TARIQ & TARIQ

[2020] FamCA 1004

FAMILY COURT OF AUSTRALIA

TARIQ & TARIQ [2020] FamCA 1004

FAMILY LAW – PARENTING – father seeking order for equal shared parental responsibility – mother seeking order for sole parental responsibility – mother persisting in unsubstantiated allegations that the father sexually abused one of the children – allegation baseless – mother denying time between children and the father for two years – family consultant favouring ICL’s proposal for the father to have time with the children and equal shared parental responsibility for the children – mother failing to participate in proceeding – trial conducted on an undefended basis.

Family Law Act 1975 (Cth), ss 60CC, 61DA, 102NA

Re F: Litigants in Person Guidelines (2001) 27 Fam LR 517

APPLICANT: Mr Tariq

RESPONDENT: Ms Tariq

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 862 of 2019

DATE DELIVERED: 30 November 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Wilson J

HEARING DATE: 20 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: Not applicable

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: Not applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms A. Goldsworthy

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

Orders by consent of the applicant and ICL

1. All current parenting orders are discharged.

Parental Responsibility

1. The mother and the father have equal shared parental responsibility for the children –

   X born … 2004;

   Y born … 2006;

   Z born … 2008;

   W born … 2010; and

   V born … 2011

   (“the children”).

Care arrangements

1. The children live with the mother.

2. Upon compliance with order 17 herein (“the meeting with the family consultant”), the children spend time and communicate with the father as follows –

   (a)commencing on the first Saturday and Sunday subsequent to the meeting with the Family Consultant –

   (i)W and V to spend supervised time with the father on each Saturday from 10.30am to 12.30pm with the children to be collected from and returned to the mother’s house, for a period of 6 weeks. The supervisor will be Ms D of C Services (…) with the costs of supervision to be met by the father. Ms D will meet with W and V at school prior to the commencements of these visits to introduce herself to them. Ms D shall collect W and V from the mother’s home and return them to the mother’s home.  In the event that Ms D is unable to supervise these visits then the independent children’s lawyer will nominate a supervisor;

   (ii)X, Y and Z spend time with the father on Sunday each week from 10am to 1pm, for a period of 6 weeks. The Father will collect the children from the mother’s house at the commencement of time and return them to the mother’s house at the conclusion of time; and

   (iii)as otherwise agreed between the parties;

   (b)       commencing 6 weeks later as follows –

   (i)X, Y, Z, W and V spend time with the father every Saturday from 10am to 1pm for a further 4 weeks. The father will collect the children from the mother’s house at the commencement of time and return them to the mother’s house at the conclusion of time; and

   (ii)as otherwise agreed between the parties;

   (c)       commencing 4 weeks later as follows –

   (i)X, Y, Z, W and V spend time with the father every Friday from 6.00pm to Saturday 5.00pm. The father will collect them from the mother’s house and return them to the mother’s house at the conclusion of the time; and

   (ii)as otherwise agreed between the parties; and

   (d)       by telephone or video link as follows –

   (i)on Monday between 6.00pm and 6.30pm; and

   (ii)as otherwise agreed between the parties or in accordance with the children’s wishes;

   the mother to facilitate and actively encourage any of the children to make a phone call to the father at all reasonable times in accordance with their wishes.

Communication between the parents

1. The mother and father communicate by email or text message about matters relating to the children’s care, welfare, and development or by telephone when urgent communication is required.

2. The mother and father must –

   (a)keep the other advised at all times of each other’s current residential address, mobile telephone number and email address;

   (b)advise the other immediately in the event that the children or any of them suffers any serious illness or injury, including details of any treating medical professional, or hospital to which the child is taken or admitted;

   (c)authorise any school at which the children or any of them may attend from time to time to –

   (i)provide both parents, at their expense, copies of all school reports, school notices., school notices, school photograph order forms in relation to the children;

   (ii)communicate with both parents either by telephone, in writing, or by personal attendance, in respect of the children’s progress at the school; and

   (iii)attend all school functions to which parents are normally invited; and

   (d)ensure that the children attend all agreed extra-curricular activities scheduled whilst the children are in their respective care.

3. The mother shall forthwith sign all such documents and do all such things to ensure that the father is listed as an emergency contact at all schools attended by the children.

4. The mother obtain the father’s consent prior to changing the children’s school. 

5. The mother and father comply with all and any requests of any schools attended by the children with respect to any assessment of the children’s educational and psychological needs.

6. The independent children’s lawyer must provide copies of this order to the children’s schools.

7. The father has liberty to provide a copy of these orders to any one of more of the following –

   (a)the principal of any school attended from time to time by any of the children; and

   (b)any medical practitioner, psychologist, or allied health professional attending upon any one or more of the children, the mother, or the father.

Injunctions

1. Each parent is restrained from –

   (a)discussing with the children this court proceeding or showing them or any of them any documents filed or prepared in connection with this proceeding; and

   (b)speaking in a derogatory and/or disparaging way about the other parent or any of their loved ones in the presence or hearing of the children, and from permitting any other person to do so.

2. The father and mother and their servants and agents are restrained from removing or attempting to remove or causing or permitting the removal of the children out of the state of Victoria or the Commonwealth of Australia without the consent of the other parent.

3. The Australian Federal Police give effect to the preceding order by placing the names of the said children on the airport watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the airport watchlist until 4pm on 1 January 2022.

4. The mother provide to the father one months’ notice in writing if she intends to move to a new address greater than 20 kilometres from her current residential address.

5. The order of the court appointing the independent children’s lawyer is discharged on 31 January 2021.

6. The final orders shall be explained to the children and the father by the family consultant in the presence of the independent children’s lawyer and the Mother shall ensure that she attends with the children at 2.00pm on 10 December 2020 at the Family Court of Australia, Melbourne or in accordance with any other request made by the family consultant.

Orders of the court

1. On or before 4pm on 28 December 2020 the father must file and serve any further evidence on which he wishes to rely in relation to his s 79 application;

2. On or before 4pm on 25 January 2021 the mother must file and serve any further evidence on which she wishes to rely in relation to her contentions in the s 79 application; and

3. The further hearing of the s 79 application is adjourned for mention at 9am on 28 January 2021.

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 & Tariq 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 MELBOURNE

FILE NUMBER: MLC 862 of 2019

Mr Tariq

Applicant

And

Ms Tariq

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The applicant father has not seen his children since 19 December 2018.  The respondent mother has prevented his interaction with his children.  In May 2020 the respondent was arrested by the Australian Federal Police and brought before this court.  Since 13 July 2020 the respondent has not engaged in this litigation at all.  On 20 November 2020 I heard on an undefended basis the father’s application for an order for equal shared parental responsibility and for time.  The family consultant gave evidence wholly supportive of the applicant’s applications.

2. For the reasons that appear at the commencement of these reasons for judgment I have made orders in accordance with the urgings of the ICL, themselves consistent with the evidence of the family consultant.

3. The s 79 application was adjourned.

Some relevant background

1. It is necessary to record certain details about the parents and their children.  To that I now turn.

The mother and father

1. The applicant was born in the Country F.  He entered Australia in 2001.  He is now an Australian citizen.  The respondent was also born in the Country F.  She is also now an Australian citizen.  They married in 1999 but did not commence cohabitation until 2001.  The applicant initially trained in religious studies then he studied teaching.  The respondent worked for a time at K Organisation.  The applicant gave his current occupation as a driver.

The children

1. The children of the parties’ marriage currently attend primary or secondary school.  They are –

   X, a secondary school student;

   Y, a secondary school student;

   Z, a primary school student;

   W, a primary school student; and

   V, a primary school student.

The applicant’s evidence

1. In his affidavit made 28 January 2019 the applicant deposed to his having a loving and caring relationship with his children prior to his separation from the respondent in late 2017.  The applicant gave evidence in his affidavit that the respondent untruthfully accused the applicant of sexually assaulting the couple’s youngest child, accusations the applicant denied.  He said that since separation his children’s attitude towards him changed and some of his children now do not wish to communicate with him by telephone.

2. The applicant gave evidence in the trial of this proceeding by videolink.  He was not legally represented.  In accordance with the statements in Re F: Litigants in Person Guidelines[1] I explained to the applicant how the trial of the proceeding would unfold.  He told me he understood all that I told him.  Ms Goldsworthy of counsel, who appeared for the ICL asked the father limited questions in answer to which I ascertained that the father’s real purpose in this application was to overcome what he called the mother’s alienation of the children towards the father and that he wanted, as near as could be achieved, a normal father-child relationship with each child.  He said he recognised that by reason of the mother’s persistent denigration of the father since separation, the children may initially be slow to engage with the father.  However, he said he wanted to be involved in all key decision making in relation to the children.

   [1] (2001) 27 Fam LR 517.

3. The father impressed me as being a reasonable and rational person who did not overstate his position.  He conceded that he would act in accordance with the children’s wishes as he said he recognised that the reintroduction of him to his children would or might take a little adjusting.  He said that if his children were opposed to interacting with him, he would be content to communicate with them by correspondence.  He told me that the mother’s assertion of assault upon one of the children was baseless.

The mother’s absence from this proceeding

1. When this proceeding was commenced in the Federal Circuit Court of Australia, the mother appeared before his Honour Judge Blake once only on 14 March 2019.  She did not appear or otherwise participate at interlocutory hearings on 10 May 2019 and 16 July 2019.  On the latter date his Honour transferred this proceeding to this court.  When the case was before Registrar Moser on 6 September 2019 and again on 30 October 2019, the respondent did not appear.  Registrar Moser referred the proceeding to me.  I heard the case on 21 April 2020.  The respondent did not appear.  The respondent did not appear again two days later on 23 April 2020.  I made an order for her arrest.  She was brought before me on 4 May 2020.  She was extremely agitated on that occasion. 

2. It struck me that on 4 May 2020 the respondent was unwilling to engage in the litigation process, that she was convinced that the applicant had sexually assaulted one of the children and that she was unlikely to abide by any court order if she disagreed with such orders.

3. Having regard to the respondent’s comments concerning actual or threatened family violence, I made an order under s 102NA granting legal representation to the respondent.

4. By 13 July 2020 the respondent had taken no steps to lodge her application with Victoria Legal Aid for s 102NA assistance.  I gave her a further 7 days to do that.  In the course of the exchange with the mother on 13 July 2020 I told her the following –

   HIS HONOUR:   Now, Ms Tariq, in the past I ordered you to – or gave you the opportunity to consult Legal Aid so that you could get some help in this case.  I’m giving you seven days to go to G Legal, which Ms Goldsworthy tells me is not far from you, to fill out that form, and I’m going to give you seven days to do it.  Do you say that I should not make that order or do you agree to that order being made?

   And –

   HIS HONOUR:   Ms Tariq, all I want to know is whether you are willing to do what I’ve asked you to do, which is within seven days go to the G Legal so as to complete the section 102NA application form, and then we will talk about your case again after you’ve done that, hopefully, on 27 July, one week thereafter.  Are you willing to do that?

   MS TARIQ:   Well, tell me if it’s – if it’s going to be benefit because I don’t want to waste my time.  Just wasting time.  I’m going to do all the evidence and no-one – they saying that it’s all nothing.  It’s nothing.  It’s – it’s the child protection and the policeman are lying.  Everyone else who’s involved in the case is lying.  So I don’t understand.  What’s the point?

   And once again –

   HIS HONOUR:   Ms Tariq, you would do very well to do as we’ve spent almost three hours this morning talking about, which is for you to get some legal help.  The best way you can possibly equip yourself to put in a way that follows what the Family Law Act says is by getting help to do that.  You have seven days.  And I will hear this case again on 27 July, at 10 am in the morning, to work out whether you have in fact done that.  If you haven’t, as I say, the case will go in a particular direction.  If you have, then the case might go in a different direction with the benefit of you having some legal help.  Do you follow?

   MS TARIQ:   Yes, I – I follow.  I follow.

5. She did not do as she was ordered.  She did not even attempt to obtain legal help.

6. On that same day the mother presented as hyper-aroused and hysterical.  The following are extracts of exchanges with the mother on 13 July 2020 –

   MS TARIQ:   It’s really – I think it’s very bad position because everyone other – this lady, Ms H, the family consultant, actually she lied so much and I just read some of her report.  I couldn’t really bear to read everything because I – because one of the most important thing is about my son, my oldest son, and I told her how – how I actually took him from the – from the – from his school just because of his father, his – his very abusive father, and she didn’t write that.  She write something different.  And she twisted the truth and she was saying about my other son, Y, that some people – someone like this she said he being – actually saying something about his delay in his – in his development and there was nothing there.  She’s lying. 

   It’s actually about my son X because he – he was suffering so much during his childhood because of his father.

   …

   HIS HONOUR:   Please, you’re at risk of becoming hysterical here.  Now, this case is on for trial at the moment.  There are other legal representatives that are on the phone today.  They were expecting you to be ready for a trial.  I certainly was expecting you to be ready for a trial.  You’re not here and I’m wondering why.  So first things first.  Why aren’t you ready to try this case today?  Please tell me the answer to that.

   MS TARIQ:   Because – I’m telling you.  Because – yes, because this Ms H, the person – she – she was going to write – the one who wrote the family report she actually lied very much and she twisted also the truth – manipulate the truth.  So when I – also when – because I went to the court – because  I promised you, remember I promised – I promised you in the court that I’m going, that’s what I told her, and because I want the – the truth to be revealed, to – because I want everything to be – so everyone can listen finally to my kids and hear their wishes and everything, because no one care about them since last year at the starting of the – of the – when my ex-husband started the case. 

   And –

   HIS HONOUR:   I’m having trouble understanding how in all that you’ve just said you are not here today and you have not done what you’ve been asked to do to prepare for this case.  So just      

   MS TARIQ:   What do you mean what I haven’t done?  Because each time I do anything no one cares and when I said please see the – the evidence and they don’t want to see the evidence.  The – the Child Protection they refuse and then I went to the – the –  the police they also refused the evidence, and then also Ms H when I told her, “If you can see the evidence,” she said, no, she’s not going to see the evidence.  And when she saw the evidence my kids – the live evidence she said – she told my son, “You have no evidence.”  When he told her what he – what his dad did to him she said, “You have no evidence.”  So I don’t understand what’s the point for me of appearing and talking and doing all that if no one is going to believe me.  I don’t understand.  I don’t understand anything.

   …

   HIS HONOUR:   You have not filed a single document in this litigation, Ms Tariq, not one.  The case has been on foot since January 2019 and no one knows yet what your evidence is in this case.  If you want to be heard by me, because I’m going to be the judge trying this case, you have to put in print what your evidence is.  That means you can’t talk about it;  you have to put it in writing.  Now, do you intend to do that or not?  Ms Tariq?

   MS TARIQ:   But – but please tell me why – why – but this is too much for me.  If I want to do it’s going to take a lot of time and – and the case is very actually simple and they – they – I don’t need – like I had everything the first time I came to the court.  I had all the evidence with me and I was going to do everything the judge said, but the – the child – the – the independent children lawyer she didn’t talk to my kids for – for more than one year.  I don’t understand what – nothing – like no one actually – there’s something wrong there.  It’s like – because I’m just feeling like I’m wasting my time if I do anything, so what’s the point?  Even if there’s evidence they’re twisting the evidence, so what’s the point doing all these things?

   …

   HIS HONOUR:   Ms Tariq, what the point is you ask. 

   MS TARIQ:   Yes.

   HIS HONOUR:   Okay, I will tell you.  Your ex-husband is asking for orders that you have shared responsibility for your children.  That means he will have time with your children and so will you.  Now, you spent a lot of time telling me last time you were before me, which had to be procured by your arrest, that you fear that your husband is abusing your children.  If you don’t      

   MS TARIQ:   My ex-husband, sorry.  Sorry, it’s my ex-husband.

   HIS HONOUR:   All right.  If you don’t participate in this case, Ms Tariq, I will not have any evidence of your version of events.  Now, it’s very important for you not to just deny that this is all taking place.  You have to actually engage in the process.  Last time I suggested      

   MS TARIQ:   But, you know      

   HIS HONOUR:   Please listen for once.

   …

   HIS HONOUR:    I offered you the opportunity for Legal Aid to provide legal representation for you at no cost to you.  You didn’t take up that invitation.  You did not go and do what you had to do.  Now, there’s only so much that the court can do to help you, but if you don’t help yourself you do not give yourself much of a chance.  Now, at the moment      

   And further on –

   HIS HONOUR:   You will have to become a lot more interested in this case, Ms Tariq.  The other side wants this to be heard without you and without hearing from you.  Now, that to my mind is not an attractive option if you tell me that you want to be heard in this case on evidence and will do as you are required to do to give evidence.  If you don’t and if you do nothing, if you do not participate in this case, then this case will be dealt with in your absence and you will struggle to be heard about not being given a chance.  So I am minded to give you one last chance to participate in this case, but you must file an affidavit or get help.  Now, I’ve given you the chance to get help in the past.  You must actually do something about it.  You have to go and seek some legal aid.  Do you intend to do that?

   MS TARIQ:   But you said it’s free of charge.  They – they sent me a letter it’s going to cost me about 3000.  They said it’s going to cost 3000.  How – you said it’s free of charge.

   HIS HONOUR:   Ms Tariq, are you telling me that you’re not going to do what I’ve offered you to do?  Ms      

   MS TARIQ:   I’m not saying that.  You said it’s – it’s – it’s free of charge and you said that the – that they’re – they’re going to help me.  I mean, if – if this – the one who instructed her at the beginning, the – the children’s lawyer, I was so happy because I thought she really cared about my kids.  She didn’t.  I went to her office.  I went to – to show her all the evidence.  She can take them.  She can see my kids.  And anything I do they – they twist it and they say I’m the one who’s talking to my kids.  I’m the one who’s forcing them to say other thing.  You know, I mean, just – I just want to say something.  You said that they will not be forced to see their father and that was very excellent judgment because that’s – that’s – that’s – that’s justice,  you know.  No one can force kids to do anything what they don’t do – they don’t want to do.

   …

   HIS HONOUR:   Ms Tariq      

   MS TARIQ:   Yes.

   HIS HONOUR:        you should spend less time giving speeches and spend more time focused on what you are required to do in this case if you want to put your best foot forward.  I suggest that you go and attempt to get some legal help.  Now, I’ve offered you before      

   MS TARIQ:   But I don’t trust any one – any one of them, because you said – the children independent lawyer her name is, the children independent lawyer, and she didn’t – she didn’t care about my kids.

   …

   MS TARIQ:   It’s too complicated, the case – the case – if you want – if you want – you say something, Judge.  You said that you would not force my kids.  That’s the most important thing for me.  I don’t want anyone to force my kids.  If they want to go to their father willingly      

   HIS HONOUR:   I’m only talking about the trial of this case, Ms Tariq.  Now, Ms Goldsworthy, are you able to assist Ms Tariq by helping her fill out the 102NA form?  It’s a burden that I don’t want to place on you if you’re unwilling or unable to do so, but if you can that might be a way to move this forward.

   MS GOLDSWORTHY:   Yes, your Honour.  Listening to what the mother has to say it would seem that she has got some lack of understanding of the process.

   HIS HONOUR:   She does.

   MS GOLDSWORTHY:   Now, whether that’s due to the fact that she doesn’t want to be assisted by the process, but there would be – it’s a relatively simple matter to point her in the correct direction.

   HIS HONOUR:   Thank you.

   MS GOLDSWORTHY:   And I can assure the court that my instructor, the independent children’s lawyer, has attempted to be of assistance in this matter.

   HIS HONOUR:   I’m sure that’s the case, but it might be that if Ms Tariq does what she has to do to fill out the 102NA documentation we might be able to get her some legal help and it might in the end help – well, it certainly will help her because it will inject an understanding of the legal process that Ms Tariq may not understand at the moment. 

1. On 27 July 2020 I fixed this proceeding as an undefended hearing to take place on 20 November 2020.  The respondent did not appear on 27 July 2020.

The undefended trial

1. The father’s evidence has been paraphrased above.

2. The father, then unrepresented, told me the main focus of his application was on parenting issues.  He also told me that so far as his property settlement application was concerned, he wanted orders to be released from the mortgage over the former matrimonial home.  He had no evidence that touched upon that issue so I adjourned his property application to enable him to produce such further evidence as he is able on any aspect of his property application.

3. The respondent adduced no evidence on the parenting application at the hearing of the undefended application.

The family consultant’s evidence

1. Ms H, family consultant provided a family report dated 23 June 2020 and she gave viva voce evidence.  Let me first address her family report.

2. Ms H conducted telephone interviews, face-to-face interviews and she read a collection of material in order to formulate her family report.  On 4 June 2020 Ms H conducted telephone interviews with the parents.  On 5 June 2020 Ms H interviewed all children and observed the father interacting with them.  Ms H twice telephoned the ICL.  Ms H also reported that she read certain police records, DHHS records and certain school information.

3. The information recorded in the alphabetical subparagraphs that follow has been extracted from Ms H’s report.  Relevantly synthesised, Ms H stated –

   a)for 18 months prior to her June report, the children had spent no time with their father;

   b)the five children live with the mother;

   c)the mother has not repartnered;

   d)the father has remarried;

   e)the five children were born in Australia;

   f)the parents separated in September 2015;

   g)the mother told Ms H that in 2017 the father sexually assaulted the daughter V on V’s sixth birthday by (so the mother said to Ms H) kissing the daughter on the mouth causing bruising and by (so the mother also told Ms H) “the father administering a garlic and olive oil combination to V’s anus to treat intestinal worms”;[2]

   [2] Paragraph 9 of Ms H’s report.

   h)the mother told Ms H that the father had child abuse material on his computer;

   i)the children had spent no time with the father save for one day in April 2019;

   j)the mother refuses to transport the children so as to enable supervised time to occur between the father and the children;

   k)the father proposed both parents to have equal shared parental responsibility for the children and for the children to spend two days a week with the father whereas the mother did not articulate any proposal;

   l)no family violence intervention orders existed although Ms H reported that the father told her of the existence of disagreements and arguments between the parents;

   m)DHHS information examined by Ms H revealed that DHHS ceased discussions with the children by reason of the mother’s influence over them;

   n)DHHS reported that the mother struggled with her internal conflict over the mother’s wish to keep the children safe while concurrently wanting the children to have a relationship with the father;

   o)DHHS concluded there was not sufficient evidence to substantiate the wife’s allegations of sexual abuse;

   p)DHHS concluded that an allegation that the father had poisoned the children’s food was without evidence;

   q)no involvement of police was recorded; and

   r)there was no ongoing role for children protection.

4. Ms H recorded in detail her telephone interview with the father.  The following matters emerged –

   a)when the mother commenced wearing full face and head covering consequent upon her change in approach to her religious belief, the couple’s styles of parenting changed;

   b)the mother became much stricter in her views and adopted a very religious life and she no longer tolerated certain practices by the father, including drinking Coca-Cola, saying it contained alcohol;

   c)upon the mother taking to the Religious Council allegations of the father kissing the daughter, the Religious Council concluded that the incident was not sexual abuse which the mother did not accept; and

   d)the father told Ms H he was concerned for the mother’s mental health.

5. Ms H recorded in detail her telephone interview with the mother.  The following emerged –

   a)the mother told Ms H that she (the mother) is a victim of a conspiracy who had been “tricked by the court and the ICL”;[3]

   [3] Paragraph 48 of Ms H’s report.

   b)the mother was insistent that the father had sexually abused the daughter;

   c)Ms H stated that she had difficulty engaging the mother in discussions, although the mother spoke with intensity[4] about the daughter having been sexually assaulted by the father;

   d)the mother takes the view that she should be present at all supervised times;

   e)when the mother spoke she was hyper-aroused and she shouted “without seeming to stop for a breath”;[5]

   f)the mother described the father as a narcissist, a paedophile and a psychopath as well as being a liar;

   g)the mother said the children were scared of their father;

   h)the mother told Ms H that the mother was “like a slave to him”;[6]

   i)the mother told Ms H that the mother’s family had turned on her by reasons of the father; and

   j)the mother was unable to remain focused while discussing the children; and

   k)Ms H was highly concerned that the mother continued to be non-compliant concerning court orders.

   [4] Paragraph 51 of Ms H’s report.

   [5] Paragraph 52 of the report of Ms H.  That behaviour corresponded to the way the mother conducted herself before me on 4 May 2020.

   [6] Paragraph 54 of Ms H’s report.

6. Of the mother’s behaviour, Ms H said the following –

   Ms Tariq presented throughout the interview as tangential, expressed conspiracy theories and at times appeared paranoid in her thinking.

7. Ms H reported that the parents do not communicate in relation to the needs of the children.  The mother described the father as a psychopathic paedophile.

8. Ms H reported that the mother unilaterally changed her daughters’ school in favour of a religious education.  Ms H addressed aspects of each child.  It is necessary to address each.

The child Z

1. In her family report, Ms H focused on Z, now 12 years of age.  She said of him –

   a)he described his father as talking “in a mean way”;

   b)he spoke warmly of his mother;

   c)he wished the father would “take care of us more”; and

   d)he stated that he knew his father told lies about the mother’s family because the mother informed Z that the father’s statements were lies.

The child V

1. This child is eight years of age.  Ms H said the following about V –

   a)she likes her mother;

   b)the mother told V that the father “did something not good”; and

   c)she said she did not want to hear her father’s voice.

The child X

1. He is 16 years of age and told Ms H he did not want to see the father.

The child Y

1. He is 14 years of age and told Ms H that he did not want to see the father.  He also told Ms H that he always wanted to have a father in his life.

The child W

1. She is 10, very shy and, according to Ms H, experiences intense separation anxiety.  W shook her head when asked about the father, according to Ms H.

2. Ms H made a collection of observations about the children and their relationships with one another.  Of the more important were the following –

   a)none identified friendships outside their schools;

   b)each said he and she was estranged from the mother’s family;

   c)Y seemed to rarely engage with his siblings;

   d)Z muttered to himself while moving his hands in an odd repetitive manner;

   e)all children but W described their father as physically and at times emotionally absent;

   f)each indicated a willingness to text message the father in the future if he changed;

   g)the children’s interviews appeared scripted at times, each having a strong desire to protect their mother; and

   h)Ms H agreed that a level of influence existed but on the whole the children were genuine.

3. Z was most comfortable of all children with the father and V the least, according to Ms H.  Ms H reported that the mother was angry at Ms H upsetting V.

4. Ms H provided her evaluation.  She appeared to take the view that the mother had succeeded in influencing their views about the father.  She said the following –

   107.The children’s behaviour in these interviews indicated a strong likelihood that Ms Tariq has attempted and succeeded in influencing their views about Mr Tariq, despite their own views about his behaviour as their father. Much of the children’s comments is consistent with the literature on children who have become strongly aligned with one parent. This suggests that they may ultimately reject and resist time with one parent in favour of the other, due to the difficulty of trying to manage their position and loyalties.

5. Ms H observed an inconsistency in the mother’s approach.  It was recorded in the following terms –

   109.Ms Tariq presented as anxious in interview, at times both assertive and despairing. Confusion was evident as she made contradictory statements about Mr Tariq. For example, Ms Tariq was critical of the father as a parent, labelled him with psychiatric diagnoses, accused him of paedophilic behaviours and said the children should be protected from him. These statements were countered with a view that he is the children’s father and they should have a relationship with him.

6. Ms H was critical of the mother.  She said the following –

   113.Ms Tariq presents with a tacit refusal to action any request regarding the children. This is evident in her dogged and relentless refusal to comply with Court Orders, and her persistent refusal as reported in school material to engage regarding the children’s learning needs. Ms Tariq models to the children obstructionist and stalling behaviours, which X and possibly Y have adopted in their own attitudes to school and learning as they have no other role models.

7. So far as equal shared parental responsibility was concerned, Ms H gave evidence that was initially contradictory then she later firmed up on point.  In her report at paragraph 112 Ms H spoke of the mother having sole parental responsibility.  In her viva voce evidence, Ms H said she recommended instead equal shared parental responsibility.  Specifically, Ms H said the following in her viva voce evidence –

   MS GOLDSWORTHY:   So then I’m just trying to assist his Honour in weighing up whether you go with the option of an equal shared parental responsibility order that’s not going to be complied with or an order for sole parental responsibility but with orders to keep the father advised, which also are unlikely to be complied with.  Can you balance up whether they’re almost identical practical situations – that would be the case if either of those predictions are valid?  

   MS H:   Can you just say that again for me?

   MS GOLDSWORTHY:   I’m sorry.  I’ve probably confused you.  So, Ms H, if – we’ve got an order for there to be equal shared joint parental responsibility, which is with a compliant father and the mother would just do what she wants, versus an order for sole parental responsibility but an order – an important order – that the mother keep the father informed about these matters, which is also unlikely to be complied with, aren’t we talking about the same situation?  

   MS H:   It’s quite possible, yes.  Yes.  

   MS GOLDSWORTHY:   So then that then leads me to the question with respect to the concerns that the independent children’s lawyer has about the children being, if you like, just kept out of the father’s life.  Would it be of greater assistance for the children’s relationship with their father if there were to be that order for equal shared parental responsibility in the event that then the parties may – or the children as they become older may engage with the father and welcome his input to those decisions?  

   MS H:   It wouldn’t – it wouldn’t – it – look, it wouldn’t be a – be a bad thing and, you know, given that it has been recommended that the children spend time with their father – start spending time with their father, which is also unlikely, there’s no reason not to go with equal shared parental responsibility and see how that played out if the court is going to order that the children spend time with their father – commence spending time with their father, you know, holding in mind that they haven’t done that for two and a bit years now.

8. Ms H recommended in her viva voce evidence that the father has time with the children, initially supervised.  She said no risk factors had been identified.  She said the children were at risk of suffering emotional harm through the mother’s conduct.

The father’s and the ICL’s proposal

1. Ms Goldsworthy of counsel told me she had conferred with the father and that together, they formulated a collection of agreed minutes concerning equal shared parental responsibility and time for the father to have with the children.  It was as follows –

   Discharge of previous orders:

   1.        All current parenting orders be discharged.

   Parental Responsibility

   2.The Mother and the Father have equal shared parental responsibility for the children –

   X born in 2004;

   Y born in 2006;

   Z born in 2008;

   W born in 2010;

   V born in 2011

   (“the children”).

   Care arrangements

   3.        The children live with the Mother.

   4.Upon compliance with Order 17 herein (“the meeting with the Family Consultant”), the children spend time and communicate with the Father as follows –

   a.Commencing on the first Saturday and Sunday subsequent to the meeting with the Family Consultant –

   i.W and V to spend supervised time with the Father on each Saturday from 10.30 am to      12.30 pm with the children to be collected from and returned to the Mother’s house for a period of 6 weeks. The supervisor will be Ms D of C Services (…) with the costs of supervision      to be met by the Father. Ms D will meet with W and V at school prior to 2 December 2020 to introduce herself to them. Ms D shall collect W and V from the mother’s home and return them to the mother’s home.   In the event Ms D is unable to supervise these visits then the Independent Children’s Lawyer will nominate a supervisor;

   ii.X, Y and Z spend time with the Father on Sunday each week from 10 am to 1 pm for a period of 6 weeks. The Father will collect the children from the mother’s house at the commencement of time and return them to the Mother’s house at the conclusion of time;

   iii.      As otherwise agreed between the parties;

   b.        Commencing 6 weeks later as follows –

   i.X, Y, Z, W and V spend time with the Father every Saturday from 10 am to 1 pm for a further 4 weeks. The Father will collect the children from the Mother’s house at the commencement of time and return them to the Mother’s house at the conclusion of time;

   ii.        As otherwise agreed between the parties;

   c.        Commencing 4 weeks later as follows –

   i.X, Y, Z, W and V spend time with the Father every Friday from 6.00 pm      to Saturday 5 .00 pm. The Father will collect them from the Mother’s house and return them to the Mother’s house at the conclusion of the time;

   ii.        As otherwise agreed between the parties;

   d.        By telephone or video link as follows –

   i.         On Monday between 6.00 pm and 6.30 pm;

   ii.As otherwise agreed between the parties or in       accordance with the children’s wishes;

   The Mother shall facilitate and actively encourage any of the children to make a phone call to the father at all reasonable times in accordance with their wishes.

   Communication between the parents

   5.The Mother and Father communicate via email or text message about matters relating to the children’s care, welfare, and development or via telephone when urgent communication is required.

   6.        The Mother and Father shall –

   a.Keep the other advised at all times of each other’s current residential address, mobile telephone number and email address;

   b.Advise the other immediately in the event that the children or any of them suffers any serious illness or injury, including details of any treating medical professional, or hospital to which the child is taken or admitted;

   c.Authorise any school at which the children or any of them may attend from time to time, to –

   i.Provide both parents, at their expense, copies of all         school reports, school notices., school notices, school      photograph order forms in relation to the children;

   ii.Communicate with both parents, either by telephone,      in writing, or by personal attendance, in respect of the          children’s progress at the school; and

   iii.Attend all school functions to which parents are    normally invited;

   d.Ensure that the children attend all agreed extra-curricular activities scheduled whilst the children are in their respective care.

   7.The mother shall forthwith sign all such documents and do all such things to ensure that the Father is listed as an emergency contact at all schools attended by the children.

   8.The Mother obtain the Father’s consent prior to changing the children’s school. 

   9.The Mother and Father comply with all and any requests of any schools attended by the children with respect to any assessment of the children’s educational and psychological needs.

   10.The Independent Children’s Lawyer shall provide copies of this Order to the children’s schools.

   11.That the Father shall be at liberty to provide a copy of these Orders to any one of more of the following –

   a.The Principal of any school attended from time to time by any of the children;

   b.Any medical practitioner, psychologist, or allied health professional attending upon any one or more of the children, the Mother, or the Father.

   Injunctions

   12.      Each parent is restrained from –

   a.Discussing with the children these Court proceedings, or showing them or any of them any documents filed or prepared in connection with these proceedings; and

   b.Speaking in a derogatory and/or disparaging away about the other parent, or any of their loved ones, in the presence or hearing of the children, and from permitting any other person to do so.

   13.The parents are restrained from removing the children out of the state of Victoria or the Commonwealth of Australia without the consent of the other parent.

   14.The Mother provide to the Father one (1) months’ notice in writing if she intends to move to a new address greater than 20 kilometres from her current residential address.

   15.      The Airport Watchlist remain in place until 2022.

   16.That the Order of the Court appointing the Independent Children’s Lawyer be discharged on 31 January 2021.

   17.The final orders shall be explained to the children and the Father by the Family Consultant, in the presence of the Independent Children’s Lawyer and the Mother shall ensure that she attends with the children at 2.00pm on 10 December 2020 at the Family Court of Australia, Melbourne or in accordance with any other request made by the Family Consultant.

   18.The father shall within one month of date of these orders file and serve any further material in relation to his property application and all extant applications are otherwise adjourned to 28 January 2021.

   NOTATIONS

   AND THE COURT NOTES

   A.The initial orders for the Father’s time with W and V to be supervised as a way of re-introducing the Father back into their lives and not because of any risk issues.

   B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligation these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

1. The mother offered no proposal.

2. As is apparent from the joint ICL’s and father’s proposal, equal shared responsibility is proposed.  It is necessary to say a little about that.

Equal shared parental responsibility

1. During one appearance when the mother had been brought to court after her arrest, I had an opportunity of observing her, albeit under circumstances that were undoubtedly stressful to her.  She presented in an agitated state and informed me on several occasions that the father had sexually abused one of their children.  She said she was unwilling to permit the father to have time with the children.

2. Ms H conducted a thorough examination of the mother’s contention of sexual abuse of V concluding that no evidence supported it.  The mother did not participate in this litigation so I did not have the benefit of hearing from her on point.  Ms Goldsworthy specifically asked Ms H whether Ms H supported the two parents having equal shared parental responsibility having regard to comments in Ms H’s family report to the effect that the mother should have sole parental responsibility.  Ms H made it perfectly plain to me that she recommended equal shared parental responsibility.

3. To my mind, that recommendation was sound.  It reflected good sense.  Ms H did not embrace Ms Goldsworthy’s characterisation of the mother’s conduct as having the form of alienation.  However, the material to which Ms H referred in her report indicated an obsessive attitude displayed by the mother in her disdain for the father.  The mother refuses to concede that her assertions of sexual abuse of V by the father are without merit.  The mother persists in her characterisation of the father as a psychopath, a paedophile and a narcissist.  If she had a basis for making those allegations, she chose not to avail herself of the opportunity of doing so in this proceeding as she has taken almost no step on the many returns of applications to participate in this litigation.  Of course, that is her right.  However, where acceptance of her version of events is premised on her taking steps to file documents giving her version of events and she does not file those documents, she can hardly be heard to complain about the consequences of her non-participation. 

4. So far as s 61DA of the Family Law Act is concerned, the ICL made several submissions of present utility.  They were –

   a)section 61DA requires the court to apply a presumption that it is in the best interests of the child for there to be equal shared parental responsibility;

   b)whilst the family consultant holds concerns that due to lack of parental communication this is not practicable, the independent children’s lawyer considers that the mother’s demonstrated behaviours in removing the children from the father’s life, provides no assurance that she will keep the father informed with respect to any decisions she may make in the event that she has sole parental responsibility despite being ordered to do so.  This is of concern with respect to the children’s education;

   c)the removal of the father’s involvement in such decision making could further the potential for irretrievable parental alienation for the father by the children; and

   d)the family consultant’s recommendation in this regard is not based on any serious allegations with respect to family violence or abuse which might otherwise rebut the presumption.

5. In my view there is merit in those contentions.

6. It seemed to me that no proven risk existed so as to demonstrate that it was not in the best interests of the children for both parents to have equal shared parental responsibility for all five children.

7. So far as the primary consideration set out in s 60CC(2)(a) was concerned, the evidence from Ms H demonstrated the benefit to the children of having a meaningful relationship with both children.  For that matter the wife herself told Ms H that the wife recognised the importance of the children having a relationship with their father as recorded in paragraph 25 of Ms H’s report.  Importantly, Ms H made two further observations in her report.  The first was at paragraph 115 which read as follows –

   The children are socially isolated, they have no maternal family relationships except their mother, and they do not have peer relationships outside of school, nor are they connected to any sporting or extra-curricular activities. Mr Tariq is the children’s father and there are no risk issues identified that would prohibit the re-establishment of the relationship between the children and their father.

8. The second was at paragraph 117.  It is useful to reproduce the whole of that paragraph.  It was as follows –

   117.Ms Tariq’s refusal, combined with the children’s resist and refuse dynamics based on the mother’s view of the situation, may lead to further distress for the children. It is the writer’s view the children should be provided with a further opportunity for Ms Tariq to actively support the children to commence spending periods of time with their father. It is crucial Ms Tariq prioritise the needs of the children and their right to enjoy a meaningful relationship with their father.

9. The primary consideration prescribed by s 60CC(2)(b) related to the need to protect the children from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.  On behalf of the ICL Ms Goldsworthy submitted that in two paragraphs of the family report issues of relevance were identified.  The first was paragraph 113 where Ms H said the following –

   113.Ms Tariq presents with a tacit refusal to action any request regarding the children. This is evident in her dogged and relentless refusal to comply with Court Orders, and her persistent refusal as reported in school material to engage regarding the children’s learning needs. Ms Tariq models to the children obstructionist and stalling behaviours, which X and possibly Y have adopted in their own attitudes to school and learning as they have no other role models.

10. The second was at paragraph 114.  There Ms H said the following –

    114.If the children continue to spend no time with their father, the risk to their ongoing development may be significant. The literature is unequivocal that children who spend time with both parents post separation and in the absence of identified risks, are more well-adjusted, show less signs of mental health problems and there is less emphasis on having to care for the favoured parent. Parental separation can adversely affect a child’s social and emotional development, however the literature suggests not spending any time with one parent, in this family, the father, can lead to psychological damage which can become prevalent throughout life.

11. To my mind the observations in both paragraphs are entirely proper and were well made in the circumstances of this case.

12. Section 60CC(3) required an examination of what are described as “additional considerations”.  While lengthy, there is no shortcut available and it is necessary for me to address subsections (a) to (l).  To that I now turn.

13. Section 60CC(3)(a) calls for an examination of the views expressed, relevantly here, by the five children.  As has already been pointed out, the family consultant observed that the children’s “resist and refuse dynamic” mentioned in paragraph 117 of Ms H’s report was based on the mother’s views.  I entertain no doubt whatsoever that over a sustained period of time the mother has influenced each child to hold views that are extremely negative towards the father.  The family consultant took the view that the children were aligned with their mother.  Ms H said the following at paragraph 107 of her report –

    107.The children’s behaviour in these interviews indicated a strong likelihood that Ms Tariq has attempted and succeeded in influencing their views about Mr Tariq, despite their own views about his behaviour as their father. Much of the children’s comments is consistent with the literature on children who have become strongly aligned with one parent. This suggests that they may ultimately reject and resist time with one parent in favour of the other, due to the difficulty of trying to manage their position and loyalties.

14. Ms Goldsworthy submitted that the children’s views were diminished by reason of the mother’s influence upon the children.  There is real merit in that contention, it seemed to me.

15. Section 60CC(3)(b) calls for an examination of the relationship between each child with his and her parents.  Several things must be said of the issue to which this subsection is directed.  First, the mother has neither encouraged nor supported the children’s relationship with their father for almost two years.  Second, according to Ms H, the father’s attitude towards his children is favourable.  Third, the children are allied to the mother.  Fourth, while some of the children recalled the father as having been physically and emotionally absent at times, the children told Ms H who reported at paragraph 87 of her report that they wanted that to change.

16. Section 60CC(3)(c) involves a consideration of the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long term issues concerning the children, spending time with the children and communicating with the children.  The father’s evidence was to the effect that he had been shut out of the children’s lives for almost two years.  To my mind, any failure on his part to undertake the tasks canvassed by s 60CC(3)(c) was the result of a conscious campaign by the mother to deny him any interaction with his children.  The mother’s behaviour in that regard is abhorrent and should not be condoned, especially as the factual basis for her behaviour (evidence of a sexual assault upon V) was entirely unproved.  If any merit existed in the mother’s assertion that she (the mother) was treated like a slave by the father, she failed to participate in this litigation to make good that assertion.  In those circumstances I regard that part of the mother’s evidence as baseless and unproven.

17. Section 60CC(3)(ca) involves questions of maintenance.  No issue arose in this case about maintenance of the children.

18. Section 60CC(3)(d) concerned the likely effect on the child (or here, the children) of any separation.  This subsection was not relevant.

19. Section 60CC(3)(e) raised issues for consideration about the practical difficulty and expense associated with the child or children spending time with a particular parent.  Here, the ICL has advocated that the children be reintroduced to their father, initially involving professional services that are to be at the father’s expense.

20. Section 60CC(3)(f) raises issues about the capacity of each parent to provide for the emotional and intellectual needs of the children.  The family consultant expressed some critical views of the mother on this issue in paragraph 106 of her report.  It was in the following terms –

    106.Ms Tariq has not encouraged and supported the children’s relationship with their father over the past eighteen months. Ms Tariq seems to lack insight about the importance of Mr Tariq’s contribution to X, Y, Z, W and V’s development, future identity, and particularly as an adult male role model for the three boys. It is developmentally normal for X, Y and Z as they move through puberty and adolescence to seek a closer relationship with their father and each indicated in their interview a desire to re-connect with their father when he changes his behaviour.

21. Further, Ms H made observations about the children’s social isolation.  In paragraph 115 of her report, Ms H said the following –

    The children are socially isolated, they have no maternal family relationships except their mother, and they do not have peer relationships outside of school, nor are they connected to any sporting or extra-curricular activities. Mr Tariq is the children’s father and there are no risk issues identified that would prohibit the re-establishment of the relationship between the children and their father.

22. Section 60CC(3)(g) involves an examination of, among other things, the lifestyle and background of the children and the parents.  Ms H gave viva voce evidence to the effect that the mother has increased her religious beliefs.  Some of the children attend religious schools.  Each parent was born in Country F.  The father’s second wife is from Country J. 

23. Section 60CC(3)(h) is not relevant as it relates to aboriginal children or children of Torres Strait Islander heritage.

24. Section 60CC(3)(i) prompted the ICL to make certain forceful, yet proper, submissions.  They were as follows –

    (a)the mother's attitude towards the children is centred on her stated belief that the father is a criminal psychopath and they are to be protected from him, to the extent of having no contact nor relationship with him;

    (b)the father seeks to re-establish his relationship with the children and to actively engage in their lives including making decisions about their welfare and wellbeing;

    (c)the independent children’s lawyer has proposed orders which see the father initially having only quite restricted time with the children, not due to any concerns about his parenting capacity, but in response to the sequence of events, and the passage of time, leading to the children adopting serious resistance towards him, which, it is submitted, arises from the active influence of the mother; and

    (d)the family consultant assesses that the boys are more likely to seek out their father, and that the girls are highly resistant at this time.  Thus, an approach has been taken to differentiate between the sisters and the brothers in the initial time they spend with the father.

25. Section 60CC(3)(j) raised issues of family violence.  No intervention orders were involved in this case.

26. The same comments apply in relation to s 60CC(3)(k).

27. Section 60CC(3)(l) invited a consideration of the making of an order that would be least likely to lead to further litigation involving these children.  Several things must be said about that subsection and its application to the facts of this case.  First, it is highly likely (dare I say, almost certain) that the mother will ignore these reasons and orders I have pronounced.  She is utterly fixated on the father being a psychopath, a paedophile and a narcissist.  She is most unlikely to put steps in train to do anything hereafter to promote the children interacting with the father.

28. Second, contravention applications are likely to follow. 

29. Third, the mother is highly likely to persist in her alignment of the children to her thinking, it being antithetical to the promotion of a balanced, meaningful relationship between the father and the children.

30. I entertain no expectation that these orders will quell the controversy between the parties in this case.  That said, the promotion of the best interests of the children involves doing more than merely accommodating the obsessive and irrational views of the mother towards the father.

31. I make the orders set out above.

Property alteration litigation

1. As has already been mentioned, the father’s application to alter property interests has yet to be heard.  Substantial evidence is missing.  That evidence must be adduced.  To that end I order –

   a)any further evidence on which the father wishes to rely in relation to his s 79 application must be filed and served by 4pm on 28 December 2020;

   b)any further evidence on which the mother wishes to rely in relation to her contentions in the s 79 application must be filed and served by 4pm on 25 January 2021; and

   c)I otherwise adjourn the s 79 application for mention at 9am on 28 January 2021.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 30 November 2020.

Associate: 

Date:  30 November 2020