TARIQ & JACOBSON

[2017] FamCA 341

FAMILY COURT OF AUSTRALIA

TARIQ & JACOBSON [2017] FamCA 341

FAMILY LAW – CHILDREN – PARENTING ORDERS – Procedural fairness to father in circumstances of trial of parenting proceedings proceeding on an undefended basis – father afforded opportunity to make submissions as to parenting orders in child’s best interests.
FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Whether in child’s best interests for mother to have sole parental responsibility.
FAMILY LAW – CHILDREN – TIME AND COMMUNICATION – Where mother seeks orders for the child to spend no time and to not communicate with the father – significant history of family violence – where father has exposed child to risks of harm even in supervised setting – orders sought by mother supported by Independent Children’s Lawyer.
FAMILY LAW – EVIDENCE – EXPERT EVIDENCE – Opinions accepted that father motivated by need to control the mother rather than upon the child – mother’s parenting capacity at risk of compromise if orders for time/communication made.
FAMILY LAW – COSTS – No order for costs.

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286

APPLICANT: Mr Tariq

RESPONDENT:	Ms Jacobson
INDEPENDENT CHILDREN’S LAWYER:	Ms S. Batenburg

FILE NUMBER: BRC 10671 of 2012

DATE DELIVERED: 19 January 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 14 September 2015

REPRESENTATION

FOR THE APPLICANT:	In person
COUNSEL FOR THE RESPONDENT:	Ms McArdle

SOLICITOR FOR THE RESPONDENT:

Barry.Nilsson.Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Pendergast

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

SBA Lawyers

Orders

IT IS ORDERED:

1. That the mother shall have sole parental responsibility for the child, B born on … 2008 (“the child”).

2. In the exercise of sole parental responsibility, the mother will make decisions in relation to the major long-term issues, as such issues may arise, including but not limited to:

   (a)       The child’s schooling including decisions about the type of schooling   and the schools at which the child shall attend.

   (b)       The child’s health, in particular the need for any operations, dental       treatment, speech therapy, physiotherapy, any specialist treatment, any       alternative treatment and medicating the child on a long-term basis, as       well as attendance by the child for any reason upon a child psychologist,            counsellor, family therapist or psychiatrist.

   (c)       The child’s involvement in sporting, cultural, artistic or community      activity including competition and training.

3. That the mother have sole responsibility for making decisions about the

   
   

   day-to-day care, welfare and development of the child during the period when the child is living with her.

4. That the child live with the mother.

5. That there be no time or communication between the father and the child by any means whatsoever.

6. That, for a period of two (2) years:

   (a)       Each of the parents, Mr Tariq born on … 1972 and Ms Jacobson born on … 1973 and their servants and agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of the child, B born … 2008 (a male) from the Commonwealth of Australia.

   (b)       B born … 2008 be and is      hereby restrained from leaving the Commonwealth of Australia.

7. It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Family Law Watchlist for a period of two (2) years.

8. The Marshal of the Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and officers of the police forces and services of the various States and Territories are requested and authorised to take all necessary steps to give effect to these orders.

9. That upon the expiration of the period referred to in orders (6) and (7), and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Family Law Watchlist.

10. That each party pay their own costs of these proceedings.

11. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tariq & Jacobson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10671 of 2012

Mr Tariq

Applicant

And

Ms Jacobson

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Procedural fairness

1. On 16 July 2015, for reasons then delivered extemporaneously I ordered, inter alia, that the trial of the applications for parenting orders[1] of Ms Jacobson (“the mother”) and of the Independent Children’s Lawyer (“the ICL”) appointed to independently represent the interests of the subject child, B (born in 2008) in the proceedings, was to proceed on 14 September 2015 on an undefended basis. 

   [1] Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. As is recorded in the reasons for judgment delivered on 16 July 2015, there had been multiple, repeated and longstanding fundamental failures by Mr Tariq (“the father”) to comply with orders and directions first of the Federal Circuit Court of Australia, and then of this Court, virtually from the outset of the father filing an initiating application on 23 November 2012.  The orders and directions referred to were designed to progress the proceedings to a trial.  The father’s failures referred to were despite him having legal representation from time to time.

3. As is also recorded in the reasons for judgment of 16 July 2015 the father attended that hearing, then representing himself, and was present for the delivery of judgment and to receive an explanation from the Court of the practical effect of that outcome.  The content of that explanation appears in [23] and [24] of the reasons for judgment referred to.

4. At the outset of the hearing on 14 September 2015, which the father attended again self-represented, it was confirmed that, in advance of that hearing, there had been exchanges between the parties to the effect that no witness was required by any party for cross-examination.  It was reiterated to the father that the Court would receive the affidavit evidence relied upon by the mother and by the ICL (with there being no cross-examination required by any party); that the Court would then proceed to receive the submissions of the mother’s counsel as to the orders the mother sought and why those orders should be made; then likewise the submissions of counsel for the ICL.  It was explained to the father that the Court would then receive his submissions as to the orders the father contended for.

5. The father confirmed his understanding of these explanations.  Whilst English is not the father’s first language, I was well satisfied that he in fact understood that which was explained to him and indeed that the father comprehended what transpired at every stage of the proceedings. 

6. Counsel for the ICL and counsel for the mother formally read, respectively, the affidavit material each of those parties relied upon in the father’s presence in Court.  The ICL also tendered as an exhibit a bundle of documents extracted from documents produced to the Court via subpoena.

7. The material relied upon by each of the mother and by the ICL included the respective orders each party sought.  After some clarification it was confirmed that, apart from the order for costs the mother sought against the father, and some differences as to the Airport Watch List/injunctive orders, the mother and the ICL were in general agreement that the following orders were those sought by both the mother and the ICL:

   IT IS ORDERED:

   1.That the mother shall have sole parental responsibility for the child, [B] born … 2008 (the child).

   2.In the exercise of sole parental responsibility, the mother will make decisions in relation to the major long term issues, as such issues may arise, including but not limited to:

   a.The child’s schooling including decisions about the type of schooling and the schools at which the child shall attend.

   b.The child’s health, in particular the need for any operations, dental treatment, speech therapy, physiotherapy, any specialist treatment, any alternative treatment and medicating the child on a long term basis, as well as attendance by the child for any reason upon a child psychologist, counsellor, family therapist or psychiatrist.

   c.The child’s involvement in sporting, cultural, artistic or community activity including competition and training.

   3.That the mother have sole responsibility for making decisions about the day to day care, welfare and development of the child during the period when the child is living with her.

   4.That the child live with the mother.

   5.That there be no time or communication between the father and the child by any means whatsoever.

   6.That, for a period of two years:

   a.Each of the parents, [Mr Tariq] born … 1972 and [Ms Jacobson] born … 1973 and their servants and agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of the child, [B] born … 2008 (male) from the Commonwealth of Australia.

   b.[B] born … 2008 be and is hereby restrained from leaving the Commonwealth of Australia.

   7.It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for a period of two years.

   8.That upon the expiration of the period referred to in orders 6 and 7, and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Airport Watch List.

   9.That the father pay the mother’s costs of and incidental to these proceedings.

8. The father was then invited to indicate what orders he sought. 

9. Exchanges between the Bench and the father thereafter confirmed that:

   a)The father was opposed to the order sought for the mother to have sole parental responsibility for the child indefinitely; and

   b)The father was opposed to the order sought for there to be no time or communication between the child and the father.  The father indicated that he sought, in general, orders providing for communication and time between the child and the father as follows:

   i)communication via Skype on a more or less daily basis (the father was living in Sydney whilst the mother and child lived in Brisbane);

   ii)communication via telephone on a more or less daily basis; and

   iii)monthly time for a weekend or, alternatively, for the day, when the father proposed to come to Brisbane and other unspecified occasions in Sydney “sometime” in the future.

10. As to parental responsibility, the father confirmed that he was not opposed to the mother having sole parental responsibility to decide long-term issues concerning such matters as the child’s health and education for the next three years, but not thereafter.  By inference, after three years, the father sought to have a role in such decision-making.  The relevance of a three year period was not identified by the father.

11. As to time and communication, the father made several (somewhat inconsistent) statements about when and for what periods he had plans to be overseas for an extended period.  As best as could be clarified about this, the father referred to plans to go overseas for three or four months sometime subsequent to January of 2016.

12. The father also referred, in the course of these exchanges, to his desire to take the child overseas with him in future to visit various relatives of his that the child has never met.  No specific proposal about that was advanced.

13. It ought be recorded that the father’s original application for parenting orders when filed was predicated upon, in part, allegations that in the mother’s care or as a consequence of the mother’s care the child was demonstrating sexualised behaviours which the father and his mother allegedly witnessed the child display.  However, those concerning allegations were abandoned by the father in the hearing before me on 16 July 2015.  In my judgment, given the mother’s evidence which I accept, there was never any basis for those allegations and the absence of any explanation by the father for abandoning them demonstrates, in my view, the father’s lack of bona fides in advancing them in the first place.

Exhibits

1. Exhibit 1 in the proceedings is a minute of the orders sought by the mother, tendered by her counsel in the course of submissions, as earlier set out. 

2. Exhibit 2 in the proceedings is paragraph 40 of the father’s affidavit filed on 23 November 2012 relied upon by counsel for the mother in the course of her submissions, not for truth of its content, but for its relevance to other evidence.

3. Exhibit 3 in the proceedings are personal references of the father tendered by him in the course of his submissions.  Despite the matter proceeding on an undefended basis the other parties did not object to the tender of these documents.

4. Exhibit 4 is a letter from Relationships Australia dated 8 September 2015 relevant to the father likewise tendered by him without objection by the other parties. 

5. The hearing on 14 September 2015 proceeded as earlier foreshadowed: that is, the Court received the submissions of counsel for the ICL and then those of counsel for the mother; with the father being permitted to make submissions in response.  The submissions on behalf of each of the ICL and the mother respectively were directed to the evidence before the Court, including expert evidence as will be referred to.  From observing and hearing from the father during the proceedings I am satisfied that he was aware of, and comprehended, the case he had to meet and the evidence which was being relied upon by the other parties in support of it, for the orders jointly sought by the mother and by the ICL.  Within the constraints of an undefended hearing, brought about by the father’s own conduct, I am satisfied that the father had, and took, the opportunity to make such submissions to the Court as he sought to make.  At least since the orders and reasons of 16 July 2015 were delivered, the father was aware that he would have the opportunity to make submissions to the Court on 14 September 2015.

Statutory framework

1. Part VII of the Act (ss 60A to 70Q) provides the statutory framework for the Court’s jurisdiction and power to make parenting orders.

2. As these are child-related proceedings within the meaning of the Act, Division 12A of Part VII of the Act applies to them including the principles applicable to their conduct (s 69ZN); the duties giving effect to those principles (s 69ZQ) and the provisions about evidence (ss 69ZT to 69ZX).

3. Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); and the principles which underlie those objects (s 60B(2)). Section 60B(1) provides:

   (1) The objects of this Part are to ensure that 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.

4. Section 60B(2) provides:

   (2)  The principles underlying these objects 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).

5. Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

6. Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests. The primary considerations are:

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

7. Section 60CC(2A) requires that in applying the primary considerations the Court is to give greater weight to the consideration set out in paragraph (2)(b).

8. Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. Section 64B defines that term and identifies the matters that may be dealt with by a parenting order. Section 65D expressly provides that the power is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility (s 61DA(4)).

9. The effect of s 65DAA of the Act is that if the Court makes an order providing that the child’s parents are to have equal shared parental responsibility for the child, then it must go on to consider whether it is in the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents, and if it is, to consider that order, and, if not, the Court must consider whether it is in the best interests of the child and reasonably practicable to make an order for substantial and significant time with each of the parents.

Central propositions advanced by the ICL and the mother

1. The following can be seen as the central propositions, in summary and paraphrased form, advanced by the ICL and/or the mother (in substantial part relying upon expert evidence in the case) to support, in the child’s best interests, an order for the mother to have sole parental responsibility for the child; and for there to be no orders for the child to spend time, or communicate with, the father:

   a)There is an entrenched pattern of behaviour of the father perpetrating family violence upon the mother and acting in contravention of protection orders made from time to time by contacting the mother contrary to the terms of such orders;

   b)The father has no understanding of the potential or real impact upon the child or upon the mother of his behaviour;

   c)The father is apparently unable or unwilling to moderate his behaviour to the extent necessary to prevent the child from being exposed to risks of physical and/or emotional and/or psychological harm;

   d)The child does not have a meaningful relationship with the father which is of benefit to the child;

   e)The child is merely incidental to the father’s greater aim of exerting and asserting his will and control over the mother;

   f)It would optimise the mother’s parenting capacity, to the benefit of the child, to be relieved of interventions by the father – the father would use time spent with the child as an opportunity to exert his will over the mother potentially compromising her role as the child’s primary carer.

2. In my judgment each of these central propositions is established by the combined effect of:

   ·The affidavit evidence of the mother and in her case;

   ·The subpoenaed documents extracted by the ICL and filed on 8 September 2015;

   ·The evidence of Ms D, the Supervised Contact Manager for E Group;

   ·The expert evidence of Dr F, psychiatrist and Mr C, psychologist.

3. By way of background, the mother and father commenced an “on again off again” relationship in June 2006.  They never cohabitated or married.  The father was born in Europe, however has lived in Australia for some 16 years.  The mother was born in Australia.

4. On the mother’s version they separated on a final basis on 24 December 2011.[2]  The mother admits that she continued to engage in a sexual relationship with the father as recently as January 2014, however it is the mother’s position that she allowed the more recent sexual relations to occur in order to stop the father from becoming aggravated or violent.

   [2] Mother’s affidavit filed on 4 August 2014 at paragraph 5.

5. The mother outlines that in 2006 the father travelled to North Africa and undertook an arranged marriage to a woman named Ms H.  There is one child of that relationship, J, born in 2007, who lives with his mother in Europe.  The father reported to Mr C, the family report writer, that he ended the marriage with Ms H after a period of two weeks and they were subsequently divorced, however continues to speak with her and has previously indicated an intention to remarry Ms H.

6. As at trial the mother was residing with the child in a suburb of Brisbane and was completing the final subject of her masters degree and working for a community group two to four days per week.  Additionally, the mother was working as a cultural performer, in which she also teaches.

7. The father has lived in Sydney since 2013 and as at trial was living in a “granny flat” attached to the house of his employer.  Although previously employed as a tradesman,[3] he reported to Mr C at the family report interview on 6 July 2015 that he has not worked since April 2015 due to stress associated with these proceedings, however intends to establish a business which would require him to travel to Europe or another location overseas for five to six months each year, with the remainder of his time spent living in Sydney.[4]

   [3] Affidavit of Mr C filed on 1 December 2014, report at paragraph 13.

   [4] Affidavit of Mr C filed on 11 August 2015, report at paragraph 14.

8. The mother deposes, and I accept, that her relationship with the father was marred with significant acts of domestic violence perpetrated by the father against her, especially when he was under the influence of alcohol, and including documented threats against the mother’s life.  Details are also provided regarding the mother witnessing the father verbally and physically abusing other people, such as her employer.  A significant incident deposed to, and admitted to by the father in the family report interviews, occurred at the K Hospital on 24 June 2010 and involved the father grabbing the mother by the throat while she was holding the child, spitting at her and pushing her.  A bystander intervened and the police were called.  The mother details that the father was subsequently charged for, and convicted of, the assault and issued with a fine, and this was conveyed by the father to Mr C, the family report writer.  The mother also details that the father has been charged and convicted of stalking and intimidation and has a history of being charged for driving a motor vehicle under the influence of alcohol.

9. The mother deposes to incidents which took place on 15, 16 and 17 September 2012.[5]  The mother deposes to the father sending text messages and leaving voicemails on her telephone over this period threatening to kill her.  For example, on 16 September 2012 at 11:05 am the father left a voicemail as follows:

   Hello [Ms Jacobson] you fucking slut.  I tell you something you know what let’s say that today if you in front of me on my mother’s grave I’m going to eat you alive.  I’m going to eat you alive you fucking slut mother fucker piece of shit slut.  Wait till the day I see you I will show you what I can do and then I go to jail I don’t care about jail but before I go to jail I wanna eat your fucking mother fucking body all up while you alive.  Zakumuk you mother fucking slut.

   [5] Paragraphs 62 to 78 of mother’s affidavit of evidence-in-chief.

10. The father was charged with stalking and intimidation as a result of these incidents by the New South Wales police.

11. I accept the mother’s evidence as to incidents which occurred at E Group where the father was spending supervised time with the child in the months of August, September, October and November 2014.[6]

    [6] Paragraphs 7 to 65 of mother’s affidavit filed on 16 December 2014.

12. The family report of Mr C filed on 1 December 2014 outlines that the father admitted to him the various acts of domestic violence which “‘is always with a woman and with alcohol.  The domestic violence and the drink – I am a champion”’ and that he is “a passionate person”.  The father attributes these acts of domestic violence to his passion, reporting to Mr C “‘if I too [emotionally] warm, I prefer not to have a girlfriend, so no domestic violence.”’[7]

    [7] Affidavit of Mr C filed on 1 December 2014, report at paragraph 15.

13. There have been various protection orders made naming the father as the respondent and the mother as the aggrieved.  The first of these orders was made on 5 March 2008 for a period of two years.  Orders were subsequently made on 19 August 2010, 21 September 2012 and 4 October 2012.  The order of 21 September 2012 also names the child as a person protected by the order, and expired on 20 September 2014.  The updated family report filed on 11 August 2015 indicates that the father consented to a protection order being made in favour of the mother in May 2015.[8]

    [8] Affidavit of Mr C filed on 11 August 2015, report at paragraph 17.

14. On the mother’s version, which I accept, there have been multiple breaches by the father of the protection orders, however the mother has never filed a contravention application.

15. On the material there appears to be contact between the parents within the timeframe of the protection orders that was consented to and initiated by the mother.  While this is the case, on the mother’s evidence the father has harassed her over periods of time with repetitive telephone calls and text messages which are, at times, abusive and requesting that she and the child spend time with him.

Father’s time with the child

1. Interim orders were made by consent on 14 October 2013, which allowed for the father to spend supervised time with the child at a nominated contact centre for two hours per month.

2. The mother’s affidavit of 4 August 2014 details that the father spent time with the child on the following dates, supervised by E Group:

   a)3 November 2013 from 12:30 pm to 2:30 pm;

   b)7 December 2013 from 9:00 am to 11:00 am;

   c)4 January 2014 from 9:00 am to 11:00 am;

   d)2 February 2014 from 12:30 pm to 2:30 pm;

   e)1 March 2014 from 2:00 pm to 4:00 pm;

   f)14 June 2014 from 12:00 noon to 2:00 pm;

   g)14 July 2014 from 4:00 pm to 6:00 pm; and

   h)7 November 2014.

3. In her affidavit of 16 December 2014, the mother deposes that she has facilitated contact between the father and the child outside the contact centre on four various occasions, with such visits being in public places and supervised by the mother.[9]  This includes a visit subsequent to the incident on 7 November 2014, as outlined below.

   [9] Mother’s affidavit filed on 16 December 2014 at paragraph 76.

4. On 25 March 2014 the parties attended a Legal Aid conference and an interim agreement was reached that the father would also spend time and communicate with the child via Skype or telephone on Wednesdays and Sundays for up to half an hour between 5:00 pm and 6:00 pm.  The mother alleges, and I accept, that the father has addressed inappropriate subjects with the child during this contact, such as taking the child to Sydney or overseas, whether the child eats ham, derogatory comments about the child’s nanny, attempting to engage the mother in the conversations, and refusing to allow the conversation/session to end.

Care arrangements at trial

1. It is undisputed that the mother has been the child’s primary carer since birth.

2. The mother and child live in a house in a suburb of Brisbane.  The maternal grandmother also lives with the mother and child throughout the week.

3. The mother has employed the services of a nanny, who is a retired registered nurse, to assist in caring for the child and has done so since the child was 18 months old.

4. The mother has attempted to facilitate time between the father and child from an early age, despite the difficulties that have arisen associated with the father’s behaviour towards the mother.  The affidavit material of the mother filed on 4 August 2014 contains acknowledgements by the mother of the importance of the child having a relationship with his father, however subsequent events, as outlined, have caused the mother to change her position.

5. On the mother’s evidence, which I accept, the father’s time with the child has always been sporadic by way of the father’s varying refusals and requests to spend time with the child, including the father taking a number of lengthy overseas trips to visit his other child and family in Europe.  The mother estimates that the father has spent approximately one third of the child’s life overseas.  The mother also details that the father is historically unreliable in making and maintaining arrangements for him to spend time with the child.  I accept that to be so.

Mother’s concerns regarding the father’s behaviour

1. Without being exhaustive as to the concerns raised by the mother in her evidence on this topic, the following aspects are highlighted mainly to demonstrate why it would be contrary to the child’s best interests for the father to share with the mother parental responsibility for the child.

Incident associated with the child eating pork (7 November 2014 incident)

1. The father has previously taken issue with the mother feeding the child pork, despite knowing that it is against the father’s religious beliefs.  The mother admits that the child requests ham and she occasionally has provided it to him.  This appears to be the cause of an aggressive incident which occurred at the contact centre on 7 November 2014, where the father continuously questioned the child about what meats he had been eating and whether he had been eating ham or pork.[10]  When the child confirmed that he had eaten ham, the father became emotional and left the contact centre to smoke a cigarette.  After returning, the father pursued his questioning of the child, despite the supervisor requesting him to change the subject, and demanded that the supervisor make notes of what the child had told him.  The father then refused to return the iPad he had previously purchased for the child, which also contained the mother’s personal information.  The father had requested that the mother send the child to this visit with the iPad, as the father wanted to download some games onto it for the child.  It is to be noted that in November 2014 the child was only six years of age.

   [10] Affidavit of Ms D filed on 2 February 2015.

2. The Contact Supervision Report of E Group, attached to the affidavit of Ms D filed on 2 February 2015, notes that the father said to the supervisor, “‘I am going to go for full custody”’, and “‘I am the man…I am in control…Australian women have no respect…I am going to take him [the child] from her [the mother]…I am going to slit her throat like a cobra like the snake in the grass that she is and watch her bleed out.”’

3. The mother and police attended the contact centre, and the father eventually handed the iPad back to the mother.

4. The family reports filed on 19 February 2015 and 11 August 2015 report that the father denies saying to the staff of the contact centre that he wanted to kill the mother however admits to calling her “a snake”.[11]  I accept the accuracy of the records of the contact centre as to what the father said.

   [11] Affidavit of Mr C filed on 11 August 2015, report at paragraph 17.

5. After the events of 7 November 2014, the mother deposes that the father consistently tried to contact her and the child and that the child became unwell and distressed after the visit.  The mother and maternal grandmother also allege that the child threatened the maternal grandmother’s friend on 10 or 11 November 2014, stating “‘I’m going to slit your throat”’[12] and that he “‘…would like to know what it’s like to kill someone.  I would like to know what a heart looks like.”’[13] (emphasis as in original)

   [12] Affidavit of Ms L filed on 15 December 2015 at paragraph 14.

   [13] Affidavit of Ms L filed on 15 December 2015 at paragraph 15.

6. The mother reports that after she became aware of the threats the father made against her some days after 7 November 2014, she applied for a protection order.

Father’s wishes to take the child overseas

1. The mother deposes that the father has expressed a consistent wish to take the child with him to Europe and North Africa, and has said to the mother that he will take him without her consent.  The E Group report, annexed to the affidavit of Ms D filed on 25 August 2014, details that “Mr [Tariq] has been observed to comment on the child travelling to [Europe] with him in the future...”

2. The mother expresses concern that the father will use the passport of his child from the arranged marriage (who lives in North Africa) as a means of travelling with the child outside Australia, if the father were allowed to spend unsupervised time with the child.  I accept that her concern in this respect is firmly held by her and that it is not irrational or baseless.

Father’s wishes to take the child to New South Wales

1. As the father lives in Sydney, the mother is concerned that he will take the child with him to New South Wales without her consent and refuse to return him.  The mother deposes that the father has previously said to her words to the effect “I just want to spend time with my son in Sydney.”  I accept the mother is genuine in her expressed concerns.

Circumcision of the child

1. The mother deposes that the mother and father have been unable to agree on whether to circumcise the child.  The father wishes this to occur in accordance with Muslim/Islamic custom; however the mother’s research indicates that there are Muslim/Islamic people who no longer follow this custom.  On the mother’s version, she also sought the opinion of a urologist in 2014 who advised that, unless there is a medical reason why a child should be circumcised, it was not appropriate in their opinion.[14]

   [14] Affidavit of the mother filed on 4 August 2014 at paragraphs 165 to 169.

2. The mother states that the child has indicated to her that the father wishes to have the child circumcised, with the child saying to the mother words to the effect, “Mum, why does dad want to cut my willy?”  The mother also alleges that the father has said to her that he will have the child circumcised with or without the mother’s permission.

3. In relation to this issue, the psychiatric report of Dr F dated 19 September 2014 notes:

   He [the father] states that even though he would like his son to be circumcised he understands that to do this as a unilateral decision would be classed as assault which would result in him being jailed.[15]

   [15] Psychiatric report attached to the affidavit of Dr F filed on 25 August 2014.

4. Given the evidence as to the father’s proclivity to act as he chooses, I consider that the mother’s concerns about the risk of him acting unilaterally in this respect if given the opportunity are well founded.

Ability/willingness of the father to have regard for the child’s health requirements

1. In the mother’s material she details that the child has been previously diagnosed and suffered from Kawasaki’s Disease, which is best managed by the child having a healthy lifestyle including a low fat and low sodium diet, a smoke free environment and exercise. The mother details that Kawasaki’s Disease is a rare auto-immune condition involving inflammation of the blood vessels, and the child has been hospitalised on two occasions due to the condition.

2. The E Group report indicates that the father smokes cigarettes, and details that the father has supplied the child with a multitude of several foods during the supervised visit.  It is the mother’s position that this has caused the child to become unwell.

3. The mother deposes that the father has indicated a reluctance to follow the advice of the child’s medical practitioners, stating words to the effect “‘Australian doctors don’t know anything.’”[16] (emphasis as in original)

   [16] Affidavit of the mother filed on 4 August 2014 at paragraph 172.

4. The mother reported to Mr C that an order for sole parental responsibility in favour of the mother would ensure that “she can quickly and easily make decisions about such things as [the child’s] health and any treatment he may need.”[17]

   [17] Affidavit of Mr C filed on 1 December 2014, report at paragraph 29.

5. I find that the mother has a good understanding of the condition the child suffers and that she is likely to diligently follow expert medical advice in dealing with it.  I find that the father neither understands or perhaps even accepts that the child has this condition and will more likely than not act as he chooses whether or not that is in the child’s best interests.

Religion

1. The father is Muslim.

2. The mother deposes that she and the child are not members of any faith.

3. It is the mother’s position that the child should be educated about all religions until such a time that he is able to make a decision as to whether he wishes to participate in any type of religion.[18]

   [18] Affidavit of the mother filed on 4 August 2014 at paragraph 194.

Education

1. As at trial the child was attending his local school.

2. The father has paid for the child to attend three terms of language lessons, which the mother is facilitating.

Expert opinions

Family Report of Mr C, psychologist, filed on 15 October 2013

1. In this initial report Mr C reached the following conclusions:

   a)The parties’ brief relationship was characterised by aggression and violence, with the mother as the victim.

   This matter is striking in the nature and extent of the violence between the parents.  I am also struck by the allegations that have been made against [the mother] regarding sexualised behaviour.  These allegations appear to be without any basis in reality.

   b)The father has a history of violence and aggression beyond his relationship with the mother, including propensity to abuse alcohol as the way of managing his emotional experiences.  The father has sought counselling, “…but the psychologist’s report does not suggest that her work with him was anything more than superficial.”

   c)The father was unsure of his plans regarding remaining in Brisbane for the short to medium term and said he may return to Europe in 2014.  The father believed that he and the mother may reconcile, but the mother did not provide any information to suggest that she shares those beliefs.

   d)“Given the violence and aggression that appears to have been such [a] feature of the relationship between the parents, I cannot suggest that an equal shared care arrangement would be appropriate or beneficial for [the child].  [The mother’s] psychological and general emotional health needs to be maintained and there is nothing to be gained by her having any interactions with [the father].  These are parents who will not be able to share responsibility for not only equal care, but also for decision making regarding [the child].  I cannot determine that [the father] has [the child] entirely in mind in his quest to have some authority over decision making for him and in his desire to spend time with him.”

   e)“I have no concerns regarding [the mother’s] continuing capacity to provide care for [the child] or regarding her capacity to facilitate a relationship between her son and his father.  However, neither she nor [the child] would benefit if she had to communicate face-to-face, or via the telephone, with [the father].”

   f)The child had not seen the father for approximately 12 months at the time of the report.  It was recommended that the father spend supervised time with the child at a “…contact centre for the next six months, for up to two hours each alternate week.”  This was based on concern about [the father’s] apparent propensity towards violence and aggression and about the potential unpredictable nature of his behaviour.

   g)The matter should be reviewed in six months.

Updated family report of Mr C, psychologist, filed on 1 December 2014

1. The interviews for the preparation of this report include interviews with the child and observations of the child’s interactions with each parent.  The child is said to have expressed to Mr C that while he spends time with his father each month, he wishes that he could see him “every two days”.  When asked who he would prefer to stay with if he had to spend a night in hospital the child responded that he would prefer the father to stay with him “because he would care for me.”[19]

   [19] Affidavit of Mr C filed on 1 December 2014, report at paragraph 43.

2. Mr C concludes, in summary:

   a)The parents remain in dispute, including regarding the issue of circumcising the child.  The father has been spending supervised time with the child at a contact centre for two hours per month.

   …I have reviewed the report made by the supervising staff member of the contact centre.  Although the interactions that are reported seem to be generally positive, [the father’s] repeated problems with punctuality and his making of telephone calls and the breaks he takes from being with [the child] do not indicate to me that he is entirely committed to making the most of his time with his son.  It also seems that he frequently [g]ives [the child] sweets and gifts to facilitate his engagement with him.

   b)Each parent’s version of the relationship between the mother and father is inconsistent.  The father states that they had sexual relations in January 2014 and may reconcile.  The mother has not said anything to suggest that and remains confused, anxious and fearful.

   When I interviewed [the father] for this current report, he admitted to me that he has been violent to women in the past, when he has been intoxicated with alcohol.  He also stated that because he no longer consumes alcohol, he will no longer be violent towards women.  I note that when he placed his hands around [the mother’s] throat at the [K] [h]ospital in late 2009, or 2010, there were no indications that [the father] was affected by alcohol.  I therefore do not accept that if [the father] is no longer consuming alcohol, he no longer has a propensity towards domestic violence.

   c)Agree with the conclusions of Dr F (below) regarding the father’s “‘significant cultural and religious bias against [the mother]’” and that his behaviour must be seen “‘in the context of his cultural background with him having sets of beliefs about how the child should be raised and his desire for the child to be raised a Muslim and to be circumcised.’”  Mr C adds, “even if [the father] believes he is acting in the best interests of his son, he may not always be doing so.”

   d)There does not seem to be a medical reason for the child to be circumcised.

   e)The child has been witness to significant acts of domestic violence perpetrated by the father against the mother.  Despite being fearful, the mother is moderate in the way she speaks about the father and interacts with him.  She spoke respectfully and thoughtfully of him, even when she was speaking negatively of his behaviour

   …neither she [the mother] nor [the child] will benefit if the parents have to interact in order for [the child] to spend time with his father.  Additionally, there are still no suggestions that [the child] would benefit if his parents are required to share decisions regarding [the child’s] day-to-day life or in reference to more significant matters such as his education and his health.

   f)“[The mother] has continued to provide at least adequate care [for the child] and she has facilitated his relationship with his father, despite her history with him.  I am concerned that if [the child] were to spend time with his father without supervision, [the mother’s] fear and anxiety would affect her to the point that her capacity to provide adequate care to her son would be compromised.  I accept that both [the child] and [the father] were not able to describe each other to me in a manner that suggests that their relationship has reached any level of sophistication.  However, if the requirement for supervision be removed, in order to give the relationship a chance to develop further, I consider that (in addition to the impact on his mother, as noted above), [the child] may not be advantaged by the effect of [the father’s] motivations, cultural and associated belief systems.  Ultimately, the questions associated with these matters must be considered by the Court.”

Updated family report of Mr C, psychologist, filed on 19 February 2015

1. In his “Summary, Conclusions and Opinions” of the report filed on 19 February 2015, Mr C outlines, in summary:

   a)Previous interviews with the child indicates that he enjoyed spending time with his father, “[h]owever, there are strong indications that he has been emotionally harmed by his father’s behaviour on 07-11-2014…” and “[i]f what is reported of the father’s behaviour on that day is accurate, it shows clearly that [the father] continues to have a propensity towards physical and verbal violence and controlling behaviours that he is, in my opinion, not willing to or capable of controlling.”

   b)The father “…continues to exhibit marked narcissistic personality traits and does not demonstrate any empathy or regard for [the mother], beyond his own personal needs.”

   c)“[The mother] has recently more fully understood and accepted the need for her to protect herself and [the child] against [the father], but she remains very mindful of the potential benefits to [the child] of him spending time with his father.”

   d)“I am very concerned that it appears that supervision at a contact centre has not appeared to protect [the child] from his father.  I still cannot recommend that [the child] spend time with his father without supervision and I cannot now determine how [the child] might be protected from his father, even under supervision.”

   e)“…I cannot now recommend that [the child] spend time with his father.”

   f)“Further, I cannot suggest that he ([the child]) communicate with his father via Skype or telephone because, once again, I do not consider that his father will be able to control his own behaviour and emotions.”

Updated family report of Mr C, psychologist, filed on 11 August 2015

1. Mr C notes that the father admits to making multiple attempts to contact the mother and child, despite knowing that he is prohibited from doing so.  It is also stated that the father reported having telephone contact with the child two or three times since the last family report interview when he telephoned and spoke to the mother, despite there being orders in place which provides that this was not to occur.

2. In his “Summary, Conclusions and Opinion” Mr C states, in summary:

   a)The father agrees with the proposal for the child to continue to live with the mother, but will not consent to her having sole parental responsibility.  The father also wants to be able to communicate with the mother so that he can arrange with her when and how he might spend time with the child.

   b)The father reported participation in a group-based anger management program; however the most significant thing he learned is that it is not always men who are the perpetrators of domestic violence.

   c)The father is of the belief that if he can communicate with the mother she will, within two years or so, come to understand that she has misjudged him.  This is in stark contrast to the father freely admitting that he repeatedly verbally abused the mother and “…had needed to drink alcohol, because she had not done what he had wanted her to do.”  The father continues to contact the mother, despite a protection order being in place prohibiting him from doing so, and sees no reason for the mother to be afraid of him.

   d)In relation to the issue of parental responsibility, the father was adamant that he would not consent to the mother having sole parental responsibility, with the only reason for such refusal being because he is the child’s father.  Significantly, Mr C writes:

   …Based on the extensive amount of information available to me, which has come to me over an extended period of time, but most fundamentally from what I have learned from what [the father] has reported to me himself – in his own words, I have been able to form the opinion that [the father] continues to want shared parental responsibility for his son because he cannot give up such responsibility to a woman whom he cannot control.  That is, it is not because he has [the child] in mind.  It is because he cannot relinquish control to a woman he cannot control and he has virtually told me this in his own words.  I also have the opinion that [the child] is merely incidental to [the father’s] greater aim of exerting and asserting his will and control over [the mother], who has, as this matter has progressed, matured and become a lot more insightful and authoritative about the influence [the father] has had upon her.

   e)The mother continues to be remarkably empathetic towards the father in her understanding of the child’s relationship with the father, however remains vulnerable to his influence.  The mother accepts that the child and the father love each other, but now accepts that she needs protection from the father.

   f)Mr C stands by the recommendations contained in the report filed on 19 February 2015.  The father has not developed any understanding of the potential or real impact upon the child and the mother of the father’s behaviour.  Any opportunity the father might spend with the child will represent an opportunity to exert his will over the mother, via the child, and will challenge the mother’s personal resources to the point that her role as primary carer for the child is likely to be compromised.

   g)There is nothing to suggest that the child will not continue to thrive in the care of the mother should he not spend any time at all with the father.

   h)Mr C reiterates that he is not aware of any supervision model or facility that will protect the child and the mother from the substantial risk of physical and emotional harm that he believes the father represents to them.  Mr C also stands by his previously stated opinion that the child will not benefit from spending time with the father by Skype or telephone.

3. In my judgment these opinions expressed by Mr C in his final report are compelling.  Mr C has made observations over a lengthy period for his reports.  His opinions are, in my judgment, well-reasoned and logical.  I accept these opinions.

Psychiatric report of Dr F, psychiatrist, regarding the father filed on 25 August 2014

1. It is noted that the father believes the mother is withholding the son due to the father’s refusal to marry her.

2. Dr F concludes, in summary:

   a)The father “does not require treatment for a major axis 1 psychiatric disorder.  He has significant cultural and religious bias against [the mother] and has demonstrated previous antagonism towards her, believing the system to be manifestly unfair and biased against him.”

   b)The father displayed significant anti-social behaviour with regard to the mother.  The father refuses to accept this behaviour as particularly unusual or that his behaviour would represent a threat to the child.

   c)“With respect to [the father’s] behaviour, it must be seen in the context of his culture background with him having sets of beliefs about how the child should be raised with his desire for the child to be raised a Muslim and to be circumcised.”

   d)At the present time the father is seeking to see his son under supervision at a contact centre, and there is no reason to change this until he can be assessed as being more appropriate in his dealings with the mother and the child.

   e)There should be no contact between the mother and the father due to the repeated and documented history of violence.

   f)Recommendation for a family report to be conducted serially to ascertain the progress of the father and assist the Court with their decision in this matter.

Psychiatric reports of Dr F, psychiatrist, regarding the mother and father, filed on 10 September 2015

1. In relation to the mother, Dr F concludes that “…she is of sound mind and capable of having an ongoing loving and functional relationship with her son and I make no treatment recommendations for [the mother].”

2. Dr F prepared an updated psychiatric report in relation to the father, with interviews being conducted on 2 September 2015.

3. It is noted that the father reports that the last time he saw the child was on 7 November 2014 at the contact centre, however, as outlined above, this is inconsistent with the mother’s account of facilitating time between the father and child on 9 November 2014.

4. The father reported attending anger management and parenting after separation courses through Relationships Australia, as well as attending on a psychologist every two weeks.

5. The father is said to have stated that his position in relation to the care arrangements for the child is that he “…would like to have him [the child] for half the public holidays, half the school holidays sometimes over Christmas and during the Muslim period of laid for 3 days.”[20]  Further, it is stated that while the father would prefer to have unsupervised time with the child, he would accept the Court order regarding supervision for six months in order to demonstrate that he is reliable and consistent and the child enjoys his relationship with the father.

   [20] Report of Dr F filed on 10 September 2015 at page 24.

6. Dr F concludes in relation to the father:

   In terms of his treatment however, I believe it is appropriate for him to attend the Parental Separation course and Anger Management Course in concert with ongoing psychotherapy.  I believe this is the best way for [the father] to attain a degree of insight into his own actions and behaviour so as to modify them such that he is at least in a position to move forward with regard to having contact with his son.

   Subsequently, I believe at this stage [the father] maybe in a position to have a relationship with his son in the future and I believe it is appropriate for this process to occur under supervision however, with regard to the aforementioned factors and longitudinal nature of this case, I believe the final decision with respect to this should be made by the courts.

Findings as to the child’s best interests – s 60CC considerations

1. I am not persuaded by the exhibits tendered by the father in the course of his submissions, that he has actually addressed in real substance the profound deficits he has demonstrated in terms of the family violence he has perpetrated against the mother and his propensity to perpetrate emotional abuse upon the child.

2. In commenting upon the father’s participation in an anger management program Mr C observed:

   I am very struck by the fact that [the father] stated to me that, as a result of his participation in a group-based anger management programme, the most significant thing he has learned is that it is not always men who are the perpetrators of domestic violence.  He has also told me that, if he can continue to communicate with [the mother], she will, within two years or so, come to understand that she has misjudged him.  Meanwhile, he has also freely stated to me that he repeatedly verbally abused her while he has been intoxicated and that he had been very frustrated, and had needed to drink alcohol, because she had not done what he had wanted her to do.  Since the DVO has been in place (May 2105), he has continued to contact her many times, despite knowing that the DVO prohibits him from doing so.  Further, he considers that [the mother] has no reason to be afraid of him.[21]

   [21] Paragraph 34 of Mr C’s report attached to his affidavit filed on 11 August 2015.

3. It is readily apparent that the father defaults to blaming the mother or external influences for his disturbing conduct rather than accepting responsibility.  In terms of exerting control over the mother, a consistent theme of the father’s submissions at the hearing was that if he was afforded sufficient opportunity to do so by spending time with the mother alone, he would be able to repair their relationship.  At one point he suggested that his mother could look after the child for an extended period whilst he and the mother spent time together to work on their relationship by taking a holiday to “Melbourne, or to Sydney, or Bali … to try and make a real relationship.”  Similar themes in his submissions were to the effect that he called the mother “all the time because I do not want to lose her” and “she’s the woman I need … she needs me.”  The father, I find, has demonstrated no insight into his behaviour or the effect of it upon the mother.  He seeks to control the mother.  He refuses to accept that the mother no longer wishes to have a relationship with him.

4. Section 60CC(2A) requires that in applying the primary considerations set out in subsection (2) the Court is to give greater weight to the considerations set out in paragraph (2)(b). That is, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

5. In my judgment, the evidence plainly establishes a need for the child to be protected from at least emotional and psychological harm from being subjected to or exposed to abuse, neglect or family violence in the father’s care or presence.  Not even time spent within a contact centre has prevented the child from being exposed to the kind of emotional abuse as occurred on 7 November 2014.

6. Mr C records:

   42.The information available to me indicates that [the child] has enjoyed spending time with his father.  However, there are strong indications that he has been emotionally harmed by his father’s reported behaviour on 07-11-2014, and at other times.  If what is reported of the father’s behaviour on that day is accurate, it shows clearly that [the father] continues to have a propensity towards physical and verbal violence and controlling behaviours that he is, in my opinion, not willing to or capable of controlling.  It seems that he does not understand or accept the likely effects of this behaviour upon his son or upon [the mother] and also that he is either unable or unwilling to modify his behaviours, even when under supervision at a contact centre.  He is currently very emotionally distressed because he is not able to spend time with [the child] or communicate with [the mother].  I believe that an amount of his distress can be accounted for by his reaction to the control and authority he perceives that [the mother] now has over him and, likewise, that he cannot exert over her.  He continues to exhibit marked narcissistic personality traits and does not demonstrate any empathy or regard for [the mother], beyond his own personal needs.  [The mother] has recently more fully understood and accepted the need for her to protect herself and [the child] against [the father], but she remains very mindful of the potential benefits to [the child] of him spending time with his father.

   43.I am very concerned that it appears that supervision at a contact centre has not appeared to protect [the child] from his father.  I still cannot recommend that [the child] spend time with his father without supervision and I cannot now determine how [the child] might be protected from his father, even under supervision.  I am not aware of a supervision facility or model of supervision that would be able to protect [the child] from his father.  Further, and as noted above, [the father] has not demonstrated that he understands or accepts the impact of his behaviour upon [the child].  I am also very concerned about [the mother’s] capacity to emotionally and otherwise cope should [the child] be again exposed to a risk of harm by his father.  Her previously held fears that [the child] could not be protected from his father at a contact centre have been raised and this has fuelled her anxiety about any time [the child] might spend with his father in the future.

   44.For reasons noted immediately above, and in reference to the information and opinion I have previously provided in the two family reports I have authorised, I cannot now recommend that [the child] spend time with his father.  As I have stated, I do not know how he can be protected from harm at a contact centre…[22]

   [22] Mr C’s report attached to his affidavit filed on 19 February 2015 at paragraphs 42, 43 and 44.

1. I have already recorded my acceptance that what is reported of the father’s behaviour by the contact centre on 7 November 2014 is accurate.  I accept Mr C’s opinions.

2. In my judgment, the following further opinion expressed by Mr C, which I accept, is of critical importance:

   …Additionally, I am more convinced that [the father] is not as interested in [the child] and his relationship with him as he is in being able to exert control and his will and influence over [the mother].  Any time he might spend with [the child] will represent an opportunity for him to exert his will over her, via their son, and this will challenge her personal resources to the point that her role as primary carer for [the child] is likely to be compromised … I am not aware of any supervision model or facility that will protect [the child] and his mother from the substantial risk of physical and emotional harm that I believe [the father] represents to them.  I also stand by my previously stated opinion that [the child] will not benefit from spending with his father via Skype or telephone.[23]

   [23] Mr C’s report attached to his affidavit filed on 11 August 2015 at paragraphs 37 and 38.

3. The evidence, which I accept, is that the child has thrived in his mother’s care.  In my judgment there is a significant risk that the mother’s capacity to perform her role as the child’s primary carer would be compromised if the father has any opportunity via orders for time and communication with the child, to attempt to exert his influence over the mother quite apart from the risk of him perpetrating acts of harm.  Plainly, that would be contrary to the child’s best interests.

4. In my judgment, it cannot be concluded that the child has a meaningful relationship with the father nor that there would be a benefit to the child of having a meaningful relationship with the father.  In my judgment, a meaningful relationship in the sense of something which is positive and of benefit to the child is unlikely given the father’s views and beliefs and preparedness to exert his influence and control in pursuit of those beliefs.  Moreover, I consider that the evidence well establishes that the father is more interested in exerting control over the mother than he is in pursuing a meaningful relationship with the child.  Finally, even if it could be concluded that there was some benefit to the child of having a meaningful relationship with the father, that consideration is greatly outweighed by the need to protect the child from harm that pursuit of that perceived benefit would entail.

5. Whilst the child has historically expressed some positive views about his father, there is no suggestion that at the child’s age and level of maturity and level of understanding that any weight should be given to the child’s historical views within the meaning of s 60CC(3)(a).

6. In terms of the nature of the relationship of the child with others, there is no doubt that the mother is the child’s primary attachment figure and that the mother has performed the role of primary carer throughout the child’s life.  There is also evidence, which I accept, that the child has an attachment with the maternal grandmother. 

7. The child’s relationship with the father, given the history, could not be said to be an established relationship.  Even in one of his earlier reports, Mr C observed:

   …I accept that both [the child] and [the father] were not able to describe each other to me in a manner that suggests that their relationship has reached any level of sophistication…[24]

   [24] Mr C’s report attached to his affidavit filed on 1 December 2014 at paragraph 51.

8. Relevant to s 60CC(3)(c) is the extent of the father’s absences overseas for regular and prolonged periods. At paragraph 122 of her affidavit of

   
   

   evidence-in-chief the mother sets out the periods of the father’s absences overseas for such extended periods which have regularly occurred throughout the child’s life.

9. The evidence of Ms D (affidavit filed on 2 February 2015) confirms that even when supervised visits at E Group commenced pursuant to orders made by this Court, even though he was only spending time with the child for approximately two hours per month, the father was late for all scheduled visits and was observed to leave visits to go outside to have a cigarette.

10. In contrast to the father, the mother has taken full responsibility for the child’s care and wellbeing since his birth, and she has been primarily responsible for decision making.

11. Whilst both parents have maintained the child, the father has paid limited child support with the mother otherwise being responsible for the child’s financial support.

12. In terms of the orders sought by the mother and as they are supported by the ICL for there to be no orders for time and communication with the father, such orders would, in practical terms, effect little change for the child given the father’s limited involvement in the child’s life.  The child’s main experience of the father has been the relatively short period of supervised time which occurred at a contact centre which of itself produced some emotional harm to the child.  The father consented to an order that he spend no time or communicate with the child historically and for a significant period now that has been the child’s experience.

13. In short, orders in terms of those sought by the mother and the ICL are unlikely to have any significant effect on the child’s current circumstances.

14. In terms of the capacity of each of the child’s parents to provide for the needs of the child, including his emotional and intellectual needs, the evidence establishes, as earlier referred to, that the mother is able to provide for the physical, emotional and intellectual needs of the child.  For the reasons already discussed, it cannot be concluded that the father has the capacity to provide for the emotional and intellectual needs of the child. 

15. In terms of the child’s cultural orientations, obviously the child has both Australian and European/North African origins.  The mother has historically supported the child undertaking language lessons and historically the child has communicated with his cousins in Europe via Skype.  The mother’s evidence confirms that she prepares North African food for the child from time to time and also plays the child North African music.  The mother has her own experiences in North Africa which she shares with the child. 

16. Whilst it must be recognised that orders for no time or communication may well mean that the child does not have the experience of his father’s culture and traditions, that unfortunate disadvantage is, in my judgment, well and truly outweighed by the disadvantages to the child of being exposed to the father’s views and beliefs, which the evidence demonstrates he historically has been willing to freely share with the child.

17. In terms of the attitude to the child and the responsibilities of parenthood demonstrated by the mother, it is clear that historically, despite the challenges the father’s behaviour presented, the mother supported the child having some relationship with the father until the point was reached that the mother recognised the overall disadvantages to the child, and herself, of that.  In contrast, there can be no confidence about the father having a positive attitude to the child or to his parenting of the child.  Indeed, I have accepted Mr C’s opinions to the effect that the father is more focused upon the child as a means to exert influence and control over the mother than he is in the father-child relationship per se. 

18. There is, in my judgment, significant evidence as earlier referred to of family violence perpetrated by the father involving the child and the mother, as a member of the child’s family, within the meaning of s 60CC(3)(j). I accept the mother’s recounting in her affidavit evidence of the history of family violence perpetrated by the father. Reference has already been made to the feature that some five separate protection orders have been obtained against the father since 2007 with a final order being in place. It bears repeating that in 2010 the father was charged and convicted of assaulting the mother, and likewise in 2012 the father committed the offences of stalking and intimidation in relation to the mother.

19. It is clear that as was observed by the Full Court in Goode and Goode (2006) FLC 93-286, the 2006 amendments to Part VII of the Act reflect the legislative intent that both parents of a child ought have a meaningful involvement in the life of that child, but this is subject to any need to protect the child from harm in the best interests of the child. In my judgment, the s 60CC considerations overwhelmingly fall in favour of the orders sought by the mother and by the ICL charged with the statutory obligation to represent the child’s interests in the proceedings.

20. In my judgment, any orders for time and communication in this case would yield significant risks to the child’s welfare.  Those risks include that it would be more likely than not that the child would be exposed to, at the least, emotional harm of the kinds as has historically occurred even in a supervised contact setting.  More fundamentally, Mr C has expressed views, which I accept, as to the potential for the mother’s primary care role being compromised if she is to have any involvement in supporting any regime for time and communication between the child and his father.

21. In my judgment, the relevant s 60CC considerations overwhelmingly favour the orders which are sought by the ICL and the mother. Those orders include orders for the mother to have sole parental responsibility for the child. Given the history of family violence as referred to, there is no suggestion that the presumption in s 61DA of the Act applies. In any event, in my judgment it would be contrary to this child’s best interests for there to be an order other than the mother having sole parental responsibility for the child.

22. For these reasons I make orders in terms of the orders sought by the mother and the ICL.

Costs

1. Having regard to the costs orders I made in favour of the mother and the ICL on 12 February 2015 in respect of those parties’ costs thrown away as a result of the adjournment of the two day trial set down to commence on that day; and the fact that the father did not ultimately seek to challenge any witness or evidence in the case of the mother or that of the ICL (which thereby significantly shortened the proceedings) I do not consider that any further costs orders against the father are justified.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 19 January 2017.

Associate:

Date:  19 January 2017