Wadmal & Amrita (No. 2)
[2008] FamCA 1062
•5 December 2008
FAMILY COURT OF AUSTRALIA
| WADMAL & AMRITA (NO. 2) | [2008] FamCA 1062 |
| FAMILY LAW - CHILDREN - violence directed at adults by father - adverse credit findings against father - relevance to time spent with child - good relationship between father and child - breach of earlier orders for supervised time - allocation of parental responsibility - female circumcision - issue of passport - final orders for residence and parental responsibility - interim order for supervised time at contact centre |
| Family Law Act 1975 (Cth) ss 60B(1), 60CC(1), (2) ,(3), (4) and (4A), 61DA(2), 65DAA(1) and (2) Evidence Act 1995 (Cth) ss128, 140 Summary Offences Act 1966 (Vic) Convention on the Civil Aspects of Child Abduction |
| M and M (1988) 166 CLR 69 |
| FATHER: | Mr Wadmal |
| MOTHER: | Ms Amrita |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 11820 | of | 2007 |
| DATE DELIVERED: | 5 December, 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | BROWN J |
| HEARING DATE: | 17, 18, 19 and 20 November, 2008 |
REPRESENTATION
| COUNSEL FOR THE FATHER: | Mr. Whitchurch |
| SOLICITOR FOR THE FATHER: | Robert Halliday & Associates |
| COUNSEL FOR THE MOTHER: | Mr. Glover |
| SOLICITOR FOR THE MOTHER: | Ryan Carlisle Thomas |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms. Gordon |
| INDEPENDENT CHILDREN’S LAWYER | Goddard Elliott |
Orders
That all parenting orders relating to the child … born … June 2006 and all injunctions relating to the child or the parties be discharged.
That the child live with the mother and she have sole parental responsibility for her.
That until further order the father have no time or communication with the child save pursuant to these orders.
That each of the parties forthwith do all things necessary to apply to use the GordonCare supervised contact facility (or such other facility nominated by the independent children’s lawyer) including, but not limited to, signing all necessary documents and attendance for intake or other interviews.
That in these orders a reference to GordonCare or GordonCare workers shall be taken to be a reference to any other contact service nominated by the independent children’s lawyer to which the parties are to make application and at which the father is to spend supervised time with the child.
That until further order the father have time with the child on each alternate weekend at GordonCare and all costs relating to such supervision be borne by the father.
That the time the father spends with the child at GordonCare shall be :
(a)for the maximum period offered to the parties by GordonCare; and
(b)on either a Saturday or Sunday in each alternate weekend, the day and times to be nominated by GordonCare.
That during all periods of time with the child pursuant to these orders the father be and is, by himself, his servants and agents, restrained from saying to the child or in her presence or hearing, or allowing any other person to say to the child or in her presence or hearing, anything critical of the mother or members of her family.
That the father’s time with the child commence on the first Saturday or Sunday on which GordonCare can provide supervision pursuant to these orders.
That if the father cancels or fails to attend GordonCare on two consecutive visits, without at least 24 hours notice on each occasion, then paragraphs (6) and (7) hereof shall be suspended forthwith, until further order.
That if the father cancels or fails to attend GordonCare, with or without 24 hours notice, for half of the scheduled visits in any ten week period, then paragraphs (6) and (7) hereof shall be suspended forthwith, until further order.
That the father abide by all lawful directions of GordonCare and the supervising worker or workers and by all the terms of his agreement with GordonCare and in the event he fails to comply with a lawful direction and/or a term of his agreement, then paragraphs (6) and (7) hereof shall be suspended forthwith, until further order.
That if GordonCare agrees, the either father’s mother or one of his sisters may accompany the father during periods of supervised time PROVIDED THAT if any such person engages in any behaviour which, if engaged in by the father, would lead to termination of that period of time with the child, the period of time be terminated, and this paragraph shall be suspended forthwith, until further order.
That until further order the husband may communicate with the child :
(a)by no more than one letter in each fortnight and such letter be no longer than two A4 pages; and
(b)by a card and/or small gift on the child’s birthday, Eid-al-Adha and Eid-al-Fitr; and
(c)by telephone on one occasion in each week, the call to be facilitated by the mother between 5:00 pm. and 6:00 pm. on a Wednesday or such other day as the parties agree in writing;
PROVIDED THAT
(d)such letters, cards and gifts be sent by ordinary pre-paid post to an address specified by the mother; and
(e)the mother be at liberty to inspect and withhold any such letter, card or gift if, in her absolute discretion, she believes it represents a risk to the emotional or physical health of the child, and the mother shall forward any item so withheld to the independent children’s lawyer.
That if the child suffers a serious illness or serious injury the mother advise the father as soon as practicable.
That until further order each of the parties be and is hereby restrained by him or herself, and by his or her servants or agents from:
(a)visiting upon the child the act/procedure of circumcision or any other surgical procedure with like effect and allowing any other person to do so;
(b)discussing these proceedings with or in the presence or hearing of the child; and
(c)abusing, insulting, belittling or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the child and allowing any other person to do so.
That until further order the parties by themselves, their servants or agents be and are hereby restrained from removing or attempting to remove, or causing or permitting the removal or attempted removal of the child … born … June 2006 from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the child’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s names on the Watch list until further order of the court.
That as soon as practicable the solicitor for the father serve a sealed copy of this order upon the proper officer of the Australian Federal Police at Melbourne, AND IT IS REQUESTED that Australian Federal Police give force and effect to this order.
That until further order the father be and is by himself, his servants and agents restrained from attending at or within 100 metres of any kindergarten or school attended by the child.
That as soon as practicable the mother authorise the principal of each kindergarten or school attended by the child to send to the father, at his expense (if any) and by ordinary pre-paid post :
(a)a copy of each school report for the child; and
(b)any order form for photos of the child.
That as soon as practicable the mother provide a sealed copy of these orders to the principal of each kindergarten and school attended by the child from time to time.
That the father keep the mother advised, in writing, of a telephone number to which calls can be made pursuant to paragraph (14)(c) hereof and on which he can be contacted, if required, pursuant to paragraph (15) hereof.
That within fourteen days the mother advise the father’s solicitor, in writing, of a postal address to which items can be sent pursuant to paragraph (14)(d) hereof and thereafter advise the father forthwith of any change in that address.
That a copy of the reasons for judgment delivered this day may be provided to :
(a)Ms. D;
(b)Dr. K;
(c)Ms. W;
(d)the principal of a kindergarten or school attended by the child and, in his or her absolute discretion, any teacher or other professional working with the child through the kindergarten or school; and
(e)the Department of Human Services and Victoria Police (in the event further notifications or allegations are made which relate to the parties or the child).
That the applications for orders for residency, parental responsibility and injunctions be otherwise dismissed.
That the question of the father’s supervised time and communication with the child, and the mother’s application for the issue of a passport for the child and to remove her from the Commonwealth of Australia, be otherwise adjourned to 4 December, 2009 at 11:00 am.
That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
IT IS NOTED that publication of this judgment under the pseudonym Wadmal & Amrita is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 11820 of 2007
| MR WADMAL |
Father
And
| MS AMRITA |
Mother
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
Mr Wadmal (“the father”) and Ms Amrita (“the mother”) have a two and a half year old daughter (“the child”). The child presently lives with her mother and spends time with her father on two days a week, supervised by his mother, the paternal grandmother Mrs Z. The court is asked to determine what time the child should spend with her father in the future (if any), who should have parental responsibility for her and whether the mother should be allowed to obtain a passport for her, and travel overseas with her.
The parties’ accounts of events which occurred prior to, during, and after, their marriage have little in common. The evidence of three expert witnesses (a psychiatrist, a psychologist and a social worker) was that a critical question to be determined is who is telling the truth. This is not a case in which discrepancies in evidence can be attributed to the passage of time or reconstruction through a lens of acrimony or the colouring of events to put a party in a better light. It is trite to say that a witness who takes an affirmation or oath to tell the truth, the whole truth and nothing but the truth, is under an obligation to do so, but from the commencement of the trial neither party could have been in any doubt that findings as to his or her truthfulness would radically influence the outcome.
I am satisfied the mother complied with her oath; she told the truth. I am satisfied the father had little regard for the affirmation he took and lied as and when it suited him. To support him, his mother and his sister, Y, were also prepared to lie to the court. I will expand on those findings later in the judgment.
PARTIES
The father was born in August, 1982 and migrated to Australia with his family in 1998, after time in the Middle East, the U.S.A. and Europe. He has four sisters and one brother; three of his sisters live with their parents in the south eastern suburbs and his brother lives in Perth. The fourth sister swore an affidavit which was filed in his case earlier in the proceedings but is apparently now estranged from the family. He lives alone in rented accommodation in Melbourne’s west and is studying psychology and social science full time at University. He hopes to complete the course in a year and a half. He is not in paid work and is in receipt of Centrelink benefits and financial assistance from his parents. He described himself as “a reputable Muslim scholar in the Muslim community”.
The mother was born in Australia in November, 1987 of Turkish heritage and has relatives in Turkey. She is the eldest of nine children (the youngest is about nine months old) and lives with her parents, siblings and the child in her parents’ home in V. She is not in paid work and receives Centrelink benefits, plus the minimum child support payment of $27 a month.
The parties and their families are adherents of Islam.
PROPOSALS
The father sought the orders set out in the further amended application for final orders filed by him on 13 June, 2008, with one important variation. In that application he sought that the parties have equal parental responsibility for the child but in the trial he sought full responsibility for issues relating to her education. He sought to spend time with the child on each alternate weekend from 4:00 pm. on Friday until 9:00 am. on Monday, on each alternate Wednesday from 12:00 pm. to 5:00 pm. and on the other Wednesday from 1:00 pm. until 1:00 pm. the following day. He also sought time on the child’s birthday and his own birthday, on Fathers’ Day, on Eid-al-Adha and Eid-al-Fitr and, once the child turned three, for half of all school term and Christmas holidays. The father sought an injunction restraining the child from being brought into contact with active or passive cigarette smoking (an application which was not pressed), that the mother be restrained from denigrating or permitting anyone else to denigrate him or his family in the presence or hearing of the child, and that both he and the mother be restrained from circumcising the child or removing her from Victoria without the prior written consent of the other.
In an outline of case document filed on 6 November, 2008 the mother set out the orders sought by her. She proposed that the parties have equal shared parental responsibility for the child, that the child live with her and that the child spend supervised time with the father, as determined by the court. She sought injunctions restraining both parties from abusing, insulting, belittling or otherwise denigrating the other or any member of the other’s family or household to or in the presence of the child and from visiting upon the child the act/procedure of circumcision or any other surgical procedures with like effect. She also sought that the father sign all necessary documents to enable her to obtain a passport for the child and that the child be entitled to travel in and out of the Commonwealth of Australia.
At the beginning of the trial the mother’s counsel advised that the mother would seek sole parental responsibility for the child and an order that the child spend no time with the father. Pressed in cross-examination, she conceded the potential to share responsibility for some aspects of the child’s long term care, but excluded education.
The submissions of the ICL were dependent on the court’s response to the question : “who is telling the truth?” If the father were assessed as truthful, and the court found that he was not the violent, aggressive, impulsive and dishonest man portrayed by the mother, he should spend time with the child in a phased in regime, culminating, after nine months, in alternate weekends from 10:00 am. Saturday until 5:00 pm. Sunday and on each Wednesday between 12:00 noon and 5:00 pm. On the child commencing school, the Wednesday time should change to her being with him from the conclusion of school on Wednesday until 6:00 pm. Once she is at school, she should also spend half of school holidays and other special days with him. It was submitted that the court should require the mother to undertake therapeutic counselling with a psychologist or counsellor nominated by her general practitioner to assist her in overcoming the fear she holds for her child’s safety. Inherent in the submission was an acceptance of that fear.
If the court preferred the evidence of the mother (which, the ICL submitted, would trigger a diagnosis that the father has psychopathic personality disorder) the court should order that the father spend up to six hours a week with the child, supervised by a contact service or agency nominated by the ICL, the costs of which should be borne by the father. It was the ICL’s submission that the existing orders for the father to spend time with the child should be suspended forthwith and in the period between the end of trial and judgment, his time with her should be supervised at a contact centre. It was conceded that this could mean he spent no time with her, having regard to the delays in obtaining places at GordonCare and other services. The court did not accept that submission.
The ICL did not support the mother’s application for the issue of a passport and submitted that both parties should be restrained from removing the child from Australia, save by order of the court. The ICL supported injunctions relating to non-denigration and circumcision.
LEGAL PRINCIPLES
The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests and reasonably practicable (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests and reasonably practical (s.65DAA(2)).
Section 60B of the Act sets out the objects of the part of the Act dealing with children and the principles underlying them, in these terms :
(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.
(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).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
The objects point the way to an optimum outcome. The first two are picked up in s.60CC(2) as the primary considerations when determining where children's best interests lie. The second is also reflected in the circumstances in which the presumption of equal shared parental responsibility is not to apply, those circumstances relating to findings about violence; see s.61DA(2).
The ultimate and paramount issue to be decided in proceedings for parenting orders is whether the making of the orders sought is in the best interests of the child. The fact that the proceedings involve an allegation of family violence does not alter the paramount and ultimate issue which the court has to determine.
In M and M (1988) 166 CLR 69 (a case in which the High Court considered the core principles in the determination of a case of alleged sexual abuse) the High Court found (at 76) that although findings on the disputed allegation of sexual abuse will have an important, and sometimes a decisive, impact on the resolution of that issue,
…it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318: McKee v McKee (1951) AC 352 at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf J v Lieschke (1987) 162 CLR 447 at pp 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a context between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
By analogy, determination of the allegations of family violence is not of itself determinative of the outcome in this case. Findings in respect of those allegations will be important when deciding whether the presumption of equal shared parental responsibility applies and where the best interests of the child lie; they will be weighed against other findings, within the context of the statutory objects and principles, and the process required by the Family Law Act 1975.
EVIDENCE
The father relied on an amended application filed by him on 11 June, 2008 and an affidavit affirmed by him on 12 November, 2008; an affidavit affirmed by his mother, the paternal grandmother, on 13 November, 2008 and an affidavit affirmed by his younger sister, Y, on 13 November, 2008. In his own affidavit the father referred to an earlier affidavit the mother affirmed on 13 August, 2007, in very similar terms to that affirmed fifteen months later. The father, his mother and his sister were all cross-examined.
The mother relied on an affidavit affirmed by her on 15 October, 2008 and an affidavit sworn by her father, the maternal grandfather, on 10 August, 2008 and resworn in the witness box. Although the mother filed a further amended response to an application for final orders on 17 October, 2008, the orders she sought at trial differed from those set out in that application. The mother and her father were cross-examined.
Before the court were psychiatric assessments of each of the parties prepared by Dr. K and annexed to an affidavit sworn by him on 7 March, 2007. Ms. D prepared a family report in July 2007, annexed to an affidavit sworn by her on 11 July, 2007. Ms. W prepared a Children and Parent Issues Assessment dated 3 July, 2008 which was adduced into evidence. Dr. K and Ms. D were cross-examined. No party sought to cross-examine Ms. W.
Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses. When considering the evidence, the court must have regard to s.140 of the Evidence Act 1995 (Cth), which provides :
140 (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.
In what follows, statements of fact constitute findings of fact.
CHRONOLOGY
The five year age difference between the parties is of some relevance, as they met through an internet chat site when the mother was only fifteen. They met in person on 31 December, 2003, soon after her sixteenth birthday. Her father did not condone the relationship. When she was seventeen and a half she ran away with the father with the intention of marrying but was dissuaded from that course by her father’s reluctant agreement to consider the marriage, if she returned home. He maintained his opposition and, some two months before her eighteenth birthday, the mother and father ran away to Sydney, where they went through an Islamic ceremony of marriage before a religious celebrant to whom they were referred by the father’s father. The cleric was not a registered marriage celebrant and the marriage was not one capable of being recognised under Australian law.
The mother’s evidence was that they left Melbourne for Sydney on 11 September, 2005 and took two days to find the religious leader to perform the ceremony. Her evidence of the departure date is consistent with that of the paternal grandmother, who said that on or about 11 September, 2005 she received advice from her son that they were on the highway on the way to Sydney.
On learning of the departure for Sydney and the subsequent marriage, the mother’s father was, understandably angry and concerned for his daughter. Numerous phone calls were made between Sydney and Melbourne.
The maternal grandfather’s evidence was that on 12 September, 2005, at 11:32 am. the father sent him a text message which read “I’m holding myself from doing something stupid but if you continue to acting like an animal remember you have another 7 kids.” I am satisfied that occurred.
Submitting to the inevitable, the maternal grandfather then arranged a second Islamic marriage ceremony in Melbourne, which took place at his home in September, 2005. A Certificate of Nikah was prepared and signed by the parties, celebrant and two witnesses, but was not dated. The cleric who performed that ceremony was not a registered marriage celebrant; as with the earlier ceremony, it was not one capable of being recognised under Australian law. Some ten days later the parties attended a lavish wedding party at the V Hall, arranged by the mother’s father. Still aged seventeen, the mother moved to live with the father in the northern suburbs.
Letters written by the mother to the father prior to their marriage in 2005, tendered by the father, are those of an immature and unsophisticated school girl, in love with an older man whom she was desperate to please. On pages decorated with hearts and littered with endearments she wrote of her desire to be with him and sought that he be patient in the face of her father’s opposition. In the first letter dated 27 April, 2005 she wrote :
my main reason for writing u a letter is to apologise to y coz I know sometimes Im not obedient but u have to know I try my best.
In July she wrote apologising for things she had said and done to hurt him and promising to change for him; in a letter dated 22 July she wrote “I always wanna be obedient to u” and sought his forgiveness; in another dated 29 July she wrote “just last Friday I was at ur place asking for forgiveness”. No letters from the father were in evidence.
Soon after setting up house together, the mother became pregnant. The father’s evidence was that he never touched her, pushed her, lifted her, carried her or threw her; he denied any verbal or physical abuse. The mother’s evidence was that she found herself living not with the charming and gentle man she believed she was marrying, but with a violent, unpredictable and controlling man. Her evidence, which I accept, was that he physically assaulted her for the first time in about November 2005, when she was two months pregnant. On that occasion he punched her hard across the back of her head with his left fist, threw her against the wall, put his hands around her neck, started to choke her and banged her head against the wall. When she started packing her bags he started to cry; he then took his Koran and swore that he would never hit or harm her again. The mother believed him.
That pattern of physical assault and damaged property, followed by pleas for forgiveness, was repeated on numerous occasions in the northern suburbs home. I accept the mother’s evidence of the father’s attempts to restrict her contact with her family and of his refusal to allow her to return to school to complete her exams, his rationale being that she was a married woman and could not be amongst male students.
Although he had arranged the marriage ceremony in his home and the subsequent wedding party, the maternal grandfather saw nothing of his daughter and son-in-law. He was unimpressed by the father and sceptical of the viability of the marriage but was persuaded by his wife and daughter to give it time to see if it worked out. The mother had some telephone contact with her own mother, and occasional face to face contact.
By the end of 2006 the parties had to move out of the northern suburbs property; the rent was in arrears and proceedings were taken in VCAT, where orders were made forfeiting the rental bond and requiring the payment of arrears of rent and compensation relating to a hot water service. In early 2006 they moved into a bungalow at the rear of the father’s parents’ property in the south eastern suburbs. The mother’s evidence was that the father’s violence towards her continued and on a number of occasions the father’s mother came to the bungalow after she heard her screams. The father’s mother agreed that her son and his wife argued but denied she was aware of any violence. I accept the mother’s evidence of the father’s threats to kill the baby if she moved back to her father’s home.
In early January 2006 the mother left the father’s parents’ home after the father threatened to kill her father, who had allegedly embarrassed him at the Mosque by refusing to shake his hand. The maternal grandfather’s evidence, which I accept, was that the father came to his home that day with two friends, and banged on the doors and windows with steel bars, shouting abuse. The police attended but as the mother subsequently returned to the father, the maternal grandfather did not insist on charges being pressed. She and her mother stayed in a motel that night. When she attended the bungalow property the next day with police to collect her belongings, the father begged her to stay and she agreed.
About a week later there was another argument after the father told the mother she was not allowed to see or speak to her own mother again. When the mother said she was going to leave him, he said he would divorce her first and repeated the words “I divorce you” three times.
The evidence before the court was that it is sufficient for a man to divorce a woman under Islamic law to repeat the statement three times in the presence of, variously, two or four witnesses, but that a woman cannot be divorced when pregnant. There is little point in considering the religious effect of the father’s utterings on this day.
The mother returned to her parents’ home and was readily accepted.
The maternal grandfather’s evidence was that on 16 and 17 January, 2006 he received a series of threatening text messages from the father’s mobile phone. He responded to none of them. The messages were as follows :
· 16 January, 2006 at 12:08 am. “All this time I thought you were not an animal but you are worse than a fucking dog you arrogant piece of shit so pray your Janazah now when you can.”
· 17 January, 2006 at 1:22 pm. “Take ur fucked up daughter back and shove her up ur ass you cock sucking piece of shit.”
· 17 January, 2006 at 1:24 pm. “I told you before that Allah sent me to punish you and here it comes gypsy.”
· 17 January, 2006 at 1:25 pm. “All my life I will not eat, rest or sleep till I see you go down you son of a bitch.”
On 26 January, 2006 members of the father’s family called an ambulance just after midnight and the father was taken to the Monash Medical Centre. His evidence was of taking four or five Propanolol tablets (beta blockers, prescribed for migraines he experienced in hot weather) and having an adverse reaction to them as he had not eaten. According to him, he was to take one tablet when he felt the onset of a migraine, and another if the migraine eventuated. He gave no explanation for taking four or five. He denied any suicidal intent and denied ever telling the mother, when she visited him in hospital, that he had tried to take his life because she had left him.
The mother’s evidence was that she had invited the father (from whom she was separated) to attend a medical appointment with her earlier that day, as she was having an ultrasound and he could see the baby. She said he became very distressed at the prospect of not being in the child’s life. When she heard he was hospitalised, the mother visited him and it was then he told her that he had tried to kill himself.
The father’s evidence about these events was far from convincing; nor was that of his mother. In re-examination the father tendered what was referred to as a medical report, which – he said – proved he was not suicidal. The document is a print out of the records of his GP, Dr. E, from 12 September, 2003 to 10 November, 2006. The entry for Friday January 27, 2006 is as follows :
Friday January 27 2006 10:07:05
Dr [E]
call from MMC Psychiatric registrar
[The father] was admitted overnight yesterday for Propanolol overdose. Patient discharegd (sic) himself, Thought to be overt gesture due to stress and not actual suicide attempt. Psychiatric reg not concerned that suicidal or at risk. Told out of character especially regarding religious beliefs.
Called patient at home, feeling tired and regretful. will meet at Mosque at lunch time.
Asked circumstances, told that had fight with pregnant wife and she had left him but she was now home.
This account of an overt gesture, expressed regret and distress at the mother leaving him is more consistent with the mother’s account than that of the father. Regardless of his intentions, I accept the mother’s evidence of what he told her at the hospital and that it was this which persuaded her to return with him, that night, to the bungalow at his parents’ home.
The violence continued after this reconciliation. The mother’s father withdrew his support; the mother was isolated and fearful. In March 2006 the father physically assaulted her, telling her to miscarry the child.
On the father’s insistence, the mother applied for a single pension when she was about seven months pregnant; he was convinced that this would give them access to emergency accommodation through the Ministry of Housing. The mother attempted to leave the father on other occasions as her pregnancy progressed but was persuaded to stay. On one such occasion the father took her for a drive, with a wooden handled knife between the front seats. Having stopped the car he banged her head against the CD player and punched her in the chest, then started to hit her back with the wooden knife handle, telling her not to scream.
The child was born in June, 2006. The week prior to that the parties moved into a rental property owned by a friend of the family. The mother’s evidence was of discovering that the husband had been seeking donations at the mosque, ostensibly for families in need, and keeping the money to pay the rent. When the mother taxed him with the alleged dishonesty shortly after the child’s birth, the husband assaulted her.
On 10 September, 2006, in the context of yet another argument about the mother’s mother, the husband told the mother “from now on we are dead to your mother”. The following day, after he had left for work, the mother called the police and sought help to escape. A neighbour took her to the local police station.
Much evidence went to the circumstances in which the father went to H Primary School that day, a school attended by the mother’s twin brothers. In his affidavit the father affirmed that he went there in the hope he would find the mother’s mother, to make enquiries of her about the mother’s whereabouts. In the witness box he said he went there to find the mother and, later, to find the mother and her mother, who he thought might be collecting the twins. He said he had been to the school previously to collect the twins, in company with other family members. Given the allegedly anodyne nature of his request (that is, to ask if the mother or her mother were at the school) his explanation for his actions was risible.
The father was working then as a taxi driver. In his taxi driver’s uniform, he went to the reception desk and asked the whereabouts of … Secondary College, which he knew was next door. Given directions, he left, although probably not in the most direct way. There is no doubt that those at the school were concerned by his visit; in due course, he received a letter (probably a warning pursuant to s.9 of the Summary Offences Act 1966 (Vic)) telling him he was prohibited from being at the school for seven years, save with a reasonable excuse.
The evidence does not allow me to make findings about the detail of what happened at the school but I accept the mother’s evidence that the father told her later that day that he done something stupid, which was to go to her brothers’ school with the intention of kidnapping them. Her evidence was of threats made by him, on more than one occasion, that he would kill one of her family members if she took the child from him.
That same day the father went to the home of the mother’s parents where he abused and threatened the maternal grandfather, and produced a knife. I am satisfied that occurred prior to him attending H Primary School, not afterwards, as deposed by the father.
According to the father, it was he who initiated the final separation of the parties on 11 September, 2006, because he was appalled to learn that the mother had been claiming a pension as a sole parent. There is no doubt that she did claim such a pension but the Centrelink records note advice of a reconciliation on 19 August, 2006, consistent with the mother’s account. The records show that between 19 August and separation on 11 September, 2006 she was not assessed as a sole parent by Centrelink.
The mother’s evidence was that the father repeatedly told her that he would kill the child if she moved back to her parents’ home. When she learnt of his attendance at her parents’ home on 11 September, 2006, and of him threatening her father with a knife, she became increasingly concerned. She did allow him to spend time with the child for a short period on 14 September, 2006 at the local Shopping Centre; when the child was returned to her, the father threatened he would “do something stupid” if she tried to go to court. She did not allow him to see the child again until court orders were made.
On 18 September, 2006 there was an incident at the father’s home involving the mother, father, Y and, probably, a number of other people. Y attached a copy of the application she made for an intervention order against the mother to her affidavit. She alleged she was “beaten up by the defendant and some boys” in her brother’s driveway. She also alleged the mother’s father has a gun but no appropriate storage for it, that the mother was really angry because the father left her and that the mother wanted to take it out on his sisters. She said the mother “is crazy” and would do anything to hurt her brother so that she could stop him from seeing his daughter. The father, too, made an application for an intervention order against the mother and her father. Those two applications were made after the mother filed an application for an intervention order against the father, in early September 2006; she was granted an ex-parte interim order and the case was adjourned for hearing on 25 September, 2006. It was then the father and Y brought cross-applications.
Suffice to say that after a contested hearing at the Dandenong Magistrates’ Court on 21 December, 2006 the applications of the father and Y were dismissed and the mother was granted an intervention order to protect her and the child for five years. The father and Y appealed to the County Court and their applications were listed in July, 2007. At court the mother agreed to remove the child’s name from the intervention order obtained by her, and the father and Y otherwise abandoned their appeals.
The father’s evidence was that on 18 September, at some point in the dispute, he divorced the mother, repeating “I divorce you” three times in front of the requisite number of witnesses.
I add that the maternal grandfather does own a gun, for which he has a licence, which he retains. The gun is used for hunting. There is no evidence of probative value that he has ever used or threatened to use the gun for any other purpose. The maternal grandfather has received visits from AFP officers investigating an allegation he was involved in terrorist activities and ATO staff investigating allegations he was involved in tax fraud. He attributed responsibility for the allegations to the father. The evidence does not allow a finding as to the informant but neither agency took the investigations further.
Within days of the mother applying for an intervention order, the father issued an application for parenting orders in the Federal Magistrates’ Court at Dandenong, seeking to spend time with the child. That application was filed on 21 September, 2006; the wife filed a response on 30 October, 2006 seeking that he attend an anger management course and for psychiatric assessment.
On 31 October, 2006 a number of parenting orders were made, by consent. The orders provided for the child to live with the mother and for the parties to have equal shared parental responsibility for her. The father was to spend time with her each Wednesday and Saturday between the hours of 2:00 pm. and 4:00 pm. Both were to be psychiatrically assessed. Changeovers were to take place at the G Police Station. Orders were also made for the appointment of an independent children’s lawyer.
The father saw Dr. K on 1 February, 2007 and the mother saw him on 8 February, 2007. His reports are dated, respectively, 5 February and 14 February.
In his reports, Dr. K noted the importance of a determination as to whose version of events was correct. Dr. K expressed the opinion there was no evidence of significant emotional psychiatric disturbance in either party. That assessment was based on the plausible accounts given by each. While individually plausible, both could not be right. Dr. K then expressed the following opinion :
He (the father) is indeed an intelligent fellow and indeed he can present very well indeed, is religious and well educated and can present in a very persuasive way.
If what she (the mother) says is correct he lies, is aggressive, takes money that doesn’t belong to him and doesn’t seem to express any guilt or remorse for his behaviour.
If then we accept her description of the situation then I say he should have very limited contact with the child and should probably only be under supervision.
Her description of his behaviour if correct would indicate that he had a Psychopathic Personality Disorder.
This sort of personality is well described in some of the literature and refers basically to individuals who can present very well, are intelligent, strongly motivate, persuasive and seductive but virtually conscience free. Prominent conmen figure in this group of people. They are not in fact treatable and one has to have very real reservation about such individuals having much influence and contact with children.
But I must emphasise that this formulation that I am making really does depend upon acceptance of her description of him – which I found plausible.
General comments about these two people:-
The real problem here depends upon whose version of events is correct/accurate. If for example the Court accepts the evidence provided by the mother than I say we have to be very seriously concerned about this child having much contact with her father and especially having unsupervised contact.
She does not give evidence of psychiatric disturbance – but of course I have no way of knowing whether she is misrepresenting the situation.
Converse if it weren’t for what she says about the husband I would have no concern about him from a psychiatric perspective.
The case returned to the Federal Magistrates’ Court on 6 March, 2007 and was fixed for a final hearing on 16 August, 2007. The court ordered that a family report be prepared, gave directions for trial and changed the changeover venue to the S Police Station, which is near the father’s parents’ home. Significantly, the court ordered that the father’s time with the child (in accordance with the earlier order made on 31 October, 2006) “take place at the paternal grandparents’ home in [the south-eastern suburbs] and the father and at least one of his sisters be present throughout”.
The father saw the child pursuant to that order.
On 1 June, 2007 the wife received a visit from Department of Human Services workers, investigating a notification that she intended to have the child circumcised on her first birthday. She was advised that the notification asserted that she and her family members had been circumcised. The mother’s evidence, confirmed for DHS by her doctor, was that she is not circumcised and I accept her evidence that circumcision of women is not practised in her culture. From her perspective, the father had raised this as a concern with the intent of attributing circumcision of the child to her, when in fact arranged by him.
The father asserted that circumcision was common in the mother’s culture and agreed it was also common in his own. However, he said it was a primitive village practice and one to which he was opposed.
While DHS conducted the investigation, the mother did not take the child to spend time with the father. Her evidence, which I accept, was that DHS advised her to take that course. In due course, she was advised by DHS that the investigation would be closed.
In mid-June the parties attended Ms. D, for the preparation of a family report, which was released on 9 July, 2007. She recommended that the child spend time with the father at the home of his mother, commencing with a three month period of two, five hour visits, and moving through a phased-in regime to each alternate weekend from Friday evening to Sunday evening, and five hours in the off week. Her recommendation was conditional on the court being satisfied that the father “does not pose any major risks to [the child]”.
On 16 August, 2007, the day on which the trial in the Federal Magistrates’ Court was to commence, the case was transferred to this court. Orders were made, by consent, requiring the parties to attend a post-separation parenting program. An injunction restrained each from abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family or household to the child or in her presence or hearing and from visiting upon the child the act/procedure of circumcision or any other surgical procedures with like effect.
Early in 2008 the father’s solicitors wrote to the mother’s solicitors seeking to increase the time their client spent with the child. In due course she agreed and from 25 March, 2008 until the end of May the father’s time was increased to five hours on Wednesday and six hours on Saturday.
On 21 May, 2008 the father’s solicitors sought that the father spend time with the child from Friday evening to midday Saturday on each alternate weekend, a request which was refused by the mother on 23 May, 2008. Her solicitors advised of the mother’s instructions that the father had been taking the child out of his mother’s home, alone (as I am satisfied he had) and expressed doubt as to his compliance with any order that the child spend further and overnight time in that home. They also advised that the child was still breast fed at night.
In this court Ms. W prepared a Children and Parents Issues Assessment, dated 3 July, 2008. Her assessment was based on interviews with the parties on 17 June and further interviews and observations of the child with each of them on 2 July, 2008. The point of such a report is to crystallise the issues; it is not equivalent to a full family report.
Ms. W cogently identified the key issues in dispute as the safety of the child in the care of her father, the extreme disparity in the accounts of the history of the matter, the impact of the parental conflict on the child and the risk that one or other of the parents would have the child circumcised.
When the parties saw Ms. W the mother had again stopped the father’s time with the child. In early June 2008 she learnt of an alleged assault by the father on a former friend, Mr O, which, she believed, resulted in him being charged with criminal offences. When the parties saw Ms. W the father acknowledged that an incident was being investigated, but denied there was any likelihood of being charged with any offences.
Detective Senior Constable G of CIU gave evidence of the allegations made by Mr. O, who she described as the “main victim” and who was known to the father for eighteen years. The allegations involve aggravated burglary and serious assault. Detective Senior Constable G is currently waiting for forensic material to be analysed, which could take some twelve months. She has prepared a brief of evidence, in which she recommends prosecution. Contrary to the evidence of the father, she has never given him any indication that charges would not be pressed; when he rang her some four months ago, she told him that, in her view, it was absolutely certain the matter would go to court. She believes the father will be presented for trial in the County Court.
In brief, it is alleged that the father went to his friend’s home on 6 January, 2008 with Y, asked his friend’s brother if he would take Y out for a coffee, then entered the home armed with a hunting knife and a piece of timber. When the brother approached Y in the car outside, she told him to go inside, as her brother planned to assault Mr. O. The brother was able to let himself into the house. An argument ensued between the father and Mr. O, the father accusing him of meddling in his family. The father then attempted to strike Mr. O on the arm with the length of timber, which broke and inflicted “a decent gash” which required medical assistance and eight stitches. It is alleged the father then pushed Mr. O onto the bed, produced the knife and threatened him, leading to a scuffle in which the father was disarmed. At that point Y entered the house, was disconcerted by the volume of blood, and told her brother to get out. Mr. O has alleged to police that the father said to him words to the effect “this isn’t over, it’s not finished”.
Detective Senior Constable G deposed that Y has made a statement saying she was not at Mr. O’s home and that her brother was at home with her at the time of the assault. That may have been the father’s initial account to police; I cannot say. Before me, he denied any violence. At one point he said he was at Mr. O’s house “a couple of days before” the alleged assault, and that there was “an incident”. I propose to issue a certificate pursuant to s.128 of the Evidence Act 1995 (Cth) in relation to evidence given by him in respect of the incident on 5 January, 2008. The father was informed, when advised of his right not to answer questions, that any such certificate would not prevent evidence being used if he were charged with perjury.
Y was not cross-examined about the allegations. Detective Senior Constable G discreetly but clearly deposed to the potential for charges to be laid against Y were her evidence (as to presence and alibi) to be found false.
Detective Senior Constable G’s evidence was that the father has no prior convictions but was “known to police” as a result of another alleged assault in 2004, which was withdrawn.
I cannot make findings about what happened on 6 January, 2008. I can and do find that it was not unreasonable for the mother to cease contact when she was told of the allegations in June.
In July 2008 Ms. W recommended an urgent hearing and that supervision be considered until the trial. She also recommended a further psychiatric assessment of the father. However, on 11 July, 2008 she agreed that little would be served by that, having regard to Dr. K’s opinion that the diagnosis was dependent on the facts found by the court.
On 11 July, 2008 I ordered that the father spend time with the child on each Wednesday from 1:00 pm. until 5:00 pm. and on each Saturday from 12:00 noon until 6:00 pm. The order provided that the father’s time with the child be supervised by his mother and that she be present during the whole of the time he spent with the child, including changeovers, provided that one of his adult sisters could supervise his attendance at changeovers on Wednesday in lieu of his mother. That order was made as it was the paternal grandmother’s evidence that she could not attend changeovers on Wednesdays due to her obligations as a family day carer. The order also provided that the father’s time with the child be spent at the paternal grandmother’s home and in the environs of her home.
Between 6 March, 2007 and 11 July, 2008 the father’s time with the child was to take place at the paternal grandparents’ home in the presence of at least one of his sisters; from 11 July, 2008 until trial it was to take place at the paternal grandparents’ home and in the environs of the home, and be supervised by the father’s mother, save that one of his adult sisters could be involved in Wednesday changeovers. In the course of the hearing on 11 July I spoke by telephone to the paternal grandmother and impressed on her the importance of complying with the undertaking she had agreed to give. In particular, I stressed the damage which would be done to her son’s case were a court to find that his time with the child had not been supervised by her, as ordered. These admonitions were repeated in the judgment delivered that day, a copy of which was provided to the parties.
At various points in the case the mother expressed the view that the father’s mother and sisters were either fearful of the father or, at the very least, unable to stand up to him. On the evidence before me I do not make a finding of fear but I do find that both the father’s mother and his sister Y were prepared to lie to the court to advance his case and acquiesced in and condoned his breaches of court orders.
This is a convenient point at which to consider findings relevant to credit and the reasons behind the earlier finding that it is the mother, and not the father, who has told the truth about their relationship and events since its cessation.
The evidence of the father, his mother and Y was that the orders which required him to spend time with the child at his mother’s home or, from 11 July 2008, at or in the environs of the home, had been complied with. Further, he had complied with the requirement in force until 11 July 2008 to have one of his sisters present at all times and, since 11 July 2008, his mother had supervised all his time, save for the Wednesday changeovers.
The mother deposed in her affidavit affirmed on 15 October, 2008 that the father “has recently posted to his Facebook a short video of himself and [the child] at the swimming pool”. Her oral evidence was that she was alerted to this by a friend and accessed the Facebook (as anyone could do, at that time) to view the video. On the day she did so, the father posted a photo of the child on his Facebook, taken at a beach.
When cross-examination of the father commenced, the mother had not given evidence about the beach photo. He was asked whether he had ever taken the child to the beach. The exchange was as follows :
Have you taken [the child] anywhere else?---No.
Have you taken her to the beach?---No, I haven’t.
Have you ever taken [the child] to a beach?---Have I ever taken [the child] to a beach? No, I haven’t.
The father was then shown a print of the photo taken from his Facebook. It was clear he was focusing on the current orders, which require his mother to supervise his time at her home and in the environs of the home. Taxed with the inconsistency between his evidence of never taking the child to the beach and photographic proof to the contrary, he said the photos were taken “before there was any supervision restrictions” and that he thought the question about beach attendance related to the period after July 2008. He said the photo was taken at either Edithvale or Brighton beach (suggesting the child has been to both beaches with him) and that it was taken by Y. He said he did not know how many times he had taken the child to the beach before the July 2008 orders, that “I used to take my daughter to the beach” and that “I didn’t know it was a crime to take my daughter to the beach”.
Y’s evidence was that her brother always complied with orders relating to his time with the child. In particular, all his time with the child since 11 July, 2008 had been supervised by her mother, although she was always there, too. Shown the photo of the child at the beach, which she had not previously seen, she said it looked to be “very recent”. Her evidence was that she has never been to a beach with the child. It follows that it was not Y who took the photo.
When the paternal grandmother was shown the photo of the child at the beach, she said it looked “recent”. Her evidence was that she has never been to a beach with the child. It follows that she was not supervising the father’s time with the child when the photo was taken.
The mother’s evidence, which I accept, was that the dress the child is wearing in the photo was bought by her on lay-by and picked up in either late September or early October this year. Further, she cut the child’s fringe in October, and the photo shows the shorter fringe. I am satisfied it is a recent photo of the child at a beach, taken in October 2008, the month on which it was posted on the father’s Facebook.
What follows from this? First, I am satisfied that the father lied when he said he had never taken the child to the beach, lied when he said the photo was taken at the beach prior to July 2008, lied when he said his sister Y took the photo and lied when he said that his time with the child since 11 July, 2008 was always supervised by his mother. Second, I am satisfied the paternal grandmother lied when she said she was present “a hundred percent of the time” since 11 July, 2008; the child and the father must have been absent from her home for some time to visit either Brighton or Edithvale beaches. Third, I am satisfied Y lied when she said that from 11 July, 2008 her brother always spent his time with the child in her mother’s presence.
The father was so intent on deflecting attention from the breach of the July orders that he lost sight of the earlier orders, which operated between 6 March, 2007 and 11 July, 2008. In that sixteen month period, there was no formal order for supervision but contact with the child was to be at his mother’s home (there was no “environs” provision) and one of his sisters was to be present at all times. The mother’s belief that he ignored those limitations was borne out by his own evidence that :
Prior to the July orders I used to take [the child] anywhere and everywhere I wanted.
Supervision by the paternal grandmother was unsatisfactory in other respects. The father’s evidence was that he found it insulting and offensive to have his time supervised and that supervision could not mean that his mother had to be there when he was putting the child to bed or changing her nappy. He said “am I a lion that is being protected from attacking my daughter?” At one point in his evidence his guard slipped when he was being cross-examined about the time the child spent at the swimming pool, across the road from his mother’s home. He said that he sometimes took the child, with his sister Y, to the pool on Saturdays. Asked whether his mother accompanied them, he said “she would come afterwards to check everything was alright – it’s literally across the road”. The clear message conveyed was that his mother did not have to be present if he were not far from her home.
That evidence of the father was put to both the paternal grandmother and Y. When this statement was put to the paternal grandmother and Y it posed, no doubt, a conundrum. If they agreed that what the father said was correct, it contradicted the earlier evidence of each, that the paternal grandmother was always present. If they disagreed, they would be contesting an account given by the father. Both agreed events occurred as he described; that is, Y, the child and the father went to the pool without the paternal grandmother.
I accept as true the mother’s evidence that on one occasion she saw the father alone with the child at a local shopping centre.
Much of the cross-examination went to time the father spent with the child and, allegedly, his mother at the local park, the swimming pool across the road and at various shops and shopping centres, including the local market. The paternal grandmother’s evidence was that her son told her the court said it was fine to go to the market and, indeed, the father said he had told the court that his mother went to the market every Saturday, at the hearing on 11 July. A transcript of that hearing reveals no conversation or submission about the market. I have no doubt the father knew that the reference in the order to “the environs of the grandmother’s home” did not extend that far, but outings like that, whilst inconsistent with the order, are not a primary concern. What is of concern is the father’s disregard of the order for supervision by the paternal grandmother and his family’s collusion. Faced with the evidence of the beach outing or outings and that of the shopping centre, I have no confidence whatsoever in the father’s compliance with the orders made in July 2008, or the earlier orders.
The father’s preparedness to lie extended to evidence of the ceremony of marriage conducted in Melbourne. The mother’s evidence was of the father taking their framed certificate of marriage off the wall and smashing it across his knee after he assaulted her, for the first time, when she was two months pregnant with the child. The father responded to that allegation in paragraph 49 of his affidavit, deposing “I deny taking the framed certificate of marriage off the wall and smashing it across my knee. We were never issued with a marriage certificate.” Cross-examined about this, the father denied going through a ceremony of marriage at the home of the mother’s parents in September, 2005. According to him, she had some sort of “girls’ night” at her parents’ home and the only function was the party at the V Hall later that month. He agreed a form of marriage ceremony was conducted but said it occurred at the V Hall and was a sham, in any event, as they had already married in Sydney.
A copy of the marriage certificate to which the mother adverted in paragraph 16 of her affidavit was tendered to the court. It is signed by the parties, the “religious marriage celebrant” and two witnesses.
Faced with the certificate, the husband dismissed it as irrelevant, on the grounds it referred to a sham ceremony. However, his mother’s evidence corroborated that of the mother, she deposing to the wedding ceremony taking place at the mother’s parents’ home. I am satisfied that the father lied when he sought to discredit the mother by deposing that no marriage certificate existed and lied when he denied the wedding ceremony at the mother’s parents’ home.
I am also satisfied the father lied when he told the court that he had no contact whatsoever with police since January 2008 and lied when he said he believed that they were not going to pursue the charges, a belief based (he said) on the time which has elapsed since the alleged assault. Detective Senior Constable G’s evidence was very clear. First, she has spoken with the father by phone a number of times since January. Second, she told him that, in her opinion he “absolutely” would be charged.
I am satisfied the father lied when he denied sending offensive and threatening text messages to the maternal grandfather in January 2006 and lied when he deposed that he never swore or used foul or offensive language. These messages belie the father’s attempt to present himself as a courteous and calm individual and justify a finding of hypocrisy, as well as findings of dishonesty and abusive behaviour. His complaints about the child’s language and assertions she could never hear such words in his presence or home are shown to be hollow.
The father’s preparedness to deny sending the text messages in January 2006, and to maintain the denial, is indicative of a conviction that he is unassailable; he will be believed because he is who he says he is, a respected Muslim scholar. Perhaps it did not occur to him that the maternal grandfather had kept the messages although the full texts transcribed in his affidavit should have suggested otherwise.
The maternal grandfather produced the telephone on which the messages were left, confirming the sender’s number as 0413 …. The father’s earlier evidence was that this is his mobile phone number.
I have no hesitation in preferring the evidence of the maternal grandfather about the father’s attendance at his home on 11 September, 2006.
Giving his evidence about the child’s time at the beach, and his compliance with orders, the father presented as plausible, persuasive, credible and frank. If there had not been photographic evidence, from a source he was unable to dispute, he may well have been believed. It was Dr. K’s evidence that prominent con men figure in the group of people with psychopathic personality disorder. “Con man” is the slang term for “confidence man”, a man who cheats or tricks someone by means of a confidence trick (Oxford Dictionary of English (2nd edition revised)). The trick usually involves persuading the victim of the “con” to trust the con man. This aptly describes the father’s presentation; in this instance he sought to persuade the court he was honest and trustworthy in order to trick it into believing his fictitious account of events.
The mother made no secret of her dislike and distrust of the father, saying he “lies every time he opens his mouth”. On occasions she made sweeping statements, such as there being five hundred people chasing him for debts, a figure she swiftly reduced to twenty. It is probable she does interpret things said and done by the father in the way least favourable to him, but it is probable that is a product of her experience of him; having experienced the disparity between his outward words and appearance and his actual threats and violence, she has no confidence in anything he says. Nor has the court. It is probable the father has the psychopathic personality disorder identified by Dr. K.
PRIMARY CONSIDERATIONS
When determining what is in a 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.
These are consistent with the objects set out in s.60B(1).
Ms. W identified three key issues relevant to the child’s physical and psychological well-being, being her safety in the care of her father, the impact of parental conflict on her and the risk that one of her parents will have her circumcised.
The father relied on the fact that the chlid has never come to any harm in his care as proof that she is not at risk when with him. I do not find that he has ever harmed her but there are concerns about her physical and psychological safety in his care. The evidence establishes that, behind a veneer of empathetic charm, the father has the capacity for explosive physical and verbal violence. Despite his professed love for the mother, he was physically abusive to her for most of their marriage. The evidence of the maternal grandfather provided a further illustration of this propensity for verbal and physically threatening behaviour. The evidence supports a finding that the father will not brook behaviour which he sees as a denial of his rights or contrary to his wishes; if charm and courtesy will not achieve his aim, he resorts to abuse and coercion. The child is still very young but she will not be compliant for ever and there must be concerns about the potential for the father to react swiftly and irrationally were she to be defiant of his authority.
I accept as true the mother’s evidence of the threats the father made to her relating to her and the child. Dr. K’s evidence was that a person with a psychopathic personality disorder should not have much influence or contact with children. Cross-examined, he said that the particular behavioural disturbance is characterised by a pervasive pattern and this behaviour can be modelled by a child who has a lot of contact, and is thus exposed to the impulsive behaviour, physical violence and lack of remorse. He expressed concern about the attitudes which could be inculcated in a child, as well as concern about the way such a person relates to a child. A parent’s behaviour shapes a child; children learn what they live. The evidence supports findings that the father fails to conform to social norms with respect to violence and intimidation, shows a reckless disregard to the safety of others, is prepared to act in a deceitful way to further his aims and demonstrates no remorse. These are not behaviours and values which should be modelled to a young child.
Ms. D expressed concern that a person without a conscience is “capable of anything”. That is a very general statement but the father’s lack of remorse for the violence he inflicted on the mother, and the lies he was content to tell the court, suggest that he does not see himself bound by societal norms of respect and honesty.
Counsel for the father submitted that the court should find that the likelihood of the child being exposed to violence by his client was nil. I do not share that confidence. As found, the father’s aggressive and impulsive behaviour could impact directly on the child, were she to defy him, and she could be exposed to such behaviour towards third parties, and its consequences. Such exposure could profoundly impact on her development and well-being.
Dr. K’s evidence was that the sort of behaviour the mother described is typical of a person with a psychopathic personality disorder and that such people are intelligent, persuasive and likeable. His oral evidence was that if the mother were telling the truth, any contact the father has with the child should be supervised.
The child is also at psychological risk as a result of the tension between the parties. The mother’s evidence was of the child often being reluctant to go on contact and needing some persuading, but of her coming home happy and relaxed. From the father’s perspective, there were no real problems with changeovers.
Y’s evidence made very clear the tension surrounding changeovers at the police station, during which the adults do not speak to each other but only to and through the child. Ms. W referred to the considerable insecurity demonstrated by the child during an attempt by the mother to hand her over to the father so she could observe their relationship, noting :
The difficulty in transition between her parents that [the child] so clearly experienced, demonstrated, with force, the impact of the tension between her parents and their families (each parent had a sister present). Despite what appeared to be deliberate effort on the part of each parent and their sisters to mask this, the tension was inescapable and, along with the strangeness of the situation, caused immense confusion for this very young child who clearly loves both her parents.
The child has been moving between the parties pursuant to court orders since October 2006, when she was four months old. Rather than abating, the evidence suggests the tension is manifesting more adversely on the child as she grows older. If the father is to see the child, unsupervised, it would be important to structure orders to provide for a changeover environment which protects her, as much as possible, from the unspoken but clearly manifest hostility between the parties and their families.
Each of the parties denies that he or she would ever have the child circumcised and suggests that the other could be responsible for the performance of such a procedure. I accept the mother’s evidence that circumcision is not practised in her culture and that she herself is not circumcised. I can say nothing about the father’s mother or sister, as neither was asked the question. The mother’s evidence was that she did not know that girls were circumcised until she was told by the father, the discussion occurring the morning after their marriage when he asked why she was not circumcised. The father sounded genuine when he said he saw the practice as primitive and denied any intention of imposing it on the child, but he sounded genuine when telling lies about his time with the child and events such as his attendance at the maternal grandfather’s home and text messages sent to the maternal grandfather. Prudence suggests that the current order, which restrains both parties from allowing such a procedure, should remain on foot.
I am satisfied the child is not at risk of physical or psychological harm in her mother’s care, save for the potentially adverse impact of changeovers to which I have adverted.
It is clear that the child would benefit from a meaningful relationship with both parents, so long as that does not expose her to physical or psychological harm. The child is primarily attached to her mother and has a significant attachment to her father; she is a bubbly, intelligent child whose successful overall development, Ms. W found, reflected very caring parenting. She has a loving, warm and responsive relationship with both of her parents.
Dr. K was asked about the potential consequences were she not to see her father and spoke of the potential for her to romanticise an absent parent.
Ms. D, too, spoke of the general importance of maintaining a relationship with both parents, particularly for a child who has a rich cultural heritage on both sides. Her evidence was that if the child can maintain those relationships “without suffering in the process”, she would support it.
Although the expert evidence was not detailed, the court can find that the child would be adversely affected by the removal of her father from her life. Save for the period in which DHS were conducting an investigation, and a period earlier this year, she has had regular and frequent time with her father since October 2006. She could be expected to miss him and that yearning could manifest in a range of behavioural, emotional and cognitive disturbance. An understanding of identity is fostered, in the long term, by knowledge of one’s origins and it is trite to say that good relationships with both parents are conducive to building resilient and independent adults. For these reasons the court must be very cautious about making orders which eliminate contact between a parent and child. Nevertheless, such orders must be made if demanded by the best interests of a child.
ADDITIONAL CONSIDERATIONS
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The child is too young for her views to be of relevance. It is her attachments which are more important and she is attached to both her parents and to extended family on both sides.
(b) The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
I have found that the child’s relationship with each of her parents is warm and loving. The mother and the child live in her parents’ home with her eight siblings, including a brother born after the child, who is now nearly nine months old. Ms. W referred to the strong social stimulation available from such a household and it is likely this has impacted to the child’s benefit. There is no evidence that the child enjoys anything other than appropriate relationships with her maternal grandparents and uncles and aunts.
Although the father does not live with his parents, at least some of his contact has occurred at his parents’ home, where the child is exposed to her paternal grandmother and to the father’ three sisters, as well as her great grandmother. The father’s father is presently overseas (the father told Dr. K his father conducts an international import/export business, which is very successful) but may form part of that household at times. The mother readily conceded the child’s attachment to Y; while not denying the paternal grandmother loves the child, she was unsure about the centrality of that relationship, given the child’s preference (in her presence) for Y. I do not doubt that the paternal grandmother is a loving grandmother and that her daughters who live with her dote on the child. The child also has had the opportunity to interact with some of the children who are looked after by the paternal grandmother. Having regard to the failures in the paternal grandmother’s supervision, I could not be confident that she would act in a way which is contrary to the wishes or desires of the father, which must limit her capacity to offer protection to the chld.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
(f)the capacity of :
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
It is convenient to deal here with these s.60CC(3) factors relating to parental capacity and attitude. I will also consider the matters contained in s.60CC(4) and (4A) of the Act, which are as follows :
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Each of the parties alleged it was the other who was inflexible and failed to facilitate ongoing relationships. Despite her hostility towards and distrust of the father, the mother has demonstrated some flexibility and goodwill in these respects. She extended the time the father could spend with the child from that set by the court, she agreed to change the day on which the father spent time with the child when Y was unable to attend Wednesday changeovers, and she has facilitated phone contact between the father and the child. As found, she stopped contact on two occasions but I am satisfied the circumstances warranted her concern on each occasion.
Rather than give her credit for changing a day to suit his convenience (from a Wednesday to a Sunday) the father complained that the mother then insisted that his mother be present at changeovers on Sunday, rather than Y. The judgment of 11 July, 2008 made it very clear that it was his mother who was to supervise his time with Y, including changeovers, save on the Wednesday when her family day care commitments precluded her leaving her home. Having no such commitments on a Sunday, it was she who should have been involved in changeovers, as the supervisor. Although neither the paternal grandmother or Y may have the capacity to stand up to the father, it was reasonable for the mother to require the attendance and supervision of the paternal grandmother.
I am satisfied the mother is afraid of the father and that she has grounds for that fear. Her focus in the trial was on protecting the child, rather than herself. I place weight on Ms. D’s evidence that the court needs to look at minimising the mother’s anxieties; Ms. D said she is a good and nurturing parent and her need for safety and security is paramount.
I have earlier referred to the dispute about who should be responsible for matters relating to the child’s education. I am satisfied both of the parties have the capacity to provide for the child’s practical and intellectual needs but deal here with the evidence each advanced as supporting an order for sole responsibility for the child’s education
It seems that the parties’ respective changed points of view about the allocation of parental responsibility were influenced by an exchange of text messages on 5 September, 2008. In due course, a handwritten transcript of those messages was tendered, demonstrating that the mother’s recollection of the whole of the exchange was more reliable than that of the father. As the exchange provided, objectively, slim justification for the changed orders each sought in relation to the allocation of parental responsibility, I include it in full. The messages from the father are in standard font and those of the mother in italics.
Hey is it ok if I come alone tomorrow and u also cause I wanna discuss something with u concerning our [child]?
if its about [the child] swearing forget bout it
So [the child] swearing isn’t a problem to u?
it is n im training her not 2. She neva swears in front of me n I knw u, u will just blame me n I dnt wanna fight
Ok […] I dnt wanna fight as well. Iwanna talk to u about our daughters schooling future tomorrow cause I’ve been doing research. If ur keen.
Its 2 soon 4 school but if u want email me it. coz I dnt knw wha goin on here u used to say u dnt want [the child] 2 go to school n now u wana take her 2 the best. u cant even afford 2 pay child support I hav 2 wait 2 months 4 ur payment to get a box of nappies.
Its something I wanted to share with u cause its [the child’s] future but if u’ll go on about the past then I think dnt worry about it
Do u knw wen we go court there gonna decide wha is best for her wha school she goes not us.
We r her parents not the court.
Well we going 2 court for her best interest.
OK.
The mother’s opening remarks about swearing were based on an earlier email exchange between the parties, also tendered, in which the father raised concerns about the language allegedly used by the child when in his company. The email exchange was courteous but, as the evidence in the trial showed, in reality each blamed the other for the alleged bad language. Given the foul language the father directed at the maternal grandfather, no weight could be placed on his assertions the child was not exposed to bad language in his company.
The mother’s evidence was that when they were together, the father was insistent that the child would be home-schooled, as he did not want her exposed to Western influences. From her perspective, the invitation from him was a ploy to get her alone, and indicative of his tendency to change his mind about an important issue whenever it suits him. Further, she doubted his capacity to pay for the private school education it transpired he proposed (he spoke of Wesley), given that he is assessed to pay the minimum child support monthly. From the father’s perspective the mother’s response about swearing was indicative of no interest whatsoever in her daughter’s education. He thus sought to have responsibility for that aspect of her development.
The child is not yet three and much could change before she commences school. The mother’s scepticism about the father’s financial capacity was well based, given the child support position. She was also entitled to take the view that she would not meet with him alone; an intervention order precludes it and it is hard to see why that would have been a necessary precondition to discussing their daughter’s education. While those responses were justified, it could not be said that they provide an objective basis for the change in the mother’s view about parental responsibility.
It must be said that it was when cross-examined about the child’s education that the father’s contempt and disdain for the mother was most manifest. His tone and demeanour when he described her as a “year 12 dropout from a family of dropouts” was illuminating as well as ironic, given that her failure to complete year 12 arose from their “elopement” in September of that year and his subsequent refusal to allow her to sit her exams. The same contempt was apparent when he described her, in the context of responsibility for education, as “incompetent” and said she had no “care for [the child’s] schooling”. Asked by his own counsel if he thought she might change, he replied :
Twenty years, still home duties, or twenty one years old, still home duties? It says in her affidavit she wants to do a course in pharmacy. Since the proceedings have started till now, she’s doing home duties. So I don’t think there is any change that is going to come some time soon.
The father is 26 and while his evidence was of studying Islamic theology overseas, he is now only part way through an undergraduate degree. He is not in any form of paid work and Dr. K expressed some surprise at his attitude to employment, which Dr. K summarised as “he’ll work and then spend the money”. He spends some eleven hours a week with the child (a limitation imposed on him by court order) while the mother is responsible for her care for the balance of the week. His response did not suggest he values the unpaid but demanding role of a full time parent.
The father’s assaults upon the mother whilst she was pregnant showed a violent disrespect for her and their unborn child. Their continuation after the child’s birth indicates an apparent indifference to the potential effects of violence on a child who is nurtured by the target of that violence, and contempt for a vulnerable woman. A parent has a responsibility to protect a child from exposure to violence or the consequences of violence, a responsibility the father ignored. His abusive and threatening behaviour to the child’s maternal grandfather illustrates the contempt he holds for the child’s extended maternal family and his inability to contain that contempt.
The father’s lies, and his violent and threatening behaviour, sit uncomfortably with his protestations of religious observance and the testimonials of his general practitioner and leaders of a number of Islamic organisations. As none of the authors of those testimonials was called, the apparent paradox could not be tested.
(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from :
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
I have earlier adverted to the potential short and long term consequences of orders providing for the father to spend no time with the child. This is a significant matter, on which I place weight. In saying that I take into account the probability that an order restraining the father from spending time with the child would also have the effect of cutting her off from the extended paternal family and the culture they share with her. This is not a case where the court could allow the paternal grandmother and her daughters to see the child, while excluding the father. It is unlikely either the paternal grandmother or Y would obey such an order, if their son and brother sought to be present.
(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The father is not in paid employment and relies on Centrelink benefits and financial assistance from his family, assistance which (on his own evidence) has been forthcoming for many years. He told Dr. K his family was affluent. If the court ordered that his time with the child be professionally supervised, I am confident that he and his family could find the funds to do that.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
Ms. D described the child’s rich cultural heritage and it would be to her benefit to explore both sides of that heritage. While both families are Muslim, their habits and cultures are not identical. If the child does not see her father, it is hard to see how she could be exposed to her father’s heritage in any meaningful way. This factor must be weighed against the primary consideration of the importance of protecting the child from physical and psychological harm.
(j)any family violence involving the child or a member of the child’s family;
(k)Any family violence order that applies to the child or a member of the child’s family, if :
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
I refer to the earlier findings as to violence. The intervention order which protects the mother will remain in force until 2011. It is a final order and its making was contested by the father.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Finality is generally preferable in children’s matters. This litigation has been on foot since the child was three months old. The father spoke of his willingness to return to court to achieve his aim of ensuring that the child was not removed from Victoria or Australia. As far as possible, orders made should determine all issues presently in dispute between the parties. However, the focus must be on the child’s best interests and if interim orders are necessary to foster those interests, they should be made.
(m)any other fact or circumstances that the court thinks is relevant;
It is important that the Court considers the objects and principles set out in s.60B, to which I have referred.
PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY
The independent children’s lawyer submitted that the presumption does not apply as the court should find that the father has engaged in family violence. There is force in that submission, which I accept. Were the presumption to apply, I am satisfied the evidence would warrant its rebuttal. The father’s verbal and physical violence to the mother, his threats to and abuse of the maternal grandfather and his manifest contempt for the mother and her family militate against its application, it being contrary to the child’s best interests.
As the presumption does not apply, the court need not consider whether spending equal time with each parent would be in the child’s best interests.
The court still needs to determine the question of parental responsibility. I will consider this further once the question of the father’s time with the child is determined.
CONCLUSION
In my judgment, the balance between maintaining a meaningful relationship between the father and the child and protecting her from the potential for physical and psychological abuse can only be met by an order for supervised time. Having regard to the plausibility of the father’s presentation and his found capacity to act contrary to orders for supervision (and to encourage, or at least allow, family members to lie about that) I am not satisfied that supervision by an individual employed by Aiders and Carers or another such agency would be adequate. What is required is a level of professional supervision only available through a contact service.
Although continuing supervision by the father’s mother was not advanced as an option by any party, I note that the paternal grandmother’s evidence was of an inability to play that role in anything other than the short term.
In final submissions, counsel for the father submitted that the likelihood of the father having the resilience to maintain contact with his daughter at a contact centre was uncertain. No expert witness was asked about that; the submission may have been based on the father’s own evidence that he found orders for supervision by his mother to be offensive and insulting and on the sense of entitlement he communicated in tone and demeanour. If he is as committed to his daughter’s welfare as he professed, he will see her at a contact centre.
A child should not have expectations of time with a parent raised, and then dashed. Orders will provide that if the father regularly cancels or fails to attend a scheduled visit, the orders will be suspended until further order.
I am unaware of a contact centre which will provide a service for more than a year, a policy which is reasonable given the pressure on places. I propose to adjourn the question of the nature of ongoing supervision for a year; that question can be revisited after the father has seen the child in a supervised environment in that period. If he fails to take advantage of those orders and refuses to see her at a contact service (or sees her infrequently), the only option for the court will be an order that he spend no time with her. Ms. D’s evidence that unsupervised contact could be considered, if supervision were found to be necessary but not viable, does not persuade me otherwise. Pragmatism is a useful attribute when considering a regime to promote a meaningful relationship between a parent and child but not at the expense of exposing a child to an unacceptable risk of physical or psychological harm.
Subject always to the express consent of the contact service, the father may bring either his mother or one of his sisters to contact periods. I make it clear that his attendance is an essential pre-requisite; one such family member may accompany him, if considered appropriate by the centre, but not attend in his stead.
Most contact services cannot accommodate periods of supervision in excess of two hours or (save for very brief periods) at less then fortnightly intervals. Orders will provide for the service to fix the day and times; I envisage a period of two hours, on each alternate weekend.
I appreciate this is a substantial reduction in both the frequency and duration of the father’s time with the child, and she may miss her father and be unsettled in the short term. The predictably and security of the supervised environment should assist in settling her and provide an opportunity for interaction with her father. While not optimal, I am satisfied such time will maintain a meaningful relationship between them, while providing the necessary level of protection.
Having regard to the limited nature of the father’s time with the child, the tensions between the parties and their respective families, the father’s violent, manipulative and intimidatory behaviour and the potential for decisions to be made based on his interests, rather than the child’s, I am satisfied the mother should have sole parental responsibility for the child. Orders can ensure the father has access to information about her education and health.
Given the evidence of the father’s attendance at H Primary School and the threats made to the mother, I am satisfied orders should restrain the father, until further order, from attending at or near any kindergarten or school attended by the child.
Orders will provide for the father to communicate with the child by fortnightly letters and cards and small gifts on special occasions, sent by post. They are not to be hand delivered by the father or anyone else. He may also communicate by telephone on one evening in each week. I will fix the day as Wednesday but the parties can alter that to another day, if they are in agreement.
APPLICATION FOR A PASSPORT
The father was adamant that he would never agree to the child being taken out of Australia until that decision was in her hands, when she is eighteen. He said he would not allow her to leave the country or the state of Victoria, “under any conditions”. Cross-examined about this, he said the mother had never left the country and had no ties with anyone in Macedonia. He expressed concern about the health system in Macedonia which he described as “like a third world country”.
More cogently he expressed concern that pressure from the mother’s father could result in the child being taken to Macedonia and (he inferred) left there. He said :
This man, he had made a threat to me that because I have taken his daughter without his consent, he will make me pay back through my daughter, which is [the child]. So I fear, if they take her to Macedonia, I don’t know.
He said he would have no “authority or control” over what happened in Macedonia and he did not believe her family was responsible enough to care for the child properly there.
As her counsel conceded, the mother’s affidavit evidence did not address this aspect of her application in any detail. She would like to travel to Macedonia with the child early next year, for a holiday.
Macedonia is not a party to the Convention on the Civil Aspects of International Child Abduction.
Balancing the evidence and submissions, I am not satisfied orders should be made at this time which would allow the mother to obtain a passport for the child or remove her from the country. A regime of supervised contact should be put in place and should not be interrupted by overseas travel in the next twelve months. I will grant the mother liberty to reinstate her application for a passport and overseas travel in or after December 2009. The court would then be in a position to know whether supervised contact has been taking place as ordered and whether (as counsel for the father submitted was likely) the tensions between the parties have settled. On the evidence I am not as optimistic as counsel for the father but he might be right.
I am not satisfied the mother should be restrained from taking the child out of Victoria. The orders for supervised time will require her to live sufficiently close to GordonCare for them to be implemented. There is, however, no reason why she cannot take the child for a holiday outside Victoria provided it does not impinge on the father’s time with the child, pursuant to the orders.
I certify that the preceding
168 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.
Dated the day of 2008.
…………………………………………
Associate.
Key Legal Topics
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Family Law
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Civil Procedure
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Injunction
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