Tarak and Khaled

FAMILY COURT OF AUSTRALIA

TARAK & KHALED

[2009] FamCA 177

FAMILY LAW – CHILDREN - Best interests
FAMILY LAW – CHILDREN - Parental responsibility - General obligations
FAMILY LAW – CHILDREN - With whom a child lives - Best interests of child
FAMILY LAW – CHILDREN - With whom a child spends time - Best interests of child

Family Law Act 1975 (Cth)

APPLICANT:

Mr Tarak

RESPONDENT:

Ms Khaled

INDEPENDENT CHILDREN’S LAWYER:

Donald Lampe

FILE NUMBER:

MLF

2827

2005

DATE DELIVERED:

11 March 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

17-20 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Mr Cantwell

SOLICITOR FOR THE RESPONDENT:

Hogg & Reid

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Hutchins

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Lampe Family Lawyers

Orders

That all previous parenting orders shall be discharged.
That the father and the mother by themselves, their servants or agents shall be restrained from removing, attempting to remove, or causing or permitting the removal or attempted removal of the children A born … July 2001, D born … August 2004, and S born … February 2006 (“the children”), or any of them, from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the names of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further order of the Court.
That as soon as practicable the Independent Children's Lawyer shall serve a sealed copy of this order upon the Proper Officer of the Australian Federal Police at Melbourne and the Marshal of the Family Court of Australia AND IT IS REQUESTED that the Australian Federal Police give force and effect to this order.
That the mother shall have sole parental responsibility for the children.
That the children shall live with the mother.
That the father by himself, his servants and agents shall be and is hereby restrained from approaching, telephoning or contacting the mother or knowingly being within 200 metres of the mother’s residence or any school, kindergarten or crèche that the children attend, save as provided in these orders.
That the father shall spend time with the children for two hours per fortnight or such other period as agreed between the parents, at J Park in K and in the event of wet or unsuitable weather for outdoors, at the library in K or such other venue agreed between the parents PROVIDED THAT the father’s time with the children shall be supervised by Mr Z or other person agreed by the parents, or failing agreement, by such person or organisation as nominated by the Independent Children's Lawyer.
That any costs associated with the time the children spend with the father shall be borne by the father.
That the father shall be at liberty at any time after 11 March 2010 to obtain a report from Dr H as to whether any changes are warranted in the father’s supervised time with the children PROVIDED THAT the father pays in advance the full fee for Dr H’s report.
That the mother shall ensure that the father is advised of:
(a)Any significant medical condition suffered by any of the children as soon as practicable;
(b)Provided copies of all school reports in respect of the children in a timely fashion; and
(c)Advised of upcoming school parent-teacher interviews.
That the father shall be permitted to attend school parent-teacher interviews, PROVIDED THAT such interviews occur when neither the mother nor any of the children are present on the school premises.
That the father shall pay to the mother’s solicitors, the mother’s costs reserved on 16 December 2008, fixed at $597, with a stay of one month.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all existing applications shall be otherwise dismissed and removed from the list of cases awaiting finalisation.
That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Tarak & Khaled is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2827 of 2005

MR TARAK

Applicant

And

MS KHALED

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Mr Tarak (“the father”) and Ms Khaled (“the mother”) have two sons, 7½-year-old A and 4½-year-old D, and a daughter, S, who is just 3. The children live with their mother, and since August 2005, they have seen their father only for short periods, under supervision, and with some long gaps in between.
In August 2005 the father removed the boys (S was not yet born) from the mother, while the family was in Thailand, without any notice to her, and while D was still being breastfed. He took them, and her passport to Australia, leaving her with no travel documents and very little money. That much is not in contention, although there is dispute about some surrounding circumstances. With the help of her Embassy and friends, the mother managed to get back to Australia at the start of September 2005. On 4 September 2005, the father allowed her to see the boys. She fled with them to a refuge.
Since then, and since S’s birth, the father has been making efforts to have the children unsupervised in his care, sometimes seeking residence, sometimes seeking to spend time with them.
The case came before Kay J in July 2007. On the fourth day of evidence, there was an agreement for final orders for the mother to have sole parental responsibility for the children, and for them to live with her. There was also an agreement for interim orders for the father to spend supervised time with the children, for a new Family Report to be prepared in August 2008, and for the issue of the father’s time with the children to be adjourned until September 2008. It is pursuant to those orders that the case has returned before me.
The father is seeking orders to spend unsupervised time with the children each alternate week-end, a mid-week night, for half of school holidays, and on religious occasions.
The mother seeks an order that the children continue to have only supervised time with their father.
The Independent Children's Lawyer supports the mother’s case that the father’s time should be supervised.
There are currently orders to ensure that neither parent removes the children from Australia. The mother seeks to take them on holiday to northern Africa. The father is adamantly opposed to that. The ICL does not support the trip.
The father has two children from a previous marriage in his full-time care. There was a notation to the July 2007 orders that the mother would collect those two children once per month so that A, D and S, their half-siblings, could spend time with them. The success or otherwise of this regime, and whether it should be continued (as the father wants, but the mother does not) shall be considered below.

BACKGROUND

The father is Mr Tarak. He was born in a northern African country in April 1961 and is aged 47. Since 1998, he has lived mainly in Australia.
The mother is Ms Khaled. She was born in a neighbouring country in July 1968 and is aged 40.
The parties married in northern Africa in June 2000. They lived in Thailand, although the father spent substantial periods in Australia. He brought the mother to Australia in November 2002. As noted, they separated in August 2005 during a visit to Thailand. They divorced in Melbourne in early 2007.
A was born in July 2001 in Thailand. D was born in August 2004 in Melbourne. S was born in February 2006, also in Melbourne.
Before he married the mother, the father had married a Thai woman. They apparently separated in early 2000, just shortly before he met and married the mother. The two children of that previous marriage, a son R now aged 13, and a daughter F now aged nearly 10, have lived with him since, seeing very little of their mother in Thailand.
The father has now married again. He married in Malaysia, in March or April 2008, but he could not recall the date. His wife is still overseas “awaiting a visa”. They have a new baby, born in January 2009. He said he did not know his baby’s birth date, and has not spoken to his wife. In any event, he would not say where his wife is from or where she is now, nor would he give any details, as he believes she and the new baby are at risk of “harm” or “hurt” from Ms Khaled or her “community members”. I shall return to that.

MATERIAL RELIED UPON AND ORDERS SOUGHT

The father relies upon the following documents:
·His application for Final Orders as Amended filed 10 November 2008
·His affidavits filed 10 may 2007 and 14 January 2009
·The affidavit of Mr W filed 23 December 2008
·The affidavit of Mr E filed 14 January 2009
·The affidavit of Mr H filed 14 January 2009
·The affidavits of Mr Z filed 2 July 2007, 22 July 2008 and 10 October 2008.
Mr E and Mr H were not required for cross-examination.
The father represented himself in the hearing. I ensured that in advance of the final part of the hearing he had the relevant provisions of the Family Law Act, to be aware of the principles that I need to apply, and the matters I need to consider when deciding the children’s best interests.
The mother relies upon the following documents:
·Her Further Amended Response filed 17 December 2008
·Her affidavits filed 8 May 2007, 21 July 2008 and 17 December 2008
·The affidavit of Dr U filed 14 January 2009. The father did not seek to cross-examine him.
The mother was assisted by a Level 3 NAATI Arabic interpreter throughout the hearing.
The ICL relies upon:
·The reports of Dr H dated 28 November 2005, 30 April 2007 and 22 September 2008
·The affidavit of Ms RN filed 20 August 2008.

RELEVANT LEGAL PRINCIPLES

Part VII of the Family Law Act1975 was substantially amended in July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act. Section 60B(1) sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the court in determining what is in the child’s best interests. I will return to the detail below. Section 60CC(4) provides that the court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).
In this case, final orders have already been made for parental responsibility and where the children shall live. Primarily, I must decide whether the time the father spends with the children shall or shall not be supervised. I also need to decide if the mother can take the children out of Australia to holiday in northern Africa.

THE ISSUES

Although the existing orders were made by consent on 19 July 2007, they were arrived at after substantial evidence, and were accompanied by reasons for judgment by Kay J as to what his Honour called “a couple of salient background features”, and as to what was envisaged during the 12 months before a further Family Report was to be prepared.
His Honour referred to the agreement for supervised contact for six months at Y Contact Centre in T, followed by supervised time with a supervisor agreed by the parents and the ICL. He noted that at the same time, “on a parallel track”, the father would undergo counselling or therapy.
His Honour accepted that the father was able to physically provide for his children, and that overall he obviously had much to offer them. He noted that the father was “appropriately anxious” to determine how he could move forward, and how he and the children could have a proper relationship with each other, and how the children could have a proper relationship with their half-siblings.
Kay J noted that “trust” was at the heart of the case. He said:
As Dr [H] said, the major problem in this case is the trust the mother can put in the father as a parent. The father is anxious to demonstrate to the mother and to the court that he is a trustworthy person. He said yesterday, in what appeared to be a moment of appropriate insight, that he understood that there was real grounds for the mother to be scared and wanting supervised contact. This is hopefully a step in the right direction. Unfortunately some of his behaviour and correspondence, particularly with the mother's solicitors, have left one wondering whether there is sincerity in his revelation that he understands why the mother needs the reassurance.
Kay J underlined the need for the primary care-giver, the mother, to be satisfied that there was a safe environment for the children with their father.
Those observations of Kay J are relevant. They establish what needed to occur in the 12 months leading to the updated report and this return to court.
The father argues that he has done all that he can to show that he should now be able to participate fully, without supervision, in the lives of his children. He lists the extensive courses, reading, and counselling he has undertaken, and says the children are happy and contented in his care. He emphasises the importance of fathering, and the role of a father, and the very particular contribution he can make to his children and their education. He is adamant that it is time to move forward and to stop concentrating on the past. He believes that the mother is deliberately obstructing his relationship with the children.
The mother’s case is that the father’s actions do not follow his words. She says that the changes that needed to occur, as envisaged in July 2007, have not eventuated. She says she remains fearful that, without supervision, he will again remove the children from her, and/or undermine her role as their mother.
In analysing what has occurred since the parties were last in court, and the parents’ polarised views as to what should occur next, I need to look at:
·The father’s attitude and conduct
·The mother’s attitude and conduct
·The children’s views and responses
·Dr H’s opinion.

THE FATHER’S ATTITUDE AND CONDUCT

I agree with the father that it is important to focus on the future, as to what orders will best take the children forward. That said, whilst parties should be discouraged from simply dwelling on the grievances of the past, sometimes it is the past that best informs the future. That is recognised by s 60CC(4) of the Act which, as I have noted above, dictates that the court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent. In this case, aspects of the past behaviour of the parents are pertinent to an understanding as to whether the changes envisaged in 2007 have in fact come about.
The father is on strong ground in arguing the general proposition that children need fathering as well as mothering. Research, experience, and commonsense support him on that. The best interests of the particular children though must still prevail.
The father also argues cogently that he can contribute to the children’s education. I accept that he is an educated man. In fact, throughout his 11-odd years in Australia, he has remained a student, not in paid work. I accept that he is keen to help his children educationally as much as possible.
Central to the father’s argument that he has done everything required of him since the July 2007 hearing, is his recounting of the enormous personal development he has since undertaken.
He has done the following courses:
·Parent Education Leadership Training
-       February 2007 – June 2007
-       Swinburne University
·Confident Parenting Program
-       March 2007 – April 2007
-       Orana Family Services
·Fathering After Separation course
-       May 2007 – June 2007
-       Anglicare Victoria
·“Put Away the Naughty Chair”
-       June 2007
-       Centre for Child and Family Development
·Parenting Young Adolescents
-       August 2007 – September 2007
-       The Parenting Research Centre
He has had the following counselling:
·Family Relationship Centre, …
- July 2007
·Family Relationship Centre, …
- August 2007
·Family Counsellor and Humanitarian Men’s worker at Brotherhood of St Laurence Ecumenical Migration Centre, Mr W, from August 2007 until present
·Mr P, Psychologist, since August 2007.
He says he has read many books:
·Becoming Better Parents, Balson Maurice – 1994
·Building a Secure Parenting Base after Separation, McIntosh Jennifer – 2006
·Creating Child Focused Dialogues with Separated Parents, Moloney Lawrie, McIntosh Jennifer – 2006
·Dealing with Separation (CD), Australian Government, Child Support Agency – 2005
·Discipline Without Shouting or Spanking, Wyckoff Jerry & C. Unell Barbara
·How to Get Closer to Your Children, Smith Keith – 1985
·How to Raise an Emotionally Intelligent Child, Gottman John & DeClaire Joan – 1997
·Practical Parenting 6-12 Years, Linke Pam
·Questions & Answers About Separation for Children, The Australian Government Attorney General’s Department – 2001
·Raising Happy Kids, Grose Michael
·Raising Real People, Fuller Andrew – 2002
·Share the Care, Relationships Australia – 2007
·The Psychology of the Child, Piaget Jean & Inhelder Bärbel – 1997
·The Five Love Languages of Children, Chapman Gary & Cambell Ross – 2003
·Valuing Boys, Valuing Girls, Fuller Andrew
·What About the Children, Relationships Australia
·Young Australians, Phillips Shelley – 1979
·Cómo Convivir con un adolescente, Guatavino Marta L, 2003
·Los niños vienen del cielo, Magrí Ruiz Beatriz – 2004
·Mi Querido Adversario, Dr Craig Judi 2002

The problem, addressed squarely by Dr H, the Family Report writer who assessed the family in 2005, 2007 and again in late-2008, is that the father still does not appear to have learned how to co-parent. He does not appear to have a genuine understanding of the importance of the mother’s role in raising the children. And he does not appear to have gained adequate insight into the impact of his behaviour on the mother, of her genuinely held fears of him, and how that in turn impacts on the children. Dr H’s concerns can be easily illustrated.
The father gives the mother no reason to believe that his attitude towards her is any less disrespectful and disdainful than when he took the children and abandoned her in Thailand in 2005. That in turn gives her no reason to agree to the mediation he is steadfastly seeking.
The father is intelligent, and I am satisfied that his intelligence, coupled with the counselling and courses he has undertaken, lead him to well understand what he should say about the mother. Accordingly, at one point in his evidence he conceded that the mother’s fears about him taking the children, following what happened in Thailand, were “genuine”. That seemed to be a continuation of the “appropriate insight” noted previously by Kay J. However, his actions, what he said shortly before this hearing, and what he said in the witness box before and after that part of his evidence, gave me no confidence that his words were sincere.
Just several weeks earlier, on 14 January 2009, he had sworn at para 28 of his affidavit:
I say that the respondent is still trying to convince the court that she is leaving [sic] in fear. She is doing this for the malicious purpose of keeping the restrictions of the supervision in place and influencing the Family Report writer in order to impose more restrictions on the contact; which he added in his last report indeed. Doing this, she believes that one day she might succeed in disconnecting the children for ever from their father…
Later in his evidence he again said that her fear was not genuine and that she was simply being “obstructive”.
On 29 August 2008, the father wrote a letter to the mother via her solicitor. It appeared to be a positive attempt to acknowledge wrongs of the past, and to move forward with the help of mediation. He referred to the children “benefiting immensely from both of us”. He spoke of the need for a strong relationship with each parent, and the need for the parents to work “together outside our conflict”. He wrote that he recognised that children’s parents have “specific and unique contributions to make”, and of the need to be “full partners in parenting”. He referred to the benefits in establishing “a good and respectful parental relationship”.
Unfortunately, in the context of the father’s surrounding behaviour, it is clear that the letter was not sincere, and probably to a reasonably large degree, not his own work. His counsellor, Mr W, agreed that he helped “edit” the letter. I suspect he helped edit it to a great extent. It is so different in nature to other unassisted communications, and to the father’s conduct.
The letter has the ring of the precise and correct words and sentiments about parenting that an expert can bring. And that expert counsellor was clearly partisan in his evidence in relation to “his client”, very much on side with the father. Ultimately he had to concede that a great deal of the negative material before me about the father, and his behaviour, was not disclosed by his client to him. He properly conceded that he was mainly acting on what his client had told him. In any event, it is probable that he had every good intention in helping his client with the letter. The problem was that his client could not live up to or fulfil the sentiments expressed in it.
That letter was written just shortly after the father had in fact reported the mother to DHS. On 3 August 2008, she had gone to collect his two children. She was alone at the time. When the children returned to him, he asked if anyone had been looking after the other three children, when they arrived back at the mother’s home. He said the children reported there was no adult present. The mother’s account was that her new partner was there but, by arrangement, he left out the back door when she and the two children arrived through the front, because she did not want those children reporting to the father that she had a male friend.
In any event, great heartache was caused to the mother by the father’s urgent report to DHS. He claims he acted only out of concern for the children. I cannot accept that. He could have easily taken the matter up with the mother’s solicitor, but chose instead to report her to the authorities. Against that backdrop, it is hard to accept that his letter very soon after, on 29 August 2008, was sincere.
Moreover, five days after that purportedly conciliatory letter, on 3 September 2008, the father sent an email to the mother’s solicitor. It disclosed his belief that the mother’s attitude to the children was “immoral and irresponsible” in “compromising” the children’s safety. By then, DHS had closed its investigation, but clearly the father did not accept that the children were safe. He wrote:
Children’s safety cannot be compromised and I have no other way to protect the children. The Department advised me to contact the emergency police whenever I see the mother walking alone on the street.
He added ominously:
The notification is kept in the Department’s data and I am watching.
Nevertheless, he ended the letter by saying:
I am still open to mediation because it is the only way of co-operation.
Not surprisingly, that email did not assist the mother to feel confident at the prospect of mediation.
I am not sure if the father is aware of the impact on the mother of statements about calling “emergency police” or that he is “watching”. I am satisfied it compounds her existing anxiety and fear, borne of the history, and earlier poisonous correspondence.
An example of that earlier correspondence is an email written by the father to the mother’s solicitor shortly before the July 2007 trial, and tendered before me. He wrote:
…She has orchestrated her own miserable life. I can assure you that your client could never get married again and she will never travel back to her country and she will never see happiness as a single mother.
and
“The boys [A] and [D] will never grow up locked in the Golden kitchen of [the mother].
The father’s expressed desire to work co-operatively through mediation is also belied by other disrespectful actions towards the mother. For three months in early 2008, he took his two older children to Malaysia. He did not tell the mother. She did not know he was overseas. On three separate occasions, she travelled with her three children to collect the other two, only to find they were not there. The father knew from on-going interim proceedings that each trip was difficult and expensive for her, but he had not bothered to let her know that he and the children would be away.
It is the more surprising, and no doubt exasperating to the mother, that on 6 November 2008 the father brought contravention proceedings against her, when she failed to attend to collect the older two children. That was following the DHS report, and her very reasonable concern that the older children were “spying” on her and reporting her to their father.
Furthermore, the father’s attitude to that contravention application was obtuse. The mother’s solicitor had written to him explaining that it was ill-founded, because there was no court order for the mother to collect his older children. He refused to accept that. The solicitor also advised him to discuss the application with the ICL. In addition, the ICL himself invited the father to discuss it with him. The father did not avail himself of the opportunity. I do not accept that he was genuinely motivated in pursuing his application. When the matter, coincidentally, came before me, I dismissed the application.
The father has shown no understanding at all of the financial constraints on the mother. The mother says she has a child support assessment for a total of $28.25 per month. The father tendered a recent Centrelink letter showing what appears to be a fortnightly deduction from his Centrelink payment of $40.95 for child support. I do not understand the discrepancy. I do not know if there are arrears being met. In any event, there is no doubt that the mother carries the lion’s share of the financial responsibility for these three young children.
The father has not complied with orders of Registrar Fitzgibbon made on 19 August 2008 that he must contribute half of the mother’s travelling costs (his share being $35) to enable her to travel by taxi with the children at the week-end, to facilitate time between all the children. Nor has he paid his half of the fees for the last two of Dr H’s reports.
The father brought into sharp focus just how lowly the children’s mother has rated in his priorities, with his evidence that in 2008 he borrowed $4,500 in order to travel overseas with his two older children for three months. Although the father expended that substantial sum on travel, and although he continues some computer studies, this year undertaking only one subject, he has not undertaken paid work even though the children in his care are full-time at school. Again it is not surprising that his words about shared responsibility, parental co-operation, and mediation, ring hollow to the mother. They also ring hollow to the Court.
In 2008, the father allowed many months to pass without seeing these children. He was critical of the mother for that, although it was his doing, not hers. When the Y Centre supervised contact finished in February 2008 the mother’s solicitor initiated the communication with the father and the ICL about the need for a new supervisor. Soon after that, in March 2008, the father left the country, not returning until the end of May. Although the mother recommenced collecting his children to spend time with the younger three, he has only seen the three children twice since February 2008.
Once was in September 2008, facilitated by Dr H for the purposes of an updated report. The other time was just before this hearing, at the start of 2009, supervised by Mr Z, a previous supervisor, and the supervisor proposed by the father and accepted by the mother and the ICL.
I accept the father’s account as to the various reasons why Mr Z was not available on occasions in the second half of 2008. They were confirmed by Mr Z. However, it means that at a time when there was to be supervision pending a return to court, with the hope that the relationship between the father and children could then develop without supervision, the father chose to stay out of the country for three months, and he allowed many more months to pass, without suggesting an alternative supervisor, or paying an agency for assistance. It is absurd that he has tried to lay blame on the mother. Despite all the counselling, courses, and literature, it seems he still cannot take responsibility for his actions and their impact on his relationship with his children.
Finally, the father has shown in his recent affidavit and again in his evidence in court that he is unfair in his harsh criticism of the mother.
In his affidavit sworn on 14 January 2009, referring to her having said that she was happy to see his older children, he swore (at para 20):
I strongly believe that her statement therein is cynically given to give the impression that she is thoughtful, compassionate, sympathetic and acting in the best interest of the children. Given that she has been deliberately ignoring the children’s sentiments, a truthful and sincere intention in facilitating the time spent between the children in the future is very remote. … I am sure that after the upcoming trial, she will return to her obstructive and stonewalling habits. Particularly, in the view of her unchanged irresponsible attitude and her apparent contradictory statements. In her view, children do not need to socialise and play with their close young family members. From my first-hand knowledge of the respondent, I say that her negative attitude has remained very unhelpful to this case as a result of her very low level of education and lack of understanding of the emotional development of children.
The father showed no appreciation or understanding of how reasonable the mother had been in ensuring that his older children spent time with their half-siblings. He showed no appreciation of the impact on her, in financial and practical terms, let alone in terms of her vulnerability to his criticism and an unsubstantiated DHS complaint. As noted, he did not even comply with an order to assist her with the expense of transporting the children in order to bring them together.
Worse, he showed clearly what he thought of her role as a parent. In evidence he said that she was a “bad” and “negligent” mother. Later he corrected himself to say that was “at times”. I was not convinced that he genuinely meant that correction. His attitude towards the mother was evident when he refused to disclose details about his new wife and baby, for fear that she and her “community members” would cause them “harm” or “hurt”. On his account, it was a similar concern on his part that led him to remove the children from her care in Thailand in 2005. It cannot help but alarm her, and the Court, that as his attitude has remained unchanged, so has the risk of the children’s removal from their mother.

THE MOTHER’S ATTITUDE AND CONDUCT

My analysis of the mother’s attitude and behaviour is necessarily briefer than my analysis in relation to the father. That is because, when the case was adjourned for one year, the emphasis was on the changes required in his attitudes and behaviour.
The mother impressed me as truthful. She may not have had the formal education of the father, but she was nevertheless thoughtful and intelligent in her expression.
There can be a difficult tension and rawness when a former spouse, without the filtration of a lawyer, is the direct cross-examiner. Sometimes though, that lack of filtration, prompts a more profound insight into the witness’ heartfelt point of view. This was such a case.
There were moments during the father’s cross-examination of the mother when she found her voice, and described with deep pathos her experiences, her fears, why she does not trust him, and why she could not possibly have any faith in mediation.
She spoke of mediation being impossible while he continued to accuse her of being with a terrorist community, or he expressed fear that she might harm or hurt his new wife and baby.
She described his violence towards her, referring to him throwing her across a room in Thailand when she was pregnant with S and that S’s twin “died in her stomach”.
She spoke of him having reported her and her family to her country’s Embassy, and the Ministry for Women in her home country, so that her mother and brother were still under surveillance from “intelligence security” in her home country.
She described in detail the pain she felt in Thailand, when he took the children and left her stranded.
She described her struggles raising the three children alone with virtually no financial assistance from him. She pointed to the expense for her, in travelling to collect his older two children, and his lack of contribution. She asked him rhetorically if he had remembered these three children with anything: a present, a top, a toy, or shoes, for example. She spoke of the strain of spending $600 on glasses for S, and paying membership with the Ambulance Association to cover the children if sick. And she pointed to the fact that although he made no efforts to help her, he recently spent $4,500 on his trip to Malaysia.
In her evidence, the mother summed up her position succinctly. She pointed out to the father that he had unfairly accused her as “a bad mother”. She said she had “endured all” and “not asked for anything”. She volunteered that she fully understood that these were his children and that she would “never deny him”. But, she said, it was his “stubbornness” that would not make her comfortable. She added: “You need to wake up”.
The mother spoke movingly about the father’s children, R and F. She described them as “…like statues”. She described F as moving her head, but not talking. She said that F was crying for her mother when her mother last left. She said F wants to live with her mother, and does not know when she will next see her. These observations were supported by Dr H’s observations of those children.
Dr H described the mother’s attitude to the father’s older children as “admirable”. At enormous cost to herself, financially and emotionally, she has, without court order, participated in bringing them together with her children. Dr H said he had always thought it a risky prospect for the mother, in the sense that the children came from their father’s household, and just as Dr H had feared, they were used by the father as the basis for information that he used to report the mother to DHS.
The mother has shown a true appreciation that it was important to keep the half-siblings in contact. However, she described how the two children barely relate to her when they are with her. She was upset that the father had “blemished her image” to the children, and expressed the concern that he would put similar things in the heads of her own three children if they were to spend unsupervised time with him.
The mother is no longer comfortable welcoming the older two children into her home, or having them in her care. It is now her view that the half-siblings can be together when her three children are having supervised time with their father. That she no longer wishes to be involved is reasonable.
The mother struck me as a quiet and dignified woman. Her words and her demeanour displayed a genuine sadness and anxiety arising from all that had befallen her family. The medical evidence about her anxiety was unchallenged. Still, she has not proposed that the father should be completely cut out of the children’s lives. And in answer to a question from counsel for the ICL, she readily conceded that the children were “happy” after the recent visit with their father. She volunteered that she would be pleased if they had a happy time every fortnight for six months, and she would be pleased to see the improvement and to make changes. She simply seeks reassurance that the father’s time with them will be supervised, so that he does not remove them again or undermine her role as their mother.

THE CHILDREN’S VIEWS AND RESPONSES

The father says the children are joyful and happy when they are with him. Mr Z, who supervised the recent contact in January 2009, agreed that he did not see any difficulties at all between the father and children. Nor did he recall previous problems, although S cried when she was little.
In her recent affidavit, the mother swore that A tells her that he does not want to see his father, as does D, who screams and says he does not want to go. Nevertheless, as noted directly above, she did readily concede that the children came back happily from the recent time they spent with him.
The only objective insights into the children’s responses exist in the reports of Ms RN, in relation to the supervised time at Y Contact Centre for the six months ending February 2008, and the Family Reports of Dr H.
The Y Centre report, covering 12 contact periods, showed mixed responses from the children. There were times when the children responded warmly to their father, played happily, and hugged him.
So far as A was concerned, there were times however that he acted aggressively towards his father, for example throwing food at him, hitting or jumping on him, saying “I’m going to kill you” or “You always lie”, calling him a “crazy man”, and from time to time saying that he did not want to see him.

Although the father was dismissive of A’s behaviour, saying it was “normal”, which he later explained to mean normal for the situation where he rarely saw his father, it concerned the mother. She observed that A otherwise behaved well both at home and at school. It concerned Y Centre too, because it was an on-going problem. It also concerned Dr H.
Although D has not shown the same aggression towards his father, the mother’s account that he has been distressed at the prospect of seeing him was supported by Dr H’s observation (at para 19 of the recent report) that D “reacted very tearfully when the time came for him to leave his mother and meet his father”. However, D did enjoy the time then with his father, and interacted well with the other children.
Little S often cried at change-overs at Y Centre, and was frequently reported as crying, whimpering, being unsettled, or calling for her mother during sessions.
I am satisfied that the children’s views in this case cannot be the defining feature. They are very young. They have had an extremely interrupted relationship with their father, and in S’s case, she has never lived with him. They are at the centre of enormous tension between their parents. In the last year in particular, they have barely seen their father at all. They have not been able to get into a routine with him.
Similarly, the children’s behaviour when with their father cannot be determinative of the result. S’s tears are well explained given her age and unfamiliarity with her father. Similarly, D’s response when it comes time to leave his mother. A’s aggressive behaviour though is a cause for concern and needs to be monitored and if it continues, needs to be addressed. It is hard to gauge how much memory he might have of the traumatic events in August 2005 when he was just four years’ old.
I do however take into account that they are capable of enjoying time with their father.

DR H’S OPINION

Dr H was an impressive witness. He is well qualified and mature. He is also in an excellent position to assess progress in the family, having prepared two previous Family Reports, in November 2005 and May 2007. His reports were detailed. He saw the children in various settings, and I was impressed by his thoroughness, and balance.
In his latest report, Dr H concluded that the father’s time with the children should continue under supervision. He recommended:
30.It is respectfully recommended that [the children] be able to spend time with their father on the basis of two to three hours a fortnight at a suitable venue within reasonable distance of the mother’s home and under the supervision of a person or persons known to and acceptable by the children and who is approved by the Independent Children's Lawyer. This site may be a formal Children’s Contact Centre that both parents can access or a public place such as [J Park] in [K].
31.It is respectfully recommended that the supervisory arrangements continue in place until such time as [the father] can demonstrate to the Court’s satisfaction that he will support the children’s mother in her maternal role and that she has nothing to fear with respect to the children’s safety.
32.It is respectfully recommended that the children’s names and details be entered on the Airport Watch List.
Dr H emphasised that although the father had undertaken efforts with learning about parenting and cultural differences:
…no balanced view has emerged that enable he, and [the mother], to recognise that he understands what he had done in taking his two sons off their mother and abandoning her in Thailand, or, that there is a responsibility on him to make up for his actions in ways that will re-establish [the mother’s] trust and respect. The cognitive or mental “splitting” suggested in the emphasis on fatherless families to the exclusion of comment on the role of mothers does not bode well for the lifting of the present restrictions on [the father’s] open access to his three youngest children.
Dr H noted that the father appears to have a good academic grasp of ideas about parenthood but his views are too unbalanced to give confidence that he will support the mother’s role with the children, rather than undermine her efforts. In particular, Dr H pointed to the tone and attitudes displayed in his 3 September 2008 email, written after all the counselling sessions had been completed. He said it showed “hostility to the children’s mother that cannot be hidden and that the counselling sessions have not eradicated.” He remained concerned by the father’s unchanging attitudes towards the mother and “her community”. In his view, the mother’s genuine fear of the father, and the need for supervised contact, continues.
In evidence, Dr H added that the father’s report of the mother to DHS did not bode well for a future relationship between them. Neither did the fact that he went overseas for three months without telling her last year. Nor that he described her as at times a “bad and neglectful” mother. That concerned Dr H in particular, as indicative of the father’s disrespect for the role of a mother and his untenable position, as perceived by Dr H, that he would be happy if he were the only one parenting all of his children.
Dr H emphasised the impact on the mother of her continuing anxiety that the children will again be removed, as well as the impact of her anxiety on the children, and the younger two children’s own anxiety surrounding leaving their mother to spend time with their father. He was troubled by the father’s apparent on-going ties to Thailand. And he was concerned that none of the reports that he read as to counselling or courses undertaken by the father indicated that he had accurately disclosed to the counsellors all that had occurred in the past.
Dr H also emphasised his concerns that the children in the father’s care did not experience love, comforting, cuddling, or what he called “emotional parenting”. He observed what he described as a “dramatic” difference in the little girl F, when her mother from Thailand was visiting in September 2008. He described her as a “different child”; one who was happy, talking, chatting, unlike the quiet and unhappy child he had previously seen. He described her as “blossoming” in her mother’s company.
In cross-examination, the father repeatedly asked Dr H what more he could do in order to have a normal relationship with his children. Dr H could not have been clearer in his answer that the father needed to show by his actions, not words, that he respected the mother’s role with the children, and that he would never again do anything to interrupt or undermine that. It was largely because Dr H has seen little progress in the father’s understanding of that, that he recommended on-going supervision.
Dr H did suggest however that after 12 months there could be a further assessment, not with a view to adjourning or continuing this litigation, but to provide the potential to move forward, if things genuinely change for the better.

CONCLUSION

I am satisfied that it is in the best interests of A, D and S to see their father and spend time with him, but only on a supervised basis, at the times proposed by the ICL.
In deciding the children’s best interests, I refer to the considerations set out in s 60CC(2) and (3) of the Family Law Act.
As to the primary considerations in s 60CC(2), I must consider the benefit to the children in having a meaningful relationship with both of their parents. Ironically, both parents emphasise that consideration, the father in saying that the children are currently missing out on fathering and the contributions he can make to their upbringing, the mother by emphasising her fears that if the father is given the opportunity, he shall terminate or seriously obstruct a meaningful relationship between herself and the children. The mother also emphasises the risks to the children of psychological harm, if taken by their father, or alienated from her. The evidence persuades me that it is a real risk.
As to the relevant additional considerations in s 60CC(3) of the Act, I have referred to the children’s views and that at their young ages, and in the circumstances of this case, their views cannot be determinative.
When it comes to the nature of their relationship with each of their parents, and the parents’ respective attitudes and capacities, I am satisfied that the mother has demonstrated that she has met the children’s needs admirably. That the father still cannot endorse her parenting, without references to her as a “bad” or “negligent” mother, is one of the basis for genuine concern about his own capacity to parent, and his capacity to help the mother rebuild her trust in him. That concern is underlined by Dr H and his observations of the father as someone who has an academic or mechanical understanding of parenting, but lacks the capacity for warmth and affection or an understanding of children’s needs.
I am satisfied that of these two parents, it is the mother who has the capacity and willingness to facilitate a relationship with the other parent, and not the other way around. The father says that she has obstructed his relationship with the children. That comment shows his lack of insight, understanding, and remorse, about what has happened in the past with these children. The impediments to his fulfilling the duties he so wants to fulfil as their father lie with him, not with her.
The history of how he removed them from Thailand and abandoned their mother, cannot simply be consigned to history. That it bred in their mother a deep and abiding distrust of him, and anxiety about his role with the children, is understandable. I am left in no doubt that her fears remain current and genuine. The father at one point acknowledged that she would probably “collapse” if he had unsupervised time with the children. However, at other times he swore that her fear was not real – she was just being “malicious” or “obstructive”. His mixed messages make it hard to have confidence in him.
The mother’s understanding of the children’s need to interact with other family members is obvious from the way she has put herself out to care for the five children, so that the half-siblings could be together. The father has shown no appreciation of that, and could not even comply with the order to help share expenses.
She has also complied with the various orders to ensure that these three children see their father. It is him, not her, who was responsible for there being no time together for most of 2008.
The practical difficulties in relation to time with the father is a pressing issue in this case. Supervision means that someone appropriate must be available, and/or there must be an agency or a paid supervisor. It is a credit to the mother that she has been amenable to Mr Z, suggested by the father, as the supervisor. Unfortunately, it became clear in Mr Z’s evidence that he could probably only supervise for about another six months. I note his suggestion that he could otherwise “monitor” the father’s time with the children, by calling in unexpectedly to check how things are going. That arrangement fails to comfort the mother, and I am satisfied, particularly on the basis of Dr H’s evidence, that it is not a suitable way of proceeding. The children’s needs dictate proper supervision, not just random monitoring.
I appreciate the ICL’s offer to remain involved in the case long enough to consider proposed supervisors beyond Mr Z, and/or to select a paid service for supervision. I am conscious of Dr H’s evidence that people sometimes value what they pay for, more than what is free. He clearly favoured a supervisor paid by the father, but the ICL should not be constrained in his choice.
The father’s proposal for the children now to spend overnight time with him and half holiday time, unsupervised, would provide a change in their circumstances that I am satisfied the children simply could not successfully bear. Dr H emphasised the negative impact on the children, likely to arise from their mother’s anxiety, as well as their own.
I am bound also to consider the maturity, sex, lifestyle and background of the children. Both parents are Muslim, and it seems that the children are being raised in that faith, so that is not a contentious issue. I note that the parents are of different nationalities. With the mother, the children are clearly exposed to their national background. With their father, they will hopefully have access to their father’s background, although I acknowledge the orders I propose mean that will be more limited than he would have hoped.
The father has emphasised the need for him to be involved with the children from an educational point of view. He wrote of the mother as an ignorant, uneducated woman. I have already noted that she struck me as a thoughtful, intelligent person, even if her formal education was limited.
The children are very young. At this stage A is going well at school. I have no reason to believe that the mother has other than the best educational aspirations for the children. I hope for the children that their father is able to contribute more to their education as they grow older. That will depend on his own conduct.
I must consider any family violence involving the children or a member of the children’s family. That was an issue raised by the mother, who claims that she and A were both victims of the father’s violence. The issue was not aired in detail before me and I can make no absolute finding about it.
Finally, I must consider an order that would be least likely to lead to further proceedings. That is important in this case. The parties have litigated for 3½ years. The case has already been heard once for four days before it was adjourned for a year. It has again been heard over four days this time.
In one sense, the order least likely to lead to further litigation would simply be an order for long-term supervised time with the children. It is important though, and in the children’s best interests, to give the father incentive to change, or the opportunity to establish such change, after a fair time. Dr H suggested a period of 12 months. Without that evidence, I would have been inclined to leave it longer. However, I see wisdom in Dr H’s recommendation when I consider that S is only three, and it is important that any relevant changes in circumstances be detected sooner than later.
My concern is that the family must not continue to live in the shadow of imminent litigation. The case cannot be adjourned again, pending this further report.
I am satisfied that if the father wants to review the situation after 12 months from the date of these orders, he should be permitted to do so. He should be entitled to obtain a report. I know he would prefer a different report writer, because Dr H has not supported what he is seeking. However, I am satisfied of Dr H’s objectivity, and I am satisfied that it is in the children’s best interests to talk to the person they have met on three previous occasions, and for the report to be from the person who can measure the changes, rather than someone who would be asked to consider what are complex issues, in relative isolation.
The ICL proposed that Dr H be appointed pursuant to s 65L of the Family Law Act. I made it clear in the course of submissions that I do not see that as the best structure for orders in this case. The ICL will be available to consider appropriate supervisors. All that should be sought from Dr H is a report. I am satisfied that it should be fully paid for – in advance – by the father. It deliberately puts the onus on him. He has failed to meet his half of the fees for the two previous reports. Dr H should not be left in that position again. And as the onus is squarely on the father to prove any new facts and circumstances that would warrant a change to these final orders, I am satisfied that the onus is properly on him to seek and pay for the report. Moreover, the financial constraints on the mother are such that I do not propose adding to them.
In his closing submissions, the father asked me a number of times what would happen next. I explained, and for clarity I shall explain again here, if he chooses to obtain and pay for Dr H’s report, and that report is favourable to making changes in how his time should be spent with the children, the father should then contact the mother’s solicitor to ascertain if changes can be made by consent. If not, and there is no other alternative, he may choose to bring the matter back before the court.
I underline to the father however, that I am not simply inviting another round of litigation. He would first and foremost need to satisfy the court that in what by then would be more than a year from the time of these orders, that there are genuinely new facts and circumstances that warrant a reconsideration of the final orders now being made.
I have agreed with the order proposed by the ICL restraining the father from contacting or approaching the mother, her home, or the children’s schools, kindergartens, or crèches. He did not object. He is already bound by a similar undertaking in the Magistrates’ Court. I have included it here so that the parties have one set of court orders that disclose all they are bound to comply with.
The father raised the issue of attending parent-teacher interviews. I agreed he should be able to do so, provided it was not in the presence of the mother, or the children, or during school hours. He submitted that if he were only spending supervised time with the children, he would no longer seek to attend parent-teacher interviews. I am satisfied though that if, upon quieter reflection, he would like to pursue this involvement, he should have the opportunity. It would be in his children’s interests for him to know what they are doing at school.
I shall not order that the mother collect the father’s older children to have them spend time with the three younger children. They can spend time together, but in his time. It is not reasonable to expect her to continue to care for children who, I accept from her evidence, have become unresponsive to her. And it is not reasonable for her to put herself out for them, with the on-going fear that they shall report on her to their father.
That brings me to the issue of the mother travelling to northern Africa. She says that she wants to take the children to meet her family. Dr H said that he believes she is likely to return, as she seems to regard Australia as home. He conceded though that he had not really turned his mind to that topic, and had not asked her about it.
I agree with the ICL’s proposal that the order restraining both parents from removing the children from Australia should remain in force. I am satisfied that if the mother takes her children to northern Africa, the emotions and forces at work are likely to be so intense, that the temptation to remain in the bosom of family, away from the fear and the rigours that she has felt since meeting the father, could easily become overwhelming. The mother’s home country is not a signatory to the Hague Convention. Both parties are in receipt of government benefits. The chances for there to be an appropriate “fighting fund” for the children to be returned to Australia is negligible. In the circumstances I perceive the risk of the children’s retention outside the country as simply too high.
Counsel for the mother sought an order for two lots of reserved costs to be paid by the father in the mother’s favour. The first related to an order reserving her costs on 12 January 2007, when the father’s application for unsupervised time with the children was dismissed, the interim matter already having been determined by Registrar Fitzgibbon relatively shortly before then, on 17 October 2006.
The second related to the dismissal of his contravention application when it came before me on 16 December 2008.

Costs are a discretionary matter, governed by s 117 of the Family Law Act. I propose exercising my discretion in favour of the mother receiving her costs in relation to the dismissed contravention application. I am satisfied, as noted above, that the father was adequately forewarned that the mother could not be found in contravention of what was a notation, not an order. He would not heed the advice, nor take advantage of the opportunities that were offered to him, to discuss it with the ICL. I accept that the mother’s costs thrown away when the matter came before me were not covered by her Victoria Legal Aid grant of assistance. I am satisfied that the father should pay for the three hours’ time claimed by the mother’s solicitor, but on scale at $198 per hour, or $597 in total. I shall give him a stay of one month.
I am not satisfied that I should order the costs for the January 2007 hearing. I am not sufficiently apprised of all the reasoning for the first application, or why the second application was brought. I point out though that any unnecessary applications in future will no doubt be met with the strong response of a costs order.

THE ORDERS

The orders I propose, subject to submissions as to form, are as follows:
1.That all previous parenting orders shall be discharged.
2.That the father and the mother by themselves, their servants or agents shall be restrained from removing, attempting to remove, or causing or permitting the removal or attempted removal of the children A born … July 2001, D born … August 2004, and S born … February 2006 (“the children”), or any of them, from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the names of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further order of the Court.
3.That as soon as practicable the solicitor for the mother shall serve a sealed copy of this order upon the Proper Officer of the Australian Federal Police at Melbourne and the Marshal of the Family Court of Australia AND IT IS REQUESTED that the Australian Federal Police give force and effect to this order.
4.That the mother shall have sole parental responsibility for the children.
5.That the children shall live with the mother.
6.That the father by himself, his servants and agents shall be and is hereby restrained from approaching, telephoning or contacting the mother or knowingly being within 200 metres of the mother’s residence or any school, kindergarten or crèche that the children attend, save as provided in these orders.
7.That the father shall spend time with the children for two hours per fortnight or such other period as agreed between the parents, at J Park in K and in the event of wet or unsuitable weather for outdoors, at the library in K or such other venue agreed between the parents PROVIDED THAT the father’s time with the children shall be supervised by Mr Z or other person agreed by the parents, or failing agreement, by such person or organisation as nominated by the Independent Children's Lawyer.
8.That any costs associated with the time the children spend with the father shall be borne by the father.
9.That the father shall be at liberty at any time after 11 March 2010 to obtain a report from Dr H as to whether any changes are warranted in the father’s supervised time with the children PROVIDED THAT the father pays in advance the full fee for Dr H’s report.
10.That the mother shall ensure that the father is advised of:
(a)    Any significant medical condition suffered by any of the children as soon as practicable;
(b)    Provided copies of all school reports in respect of the children in a timely fashion; and
(c)    Advised of upcoming school parent-teacher interviews.
11.That the father shall be permitted to attend school parent-teacher interviews, provided that such interviews occur when neither the mother nor any of the children are present on the school premises.
12.That the father shall pay to the mother’s solicitors, the mother’s costs reserved on 16 December 2008, fixed at $597, with a stay of one month.
13.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
14.That all existing applications shall be otherwise dismissed and removed from the list of cases awaiting finalisation.
15.That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

I certify that the preceding one hundred & thirty-eight (138) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate:

Date: 11 March 2009

[2009] FamCA 177

11 March 2009

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Costs

Remedies

Procedural Fairness

Jurisdiction