2) [44].
I certify that the preceding two hundred and nine (209) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull. Associate:
Dated: 2 December 2022
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