Waheed & Shahid (No 2) - [2025] FedCFamC2F 214

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Waheed & Shahid (No 2) [2025] FedCFamC2F 214

File number(s): PAC 2058 of 2019

Judgment of: JUDGE NEWBRUN

Date of judgment: 20 February 2025

Catchwords: FAMILY LAW – PARENTING – Best interests of child – Orders made.

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CD, 60CE, 61D

Cases cited:
Banks & Banks (2015) FLC 93-637

Jollie & Dysart [2014] FamCAFC 149

Tibb v Sheean (2018) 58 Fam LR 351

Division: Division 2 Family Law

Number of paragraphs: 162

Date of hearing: 2-4 December 2024

Place: Parramatta

Counsel for the Applicant: Mr Anderson

Solicitor for the Applicant: Mokhtar Law

Counsel for the Respondent: Mr Clifton

Solicitor for the Respondent: Ark Law Lawyers

Counsel for the Independent Children's Lawyer: Ms Hayward

Solicitor for the Independent Children's Lawyer: Sydney West Family Lawyers
ORDERS

PAC 2058 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS WAHEED

Applicant

AND:
MR SHAHID

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

20 FEBRUARY 2025

ON A FINAL BASIS THE COURT ORDERS THAT:
1.The child X born 2016 (“the child”) shall live with the mother.
2.The mother shall have sole decision-making responsibility for long-term decisions regarding the child.
3.The father may communicate with the child by forwarding to him letters and gifts on three occasions per year as follows:
(a)On the child’s birthday each year;
(b)At Eid Al Fitr;
(c)At Eid Al Adha.

4.For the purposes of Order 3:
(a)Within seven days the mother shall provide a postal address where the father can send the cards and/or gifts, and shall notify the father of any change to such postal address within seven days of the change occurring;
(b)The mother shall do all acts and things to ensure that the child receive such letters and gifts from the father, provided that the letters contain no denigration of the mother or another member of her family.

5.The requirement of consent of the father in relation to the application and maintenance of a current Australian passport for the child be dispensed with.
6.The Court requests that the Australian Federal Police remove the name of the child X born 2016, a male, from the Family Law Watchlist in force at all points of arrival in and departure from the Commonwealth of Australia.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION

This final hearing relates to X born 2016 (“the child”). The child is currently 8 years old and lives with the mother.
The father was born in 1985. He is now aged 39 years.
The mother was born in 1988. She is now aged 37 years.
The parties married in 2015.
The parties separated on 20 December 2018. They divorced in late 2021.
Interim orders were made by this Court on 10 October 2023, providing, inter alia, for the father to spend some supervised time with the child.
Following the interim orders, the child spent supervised time with the father on five occasions, namely 5 November 2023, 19 November 2023, 17 December 2023, 31 December 2023 and 21 January 2024.
On 29 February 2024, orders were made by consent suspending the supervised time between the child and the father. Those orders also provided for the engagement of Dr C, Family Therapist. There were three visits with Dr C where the child and the father were present.
The father is now an Australian citizen.
PROPOSALS
The mother sought orders as set out in her Amended Initiating Application filed 13 November 2024; inter alia, she sought orders that the child live with her and spend no time with the father.
At the commencement of the hearing, the father sought orders as set out in his Amended Response to an Initiating Application filed 29 November 2024; inter alia this Amended Response sought an order that the child live with the father. On the final day of the hearing, the father changed his proposal to seek final orders as set out in Exhibit J; inter alia, the father sought orders that the child live with the father for 3 months (and during such period the child spend professionally supervised time with the mother), and thereafter the child shall live with the mother, and spend time with the father during school terms each alternate Friday from 3.00 pm until 9.00 am Monday.
The Independent Children’s Lawyer (“the ICL”) sought orders as set out in her proposed minute of order (Exhibit I); inter alia, that the child live with the mother, the mother have sole decision-making responsibility for long term decisions for the child, and the father may communicate with the child by forwarding letters and gifts on three occasions each year.
MATERIAL RELIED UPON
The mother relied upon:
(a)Case Outline filed 29 November 2024;
(b)Amended Initiating Application filed 21 September 2023;
(c)Her affidavit filed 15 September 2023; and
(d)Her affidavit filed 7 November 2024.
The father relied upon:
(a)Case Outline filed 29 November 2024;
(b)Response to Initiating Application filed 29 November 2024;
(c)His affidavit filed 28 September 2023;
(d)His affidavit filed 7 November 2024;
(e)Affidavit of Ms L filed 28 September 2023;
(f)Family Report by Ms F dated 1 March 2021; and
(g)Family Therapist Report by Dr C dated 5 November 2024.
The ICL relied upon:
(a)Family Report by Ms F dated 1 March 2021;
(b)Family Therapist Report by Dr C dated 5 November 2024; and
(c)Judge Mansfield’s settled reasons for ex tempore judgment delivered 10 October 2023.
The following documents became exhibits:
(a)Exhibit A: Hospital discharge report;
(b)Exhibit B: Parenting after separation certificate of completion;
(c)Exhibit C: Mother’s exhibit tender bundle containing 202 pages;
(d)Exhibit D: Family Report by Ms F dated 1 March 2021;
(e)Exhibit E: Father’s tender bundle containing 59 pages;
(f)Exhibit G: Reports relating to the child including an asthma action plan, speech pathology letter and document from Dr M;
(g)Exhibit H: 1 x USB containing video recording;
(h)Exhibit I: ICL proposed minute of order;
(i)Exhibit J: Father’s final minute of order;
(j)Exhibit K: Father’s proposed interim orders.
EVIDENCE
In determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact, the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. Evidence of the parties relevant to the Court’s determination will be considered either in this section or whilst addressing the section 60CC considerations (ie section 60CC of the Family Law Act 1975 (Cth) (“the Act”)) (see below). In the event of any conflict between the evidence in this section and evidence referred to under the Court’s discussion under section 60CC, the latter evidence shall take precedence.
The mother’s demeanour during her oral evidence was one of calmness. She usually sought to give responsive answers in cross-examination although on occasion she did not give directly responsive answers and sought to give evidence favourable to her case. The father’s oral evidence was presented in a forthright manner. He usually sought to answer questions responsively.
The mother’s evidence
The Court does not propose to set out the entirety of the mother’s affidavit and oral evidence.
In chief, the mother stated that she had only last Friday received notice that the father now proposed orders that the child live with him and spend time with the mother.
The mother stated that there would be drastic and traumatic effects upon the child if the Court ordered that he now live with the father. In this context, the mother stated she was very concerned for the child, particularly having seen the effects upon the child of having spent supervised time with the father.
The mother referred to the child having experienced a panic attack last night at a shopping centre. The mother stated she did not know why this happened. She stated that she had never seen this occur before. She stated the attack happened all of a sudden and accelerated very quickly. She stated the child was crying for 30 minutes. The mother called an ambulance and they confirmed with her the child had suffered an anxiety attack.
The hospital discharge report, Exhibit A, refers to the child having experienced “some? panic attack kind of behaviour while in the [store] earlier this evening”. The report went on to state:
[The child had been suffering] some level of anxiety in the last year since he has been starting to see his estranged father. He stopped meeting with him as it reflected his behaviour. In addition, he has been suffering from [a speech disorder] and he has been seeing a psychologist and speech pathologist; due to improvement in his behaviour he doesn’t see psychologist anymore.
The mother stated that the child is very attached to her. She stated that the child was very used to the maternal grandmother.
The mother confirmed that she had concerns in relation to the father’s parenting capacity. She stated the father had not conducted day-to-day parenting of the child. She referred to the father’s long history of mental health issues. She confirmed that she had raised issues regarding alleged domestic violence perpetrated by the father and had alleged illicit drug use by the father. She stated she was concerned as to the father managing the child’s asthma. She referred to her concerns regarding the child’s negative views of the father.
As to paragraph 86 of the mother’s affidavit filed 15 September 2023, the mother clarified that the father had broken a lock on the door and had entered the holiday home.
The mother was asked whether, when the child was young, the father assisted in caring for the child, to which the mother replied that he did so in some situations.
The mother stated the child was able to communicate well and was a good speaker however he was exhibiting a speech disorder this year.
The mother stated that the child had had a lot of absences from school this year due to flu and asthma issues.
It was put to the mother that she did not like the father, to which the mother responded that she did not have any emotional connection with him as he was a stranger to her now.
The mother stated that the child has a few male role models in his life, and by way of example referred to her brother-in-law here in Australia.
The mother was asked whether she planned to take the child to Country G to which the mother stated she did not know because that was in the future.
The mother was cross-examined by the ICL.
As to paragraph 100 of the Family Report, the mother stated that the child had had disruptions to his sleep patterns during the time of his supervised visits with the father. For example, the child had had trouble getting to sleep on the night before the supervised visit. The mother stated that the child’s behaviour had regressed during the period of supervised visits; for example, the child was disrespectful to the mother.
The mother agreed that the child’s supervised time with the father and the family therapy sessions had not gone well.
The mother stated that she does not let the child know her feelings in relation to the father.
It was put to the mother that the child picks up on her negative views relating to the father, to which the mother replied that she did not know and did not think so.
The mother was asked whether it was valuable for the child to have an emotional connection with the father. The mother stated that her concerns in relation to the father (such as illicit drug use, mental health issues) outweigh the benefit of the child having a relationship with him.
The mother was asked to explain her earlier evidence that she thought there would be drastic effects upon the child if he was to now live with the father. The mother stated that the child was very attached to her. She stated the child was very used to living in the mother’s rented apartment where the mother and child had lived for the last six years. She stated the child loves the apartment, and his bedroom which was his place. She stated the child was not used to sleeping away from home and in fact he does not sleep away from home. She stated the child has his bedtime routines including the mother reading him bedtime stories, tucking him in, and spending daytime time with her. She said the child loves asking her questions regarding his homework.
The mother stated that the child’s asthma issue was partly physical and anxiety related.
The mother stated that the child’s last panic attack was in October 2023. She stated the child’s last asthma attack occurred a few weeks ago.
The mother stated she did a Parenting After Separation course in early 2024 being a course with at least six sessions online.
The mother stated that she could live with a court order allowing the father to send items to the child including gifts and letters on, for example, his birthdays. However, she stated that she would not want to be required to have any direct contact with the father. As to a court order requiring her to provide information to the father as to the child’s development, the mother stated that she would agree to such an order but, again, provided she did not have to have any direct contact with the father. She stated she would not want the father to know the address of the child’s school.
The father’s evidence
The Court does not propose to set out the entirety of the father’s affidavit and oral evidence.
It was put to the father that he has not had any experience raising children apart from with the mother. The father replied by stating that he was always in contact with children in his work at a hospitality business where he has a senior position. The father stated that his partner owns this hospitality business.
The father was asked about his proposal to have the child live with him. The father stated that he was only thinking about possibilities that might occur and that for the “sake of my son” he seeks that the child live with him if something was to happen. The father also stated that the reason for amending his proposal was “based on [Dr C’s] opinion”.
The father was asked whether there would be any adverse impact upon the child if he was to now live with him having lived most of his life with the mother. The father stated that there might be some effect but he thought he was capable of changing the child’s life in a very good way.
The father confirmed his understanding that the child did not want to live with him and that the child might resist coming to live with him. The father was asked how he would change that view of the child. The father stated, inter alia, that he might take the child to some places and have fun with him.
It was put to the father that he does not see any adverse impact upon the child if the child was to now come and live with him. The father stated that he doesn’t know if any such impact will occur and stated that the child might obtain help from a psychologist.
The father stated he has not seen the child suffer an asthma attack.
It was put to the father that he had a long history of mental health issues, to which the father replied that he had in the past.
The father stated he had been truthful with doctors regarding his suffering mental health issues regarding an assault upon him in immigration detention.
The father stated that his English was not good in 2015.
It was put to the father that he had obtained a fake passport in Country G, to which the father did not deny. It was put to him that he had a fake Country G passport and a fake driver’s licence, to which the father replied that it happened in 2011, a long time ago, and “we had to throw it in the sea”.
It was put to the father that he had told Dr N in 2017 that he tended to be easily irritated by others, to which the father replied that he did not recall.
The father confirmed that he had suffered a head injury in Country G in about 2008 and had had a CT scan in October 2011. In relation to that injury the father confirmed he had been in a coma after the accident for several days.
The father stated that in 2011 something big happened in his life; he had been attacked by several people and was beaten. He had depression after the attack but with the help of a psychologist he fully recovered.
The father stated that he is in arrears of child support some $5,638.
The father stated that his partner was aware of his application to the Court that the child live with him.
The father was asked whether there was any reason his partner gave evidence that he merely sought that the child spend time with him one to two days per week. The father responded by stating that their plan was to start with one to two days per week, with the child getting used to that, and progressing from there.
It was then put to the father that he was not asking the Court to order that the child spend time with him one to two days per week, to which the father responded that he knows what he put in his (amended) application but that these were possibilities that he discussed with his partner. It was put to the father that he needed to be clear to the Court regarding his proposed parenting arrangements for the child, to which the father responded that he had read Dr C’s report and her suggestion for the sake of the child’s health that he could stay “with us for two months”. The father confirmed that he had sought an order that the child live with him but that he did not know what the Court will decide.
The father stated that he speaks Country G language mainly in his home.
The father stated that he had used an interpreter at the final hearing of these proceedings to help him understand more complicated questions. He stated that his written English was not perfect although he can write his name. He told the court that he would have a little difficulty reading a Sydney newspaper in the English language.
The father stated he did not know the name of the child’s present school.
It was suggested to the father that it was unlikely to be easy to get the child to and from school each day if the child was living with the father, to which the father responded that they may have to change his school.
The father confirmed that he worked three days per week in his partner’s hospitality business. He maintained that if the child was living with him that he could pick up the child from school. The father was asked whether he works weekdays or weekends, to which the father responded that it all depended on the business’s bookings and their customers.

The father stated that he spoke with the child in English at the supervised visits.
The father stated that presently the child has a negative impression of him but he hopes in the future that he can change that relationship. He agreed that presently his relationship with the child was not a good one.
It was put to the father that if an order was made that the child live with the father the child was likely to be extremely distressed about living with him, to which the father stated “yes, I feel that.”
The father was asked what plan he had made to deal with the child possibly reacting adversely to living with him including experiencing panic attacks. The father responded that his plan was, before the child commenced living with him, to see the child’s treating specialist and speak to that doctor. He said he would try his best and that he thinks he could help the child not to get distressed.
It was put to the father that in reality if an order was made that the child live with him, that he was just going to see how it goes. The father replied that he has a basic plan and that he has, inter alia, prepared a special room for the child where he lives.
The father agreed that presently he does not really know the child.
The father stated that he only has an Australian passport.
Ms L
This witness, the father’s partner, swore an affidavit and gave oral evidence. The Court does not propose to set out such evidence in its entirety.
The witness lives with the father and her 23-year-old daughter in her own home. She owns a hospitality business. The father works on a casual basis there. She works full-time in the business. She has a positive relationship with the father and he has never verbally or physically abused her. She has never been concerned with the father’s mental health.
The witness stated that she would be willing to supervise time between the child and the father should the Court consider this necessary.
The witness stated that her English was not good and she speaks Country G language with the father at home.
The witness stated she has not met the child. She was not involved with family therapy with Dr C.
The witness stated that she was aware of the father’s application to see the child. The witness was asked what that application looked like in terms of how often the child might see the father, to which the witness replied “one or two days a week”. She then stated that she knew the father was seeking for the child to live with him and in this context also stated that “we are happy with one or two days”.
The witness stated that her business was closed on Mondays and that she works from Tuesday to Sunday from 12.00 pm to 10.00 pm. The witness stated she has a mortgage loan of $1.3 million which she is servicing. She stated that the father works in the business three to four hours each day at peak time from 2.30 pm/3.00 pm until 6.00 pm/7.00 pm.
Dr C, psychologist
Dr C was the parties’ agreed family therapist. She provided family therapy for the family.
Dr C swore an affidavit and gave oral evidence. The Court does not propose to set out the entirety of that evidence.
Dr C’s written report, relating to family therapy, was attached to her affidavit and was dated 5 November 2024.
At paragraph 14 of her report Dr C stated, inter alia, that she was of the opinion that the child has internalised “the relentless abuse of [the father) by [the mother] in his first two years of life that has been reinforced by the mother’s subsequent behaviour since the marriage ended.” Dr C stated that the child has internalised the strong maternal aversion towards the father. Dr C stated that what the child needs is the opportunity to develop an alternative internal representation of the father from his own personal experience of him.
Dr C stated that the child has never been able to form his own thoughts about seeing the father because he was fully engaged in attempting to comply with the mother’s contradictory messaging. Dr C stated that the child acted out his confusion and frustration with escalating behavioural disturbance and psychosomatic symptoms. Dr C stated that to reverse the state of affairs would require intensive contact with the father. She stated that further delay of first person contact will continue to cement the child’s current perceptions, which are mirroring those of the mother. She stated that if this situation continues, it will be unlikely that a bond will ever develop between the child and the father.
Dr C stated that the child would benefit from contact with the father as a means of overcoming his current aversion, which is not genuinely his own, but a maternal introject that has not been thought about or processed.
Dr C stated that given the mother’s intractable position regarding compliance with assisting in the establishment of a relationship between the child and the father, the only remaining option is a change of residence: the child live with the father and have regular (e.g. twice-weekly) supervised contact visits with mother during the period of his relocation. She stated that the father has indicated that he will ensure that the child continues to attend the same school as currently and that he will facilitate all of the child’s extracurricular activities and other needs as required.
Counsel for the ICL questioned Dr C.
Dr C confirmed that she had not been provided with any of the parties’ Court documents in these proceedings.
Dr C stated that today she had been provided with a transcript, being Annexure A to the father’s affidavit filed 28 September 2023, relating to conversations in the Country G language between the parties in about early 2015. Dr C stated that that transcript bore a close correspondence with English translations of those conversations provided by the father to her during the course of family therapy. Dr C stated that she had listened to the recordings of those conversations in the Country G language having acknowledged that she does not speak the language.
Dr C stated that her reference in her report to the child having developed psychosomatic asthma was based upon her own observations of the child, and her discussions with the mother who related to her that the child’s paediatrician had told her the child had this diagnosis. Clarifying Dr C stated that the mother may not have used the term psychosomatic but she had stated that “these physical manifestations were due to heightened anxiety. And that’s what the paediatrician had told her.”
As to Dr C’s opinion in her report that the child had internalised the relentless abuse of the father by the mother in his first two years of life that has been reinforced by the mother’s subsequent behaviour since the marriage ended, she stated that her opinion was based upon recordings of conversations between the parties provided to her by the father, her detailed history of the marriage taken from the parties including (their reference to) occurrences in the marriage, and police attendances or the mother’s attendance upon the police relating to her allegations of domestic violence. In this context, she stated that the parties’ relationship was a very conflicted and hostile one which was supported by the above recordings revealing the mother screaming hysterically at the father for long periods of time. Dr C confirmed that in taking the above history of the marriage from the parties she had relied upon their verbal account together with the above recordings and no other documentation.
Dr C’s attention was drawn to an email that she had sent to the parties on 26 May 2024 in which she had stated, inter alia, that she was of the opinion that the child should spend a period of time living with the father as the mother was unable to facilitate contact between the child and the father. Dr C stated that she didn’t specify very much about that opinion in previous discussions with the parties and, “was just canvassing the opinions of the parents as to taking that course of action. So may have said for a short or longer term, but I didn’t specify short-term or long-term.” This further evidence was given by Dr C:
MS HAYWARD:        So you certainly weren’t specific when in any discussions with either of the parents that a change of residence should be a forevermore proposition in your opinion. You didn’t say that to anyone?
WITNESS:No. No, I didn’t.
MS HAYWARD:        And in terms of the – or that opinion that you have expressed, what I’m understanding from what you’ve just said is you expressed the opinion with the idea that it would be a topic for discussion. Is that right?
WITNESS:Yes. An option for moving forward. Yes. That’s in the context of discussing what are the options remaining to try to establish some sort of connection between [X] and his father.
MS HAYWARD:        And I take it that your expectation was that, at some point, you would have some more involved conversations with both the mother and the father about this possibility and how it might look and how you might make it work?
WITNESS:Yes. Yes.
…
MS HAYWARD:        And isn’t it also the case that when you formed that opinion that it was something that was up for consideration, that you anticipated that that would be done with the support of some ongoing therapeutic assistance?
WITNESS:Definitely, yes. Yes.
MS HAYWARD:        And not in the absence of therapeutic assistance?
WITNESS:That’s right, yes.
Counsel for the mother questioned Dr C.
Dr C’s attention was drawn to her report of 19 December 2023 in which she stated, inter alia, that, “Since being advised that he was to meet his father, (the child) has experienced an exacerbation of his asthma which has, on two occasions, require an ambulance and attendance at hospital. After several asthma attacks, the paediatric respiratory physician determined that there was an anxiety component to (the child’s) asthma.” Dr C confirmed that she was not a respiratory physician or a paediatrician.
Dr C confirmed her understanding that the father did not have any experience of caring for a child of the child’s age at the time of the supervised visits.
Dr C stated her understanding that the child does communicate with the mother in Country G language.
Dr C confirmed that the child was screaming hysterically and kicking in the car, prior to the start of the second family therapy session, when the mother was seeking to remove the child from the car.
As to paragraph 20 of Dr C’s report, wherein Dr C stated, inter alia, that the only remaining option was a change of residence for the child (that is, for the child to live with the father), Dr C stated that a change of residence was a drastic option for the child and was not recommended until all other avenues of reunification had been tried. She stated that a change of residence was a challenging option. She acknowledged that the child had a significant attachment to the mother.
It was put to Dr C that to change the child’s residence would likely cause the child significant psychological trauma and stress. She responded by stating that that proposition would need to be tested because the child had not been able to develop his own relationship with the father. When the above proposition was put again to Dr C, she stated that it depended on what sort of contact could be maintained with the mother. She stated that she had recommended that the child have regular contact with the mother so that their bond was maintained. She referred, in this context, to the child being sufficiently prepared for a change of residence, and reassured that he would have continuing contact with the mother.
Counsel for the father questioned Dr C.
Dr C stated her understanding that the child does not have any male role models in his current family configuration.
As to paragraph 20 of Dr C’s report, Dr C was asked whether if the child was to live with the father the child could cope emotionally. Dr C stated that there would probably be some “tantruming” by the child in the beginning. She stated, however, that with careful handling as the child gets to know the father, and if the father was trained very carefully in how to manage the tantrums non-punitively, and a routine was established, and contact with the mother was maintained, that it was possible.
Dr C confirmed that after a period of time of the child living alone with the father, a further arrangement could then be considered. In this context, Dr C referred to paragraph 20 of her report in which she had referred, inter alia, to “during the period of his relocation” and stated that she had not specified in her report whether the change of residence would be short or long. She stated that it would depend on the responsible parties to the arrangement, and it would have to be monitored very closely on an ongoing basis to determine whether the child was benefiting from the arrangement. As to the period of time alone with the father that would be necessary, in this context, this evidence was given:
MR CLIFTON: What period of time alone with the father do you think would be necessary? Let’s say the court ordered the change of residence. What period of time would be sufficient for [X] to get to know his father and form an independent view of him?
WITNESS:Well, a rule of thumb is three months because that would be sufficient time to see whether there was any meaningful shift in the relationship between father and son, and you know, it has to be guided by the child’s reaction and also whether the father can tolerate it, you know. I mean, if [X] has unrelenting tantrums and feels that he can’t cope, well, then, that would have to be assessed along with [X’s] reaction. So it would have to be monitored very closely on an ongoing basis.
Family Report
The author of the Family Report dated 1 March 2021 was Ms F, Family Consultant. She interviewed the family members beginning in late December 2020 and then in early February 2021. She had held a Child Dispute Conference with the parties in September 2019. In the Family Report she stated that she had reviewed the material set out at pages 2 and 3 of the Family Report. Prior to the final hearing she reviewed the parties’ affidavits relied upon for that hearing.
The Court does not propose to set out the entirety of the Family Report.
As to the father’s background, the Family Report writer stated in paragraph 9:
9.[Mr Shahid] arrived in Australia in 2010 and was granted a protection visa which was cancelled around 2018 due to concerns that he falsified information in order to obtain a visa. [Mr Shahid] lodged an application to review the cancellation of his visa with the Administrative Appeals Tribunal (AAT) and in […] 2020 the AAT affirmed the decision to cancel [Mr Shahid’s] visa. [Mr Shahid] currently has an application before the Federal Circuit Court to review the AAT's decision.
As to the child’s safety and wellbeing, at paragraph 18 the Family Report writer stated:
18.[Ms Waheed] alleged that [Mr Shahid] had no patience with [X] and would become irritable and yell at [X] when he ([Mr Shahid]) was tired. She reported further concerns that [X] may be exposed to [Mr Shahid’s] alleged poorly managed mental health conditions and/or his alleged drug use.
In relation to the topic of mental health, the Family Report writer stated:
22.[Ms Waheed] denied being diagnosed or treated for any mental health conditions. She alleged that [Mr Shahid] engaged in self harming behaviours throughout their relationship and that he has a history of instability in his mental health state.
23.[Mr Shahid] reported that he was diagnosed and treated for depression as the result of an assault that occurred whilst he was in an immigration detention centre in 2011. He reported that he has accessed the support of psychologist to assist him with dealing with feelings arising from not being able to spend time with [X] but denied any problems arising from his mental health.
As to the mother managing the child’s behaviour, the Family Report writer stated:
32.[Ms Waheed] explained that by virtue of being a child there are times when [X] will "cross boundaries" but said that he requires little redirection to address his behaviour.
As to the father, the Family Report writer stated:
39.[Mr Shahid] said that one of the challenges in parenting [X] was seeing [X]when he was crying or "suffering". He said that it bothered him because he did not know what to do to help [X].
In relation to family violence, the Family Report writer stated:
54.[Mr Shahid] alleged that [Ms Waheed] was verbally abusive towards him during their relationship, stating that she would yell and scream at him. He reported that he has several audio recordings of her and said that he recorded her because "it would be good to have some evidence". [Mr Shahid] said that he would try and avoid engaging with [Ms Waheed] but said that he may have verbally retaliated when he was really angry.
In relation to child safety and wellbeing, the Family Report writer stated:
56.[Ms Waheed] described [Mr Shahid] as having no patience with [X] when he was infant. She said that he would become agitated, yell at [X] and ask [Ms Waheed] to take [X] away.
As to mental health, the Family Report writer stated:
63.[Ms Waheed] reported that she first became aware of [Mr Shahid] having problems with his mental health the night of their wedding, stating that he had an emotional breakdown. She said that he was often anxious, tired and wanted to stay in bed. [Ms Waheed] reported that about six months into their marriage, she had to call an ambulance before [Mr Shahid] was hitting his head against a wall. She said that [Mr Shahid] was take to [O Hospital] where he threated to pop his eyes out with a hook. [Ms Waheed] said that [Mr Shahid] was admitted to the Mental Health Unit […]. [Ms Waheed] said that there were other occasions during their relationship in which he threatened to harm or kill himself. She said that he would make her feel as though she was at fault for making him want to hurt himself and said that this made her reluctant to raise any concerns she had to avoid him injuring himself.
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65.[Mr Shahid] reported that he was diagnosed and treated with depression following an assault in 2011 whilst he was in a detention centre. [Mr Shahid] reported that he was treated with medication and has accessed the support of a psychologist. He said that he is not currently treated with medication. [Mr Shahid] said that he is recipient of a disability pension as a result of injuries sustained during the assault. He reported that he was also recipient of a compensation payment as a result of his injuries.
66.[Mr Shahid] denied being involuntarily admitted to hospital for mental health related issues. He said that he was taken to Hospital via ambulance on one occasion in 2015. [Mr Shahid] reported that there had been conflict between the parents and he felt the only way he could leave the home was with the assistance of medical practitioners. [Mr Shahid] denied engaging in any self‑harming behaviours such as banging his head against the wall. Information obtained by subpoena (Sleeve One: [O Hospital]) documented that [Mr Shahid] was admitted to hospital with paranoia, hallucinations, hypervigilance, nightmares and an increase is (sic in) domestic disputes, in the context of a diagnosis of post traumatic stress disorder (PTSD) as the result of being assaulted whilst in a detention centre. Further information obtained by subpoena (Sleeve Two: [P Medical Centre]) described [Mr Shahid] as being severely impaired psychologically with diagnosed conditions for PTSD, a sleeping disorder, adjustment disorder, anxiety, depression and suicide ideation in the context of being assaulted whilst detained in a detention centre. The information also documents that [Mr Shahid] was treated with psychological support and medication for his mental health state and pain medication to treat [an] injury sustained during the assault.

Under the heading Evaluation, the Family Report writer stated, inter alia:
88.[X’s] relationship with [Mr Shahid] was not assessed by observation. [Mr Shahid’s] account was that he and [X] shared a close and positive relationship up until the parents separated. During interview, [Mr Shahid] presented as wanting to have a relationship with and spend time regularly with [X]. [Mr Shahid] had limited capacity to identify the possible challenges for [X] if they were to spend time together and has suggested supervised time to enable their relationship to gradually develop. [Mr Shahid] may also have some developmentally unrealistic expectations of [X], as he stated a belief that [X] would be able to remember him. Given [X’s] young age at the time of the parents' separation, it is very unlikely that [X] will have the ability to recall [Mr Shahid], particularly as [Ms Waheed] has not had the ability and/or willingness to include [Mr Shahid] in [X’s] life narrative. It seems very unlikely that [X] would have an established relationship with [Mr Shahid] because of these factors.
89.During interview, [Ms Waheed] stated a belief that [X] would be at possible risk of harm if he was to spend any time with [Mr Shahid] because she alleged that [Mr Shahid] had poorly managed mental health problems, was using [illicit drugs], that [Mr Shahid] exposed [X] to family violence, and, that he was inpatient, irritable and generally uninterested in [X], prior to the parents' separation. [Ms Waheed] identified that given [X] seemed unaffected by [Mr Shahid’s] absence from his life, and her belief that [Mr Shahid] is likely to have to leave Australia, she has not maintained a narrative about [Mr Shahid] and his role in [X’s] life. It would appear that [Ms Waheed] had limited capacity to reflect on the possible impact on [X] in not having relationship with, or having knowledge of, [Mr Shahid]. If there is veracity to her concerns that [Mr Shahid] may pose unacceptable risk of harm to [X], then this may mitigate her reluctance to be inclusive of [Mr Shahid] in [X’s] life, even at a narrative level. If, however, it is determined that [Mr Shahid] does not pose unacceptable risk to [X’s] safety and wellbeing, it may be that [Ms Waheed] is unable and/or unwilling to support [X’s] relationship with [Mr Shahid]. It does not appear that she is purposefully undermining [X’s] relationship, but rather more likely, she has formed the belief that [Mr Shahid] is an unsafe parent and unlikely to be in Australia in the foreseeable future so has simply allowed [X] to forget that he has a father.
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91.Each of the parents has alleged that the other has perpetrated family violence against the other during their relationship and this may require determination by the Court. [Ms Waheed] has alleged that [Mr Shahid] has a physically assaulted her on three occasions, was verbally abuse and emotionally manipulative through their relationship. She described a history of the parents engaging in arguments that escalated to screaming and yelling towards one another. [Ms Waheed] further alleged being pressured by [Mr Shahid] in relation to sexual activity. She was reluctant to discuss this issue in detail, citing cultural and religious reasons, so it is difficult to assess whether this was within a dynamic of family violence and sexual assault or if there were other relationship dynamics. [Mr Shahid’s] account was that [Ms Waheed] used his relationship with [X] as a means of controlling him that she was verbally abusive, such as calling him names, and that reported a few instances of her pushing him. He further alleged that [Ms Waheed] engaged in controlling behaviours towards her (sic him) that made him feel as though he could not maintain friendships and had little financial independence from [Ms Waheed]. It would appear that the parents' accounts, based on the available information, is most consistent with situational couple violence, however this may require determination by the Court. Although the level of physical assaults alleged is likely to have placed one or both parents at risk of their physical safety, it does not appear that this has occurred in within a dynamic of coercion and power. It would also appear that once the parents separated, there has been no further family violence reported.
92.If the Court finds that the parents engaged in conflict instigated violence, it may be regards the family violence within the parents' relationship was the consequence of an inability to resolve conflict and difference. Couples engaged in family violence of this type tend to have limited problem-solving skills and responses to conflict that include aggressive outbursts, arguments, insults and demands that, if not met, can escalate to physical altercations. If the Court determines that the family violence was founded on an inability to resolve conflict consideration could be given to the parent with who [X] lives with having sole parental responsibility. It would also be likely to be of benefit to [X] if his transitions, should time be ordered, occur in a neutral environment to limit the parents coming into direct contact. This may ultimately protect [X] from possible exposure to his parents' conflict.
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94.[Mr Shahid] has reported being diagnosed and treated for depression after he was victim to an assault whilst detained in an immigration detention centre. Experiencing a traumatic event, such as an assault, would likely have had a negative impact on [Mr Shahid’s] mental health state, at least in the short term it may be that there continues to be some residual effects of his experience. His account however is that with treatment he has been able to process his experiences and currently does not have any concerns about his mental health state on his daily functioning. Information obtained by subpoena in Sleeve and Sleeve Two appears to suggest that [Mr Shahid] has been diagnosed with a number of mental health conditions, possibly in the context of trauma prior to his arrival in Australia and then as a result of an assault, including, PTSD, an adjustment disorder, a sleeping disorder, depression and anxiety. It is noted, however, that this information is yet to be tested in Court.
95.It does not appear to be in dispute that [Mr Shahid] was taken to hospital and admitted for assessment of his mental health state in 2015. [Ms Waheed’s] account of [Mr Shahid’s] mental health state is that he had engaged in self harming behaviours and threatening to commit suicide and that his mental health issues were present throughout their relationship. [Mr Shahid’s] account was that he felt harassed by [Ms Waheed] and that there were high levels of conflict between them and he felt he had no other way to be able to leave the home unless he did so by agreeing to go to the hospital via ambulance.
96.If the Court accepts [Mr Shahid’s] account of his mental health state, then it would seem positive that [Mr Shahid] has been able to, accept and engage with treatment to address his diagnosed mental health needs. If [Mr Shahid’s] mental health state is as he described, than this does not appear to suggest that his current mental health state would pose risk to [X’s] safety and wellbeing if orders were made for [X] to spend time with him. However, [Ms Waheed’s] account, if the more accurate, of [Mr Shahid’s] mental health state, may suggest that there is a risk that [X] will be exposed to [Mr Shahid’s] poorly managed mental health state.
97.… As such, it is likely to be of benefit to the Court if [Mr Shahid] can provide current information about any diagnosed mental health conditions, his treatment and the impact of non-compliance of treatment on his parenting of [X], to ensure that [X’s] safety and wellbeing if he is to spend time, including supervised time, with [Mr Shahid].
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99.There is some dispute between the parents about [Mr Shahid’s] involvement with [X’s] care prior to separation but it does not appear to be in dispute that [X] has been primarily cared for by [Ms Waheed] since December 2018. Based on this, and given [X’s] age and developmental stage, it is likely his relationship with [Ms Waheed] is his primary relationship. Observations of the [X] with [Ms Waheed] would appear to support the primacy of [X’s] relationship with [Ms Waheed]. Given [X’s] age and developmental stage, in addition to the fact that it would appear that he has spent very little time separated from [Ms Waheed], he is likely to find any significant changes to his time and/or relationship with [Ms Waheed] as highly distressing and difficult. Similarly, he is like to be very sensitive to [Ms Waheed’s] emotional state and wellbeing as he is completely dependent on her for his care. As such, if it is likely that there will be a significant change to [X’s] relationship with [Ms Waheed] will require very careful consideration.
100.Children around [X’s] age will often respond to significant changes and/or stressors in their lives in a variety of ways but most notably through their emotional presentation and changes in their behaviour. This is because children in his developmental stage still have limited capacity to process experiences verbally, although at [X’s] age he will have some capacity to do so, at least partially. If time with [Mr Shahid] was to commence, even on a supervised basis, [X] may regress in his behaviour, such as having difficulties separating from [Ms Waheed], disruption to his sleep patterns, regression in toileting and may also result in him displaying emotional difficulties otherwise expected of younger children such as frequent tantrums, emotional sensitivity and/or aggression. [Ms Waheed’s] unwillingness and/or inability to support a relationship between [X] and [Mr Shahid] may also play a role in any observable difficulties or regressions for [X]. That is not to say that change should be avoided, rather, it is important for parents to be aware of possible reactions and to support children accordingly. Effective management of change by parents, may in fact contribute to children developing resilience to cope with change in the future. In this instance, if the parents are able to effectively manage [X] reintroduction of a relationship, and time, with [Mr Shahid] then he may also have the added benefit of developing a meaningful relationship with his father in addition to being able to cope with change.
101.There would be several parenting skills that are likely to contribute to the success of [X’s] reintroduction of a relationship, and time, with [Mr Shahid]. Firstly, each of the parents would need to manage their own emotional distress to [X’s] possibly negative emotional and behavioural responses to his reintroduction to [Mr Shahid]. Each of the parents would also need to be able to respond sensitively to [X’s] needs as they emerge but also remain firm in facilitating his time with [Mr Shahid], even if [X] is resistant. Given the apparent primacy of his relationship with [Ms Waheed], and the fact that [X] is likely to continue to live with her, it may be that [Ms Waheed] will experience and be mostly responsible for managing [X’s] emotional and behavioural reactions. Given [Ms Waheed’s] reported views of [Mr Shahid], including her views that [X] will be unsafe with [Mr Shahid], she is likely to experience any disturbance to [X’s] emotional and behavioural presentation quite negatively, at least some of the time. Therefore, she may benefit from support to assist her in understanding [X’s] needs and having an outlet to process her own emotional experiences so as to protect [X] from any additional stress should he attune to [Ms Waheed’s] emotional state about this issue. Given the likelihood that this experience will be highly disruptive to [X], a crucial component to the success of this process, will be consistency, and each parent will have a role in this. If there is any uncertainty or inconsistency, once time has commenced, then this likely to exacerbate [X’s] emotional sensitivity and behavioural changes and may in fact lead to more significant issues in his overall development.
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103.It is not in dispute for [X] to live with [Ms Waheed], and although neither parent seeks a change this would not be recommended in any case given the level of disruption and the likely adverse impact this would have on [X]. Despite her limited capacity to be inclusive of [Mr Shahid] in [X’s] life, it appears that [Ms Waheed] is otherwise able to meet [X’s] needs. Therefore, it is recommended that orders be made that provide for [X] to live with [Ms Waheed].
The Family Report writer gave oral evidence. The Court does not propose to set out the entirety of that evidence.
The Family Report writer was asked whether she had an initial view about whether she would support a change of residence for the child and she stated:
I do have concerns about that proposal in terms of [X’s] development and well-being. There’s some, I guess, questions or some information that I think is missing for me to really be comfortable with that position.
Counsel for the ICL put these matters to the Family Report writer relating to the parenting capacity of the father in managing the child should the child transition into his care, and the following evidence was given:
MS HAYWARD:        The father conceded during the course of cross-examination that, firstly, during the course of his cross-examination by Mr Anderson, who appears on behalf of the mother, the father gave some evidence that he was of the belief that himself and [X] had a good relationship. And later in cross-examination he accepted that that was not so, at least now, but what he hopes is that he will be able to develop a good relationship. He also conceded that, essentially, he is a stranger to [X] and [X] really is a stranger to him. So in terms of the current state of affairs, isn’t it the case that if this court were to make orders such as those sought by the father, the court would need to be extremely confident about the father’s capacity to deal with that relationship building, which will be starting, essentially, from scratch?
WITNESS:Yes.
MS HAYWARD:        And I know you haven’t seen the family for a long time, but in terms of your understanding, have you seen anything in the material that would give the court confidence that the father is capable of doing that relationship building?
WITNESS:The material is somewhat limited for the reasons you’ve outlined. There was nothing that stood out to me to really help me understand how [Mr Shahid] could demonstrate that capacity. So when I think about the contact visit reports, for example, and I appreciate there was a language barrier, and I do want to acknowledge that, but he didn’t necessarily seem forthcoming or able to respond to [X] in a way that was really, (a) responding to [X’s] emotional needs or presentation during those visits, and really kind of leading or going confidently in those sessions.
MS HAYWARD:        And you may be aware that [X] recently has been displaying some difficult behaviours including tantrum type behaviours. There’s been some evidence about [X] having some problems with asthma and anxiety that seem to be interlinked; were you aware of that?
WITNESS:Yes.
MS HAYWARD:        And I would suggest that it’s highly unlikely that [X] would be able to go from being solely in his mother’s care to solely in his father’s care without a significant level of distress; is that right?
WITNESS:Yes.
MS HAYWARD:        And in terms of that expected significant level of distress, are you able to assist the court with what that might look like?
WITNESS:Given [X’s] presentation at contact visits at transitions for the family therapy sessions, I would expect probably a replication of those externalising behaviours, resistance, anger, big emotions, lashing out towards others. There’s also a bit of a sense through the contact visit reports that he could potentially become quite depressed and very withdrawn, because that’s certainly a feature. So I would expect the possibility of both of those occurring if he was to move into his father’s care.
MS HAYWARD:        And for a parent who doesn’t have an existing relationship with a child, to manage those types of behaviours, it’s extremely difficult to say the least, isn’t it?
WITNESS:It would be very challenging, yes. It would be very challenging.
MS HAYWARD:        And it requires a level of sensitivity and understanding about the child’s needs; doesn’t it?
WITNESS:And also that parent’s own emotional needs, because being faced with that level of distress can equally be quite confronting and distressing for a parent. So it’s – for that parent to have the ability to be sensitive and attune and respond appropriately to the child whilst simultaneously looking after their own emotional state, which can be really challenging in other circumstances where we don’t have this kind of situation.
MS HAYWARD:        And it also requires, I think you mentioned before, a level of confidence from the parent who’s trying to establish that new world order; doesn’t it?
WITNESS:Confidence and an understanding of child development. To be able to understand why a child might be behaving in a particular way and not make the assumption that it’s because a child’s being naughty or disobedient, to build a better understanding of what’s going on and respond to that need, rather than being punitive as well, I think is a consideration.
HIS HONOUR:        If it’s not managed well, if there’s a, hypothetically, the child transitions into the father’s full-time care and the child demonstrates this adverse behaviour that you’ve been discussing with counsel, and let’s assume it’s not managed well by the father, is there any prospect or not of significant emotional damage to the child?
WITNESS:There is, and if it was to be prolonged, I would imagine that it could result in a mental health diagnosis, mental health treatment and more substantial clinical concern long term for that child.
MS HAYWARD:        And you would be aware from reading both the updating affidavits and the report prepared by [Dr C] that she at least made a suggestion to the parties of doing a change of residence for [X], and you can take from me that she gave evidence yesterday which was very consistent with what she says in her report. Does the view of [Dr C] change your position at all in terms of whether you would recommend a change of residence for [X]?
WITNESS:No. I would consider what [Dr C] has proposed and some of the concerns she has raised, but it doesn’t necessarily change my position.
MS HAYWARD:        Now, in terms of the possibilities, we’ve discussed the possible change of residence. Can I ask you about whether or not you have a view as to whether there’s any utility at all in trying to re-establish a regime of time between [X] and his father, given what has occurred with the supervised visits and the family therapy?
WITNESS:Based on the information available, I would have concerns that it would be successful even if it was ordered, because that is the case. Time was ordered and it hasn’t occurred.
MS HAYWARD:        And I’m suggesting that it’s highly likely that if we tried to give that another go, it’s very likely to go in a similar manner, if not potentially worse?
WITNESS:That’s what I would expect.
MS HAYWARD:        Now, in terms of other options, the mother is seeking an order for no contact, but I wanted to canvas with you this possibility. If an order were made for [X] to receive cards, letters, gifts, those types of orders, you’re aware that those types of orders are made in this court?
WITNESS:Yes.
MS HAYWARD:        And if an order like that were to be made, is that the type of order that you would recommend or not?
WITNESS:It’s really difficult to predict, because that type of arrangement relies on the parent the child lives with to facilitate and accommodate that anyway. So it may not – the intended purpose might not come to fruition. However, having that kind of arrangement available, if things were to settle in this system, it leaves the line open for [X] to be able to reconnect with his dad in the future.
MS HAYWARD:        And in that respect, the mother gave some evidence in the witness box when she was asked about this particular issue, that she thought that that was something that she could facilitate on the condition that she didn’t have to have any direct contact with the father. Does that give you any confidence that the mother would make that experience positive for [X]?
WITNESS:Again, a really complex question. Based on, I guess the information I’ve been provided so far my experience of the family through my assessment processes, I think there might be a discrepancy between intention and ability, and I’m not sure. I think the intention probably is there, but I’m just not sure how it would actually come about. If it would be carried out as intended.
MS HAYWARD:        And in terms of that possibility of cards and letters, if we’re to balance the positives of, well, I should tell you what I think the positives are. As I understand it, the positives of that type of arrangement are, essentially, keep a door open for [X] to perhaps connect with his father in the future when he’s a little bit older, and also to have some understanding of his father, which he certainly didn’t have when you saw him. Are those sort of the positives of that type of arrangement, in a general sense?
WITNESS:Yes.
MS HAYWARD:        And in terms of weighing those positives against the possibility that the mother struggles with making a positive experience for [X], do you have a view about whether on balance either of those options is better?---I guess for me, I think about providing as much opportunity for [X] to connect when and if possible. That might be the only avenue that the court is able to facilitate that for him. So in that respect, it could be helpful. It’s obviously going to be a much less intense process for [Ms Waheed], this style of contact in communication, so perhaps won’t be as confronting or emotionally distressing for her, so with time perhaps that would settle.
MS HAYWARD:        So as at this point in time, and Mr Anderson and Mr Clifton need to ask you some questions as well, but as at this point in time, am I understanding that you’re swaying towards [X] continues to live with his mother, that she have parental responsibility or decision-making, and that we give some consideration to possibly some orders for cards, gifts, letters?
WITNESS:Unless – unless there’s unacceptable risk of harm in [Ms Waheed’s] household, then yes, that’s my position at this stage.

Counsel for the mother questioned the Family Report writer as to what effect a change of residence for the child might have on his attachment to the mother and this evidence was given:
MR ANDERSON:       You’ve given some evidence as to the type of issues that you would be concerned about if there was a change in residence, and his Honour asked you some questions about if the transition wasn’t managed well. Is it your understanding that disruption of that attachment between [X] and his mother would likely have some severe and traumatic consequences for [X]?
WITNESS:Yes.
MR ANDERSON:       And based upon his presentation, in terms of his contact with the father, the contact reports that have been written, and also in terms of the family therapy that’s been conducted, your prediction is that it’s likely that he will react in a similar way to such a change?
WITNESS:Yes.
MR ANDERSON:       And a long-term sequelae of that sort of disruption in the attachment process, because he has a secure attachment to his mother, is likely to result in some long-term mental health outcomes; negative outcomes?
WITNESS:It could do, certainly if it’s not managed well..
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MR ANDERSON:       The mother holds some concerns about the safety environment in the father’s care, based upon her experience of him and the issues that she’s raised, in particular in terms of his self-harming behaviour, his mental health issues, his admitted drug use. Although there seems to be some evidence that to July last year, that he was not using any illicit drugs, and also, the father’s capacity to manage, in particular the asthma diagnosis for [X], those concerns that she holds. If those concerns are not able to be allayed, will that, in your assessment, affect the custodial relationship or the parental relationship between the mother and [X]?
WITNESS:I think [X] would be very sensitive to his mother’s emotional state, her concerns and worries about him, and I do think it has the potential to impact their relationship.
MR ANDERSON:       And impact adversely for [X]?
WITNESS:Yes.
The Family Report writer was questioned as to the therapy provided to the family by Dr C, and this evidence was given:
MR ANDERSON:       I’m just dealing with the therapy provided by [Dr C]. Would you agree that it would appear that firstly the supervised contact was not successful in terms of establishing a relationship for [X] with his father?
WITNESS:                Yes.
MR ANDERSON:       And it would appear that the family therapy provided by [Dr C] has resulted in a hardening, if I can call it that, of [X’s] views in relation to his father?
WITNESS:                As reported.
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MR ANDERSON:       And any further family therapy is likely to be futile; would you agree with that?
WITNESS:I think it’s unlikely family therapy is going to assist this situation further.
The Family Report writer was questioned as to whether there might be any impact upon the mother emotionally should the child live with the father and any effect upon her parenting capacity, and this evidence was given:
HIS HONOUR:          Just while that next question’s being formulated, assume that the court orders the child to live with the father, and assume that to date, during this child’s life, he’s had a very close attachment to the mother. Assume in conjunction with the court ordering the child live with the father, as proposed by the father now, the mother merely, at least in the interim, merely spend supervised time with the boy. Do you have any view as to whether that state of affairs, those arrangements, might impact emotionally upon the mother? And if so, what effect that might have on her own parenting capacity for the child?
WITNESS:One of the things that would really assist in that process is the capacity of both parents. If we just focus now on [Ms Waheed], in those contact visits she would – to make it work best for [X], she would have to have a very clear, non‑blaming narrative about what’s happening and why. It would require her to be very aware and attuned to her emotional responses and to manage that appropriately when she’s spending time with [X]. Equally, when it’s time for him to transition back to Dad’s care. So I would see those junctures as being very difficult for [Ms Waheed] to manage, and you do see that in the contact visit reports at the transitions, particularly the last two of the supervised, where there’s this kind of deference to [X] to make decisions. So my sense is that it would be really challenging for [Ms Waheed]. I don’t know how emotionally available and present she would be to [X] during that time, and that equally, would have a detrimental impact on [X] and his experience of that and his mother.
HIS HONOUR:          Well, just assume that the mother does not manage that supervised time between the child and herself well. Both the mother towards the child and the mother’s management of her own emotional position. Could that impact negatively upon the mother?
WITNESS:Yes. I think she would probably have a great deal of difficulty managing that level of distress and situation. It could potentially – I mean, [Ms Waheed] has made mention of some of the difficulties she is experiencing in the current circumstances, in terms of sleeplessness and motivation and that kind of thing. So I would imagine that there would be an increase in those symptoms. It could potentially lead to more significant anxiety, depression, that kind of thing.
HIS HONOUR:          And assume for the moment that the mother has maintained her concerns at this parenting hearing that the father still potentially poses a risk of harm to the child through what she contends is the father’s unmanaged mental health issues. And she’s also maintained her concern in relation to his past illicit drug use. Again, assume the court orders this child to now live with a (sic the) father. Initially at least, he’s only spending supervised time with the mother. Do those additional concerns of the mother – do they potentially further impact upon how the mother might negatively experience these new parenting arrangements?
WITNESS:Yes, it would. Because if her belief is that her child is unsafe living with [Mr Shahid], she could be quite preoccupied by that. So then when the contact visits occur, the focus could be vigilance and assessing him for safety and well-being, rather than remaining focused on spending that time to build relationship and maintain that.
HIS HONOUR:          Given what you’ve read about the contact difficulties that occurred during the supervised contact difficulties, would you agree that further attempts at supervised time are likely to cause more harm than good for [X]?
WITNESS:At this stage. And I just question whether they would be successful at all.
Counsel for the father questioned the Family Report writer about Dr C’s recommendations, and this evidence was given:
MR CLIFTON:          You have seen [Dr C’s] recommendations and the basis for those recommendations. [Dr C] has expressed the view that the only option appears to be [X] living with his father to try and develop a relationship between them. Would you agree that if [Dr C’s] suggestion is not followed, [X] is likely to have no relationship with his father in the foreseeable future?
WITNESS:I think it’s also possible that if he was to live with his father, that their relationship wouldn’t be successful either. That’s the difficulty.
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MR CLIFTON:          Is there a possibility that if [Dr C’s] recommendation of a simple move house for three months was not followed, but some lesser periods of time of [X] living or spending time with the father on his own was ordered, that that would be a workable solution for [X]? He would be able to cope with that?
WITNESS:Based on the information we have here, he wasn’t coping with the short amount of supervised time. From what I can see available, I don’t see a significant change for [X] to be able to adapt to that type of scenario.
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MR CLIFTON:          In the short term, would, for example, some supervised time involving [X], the father and his partner, assisted by some family therapy, be a possibility for developing a relationship between [X] and his father?
WITNESS:I would have some reservations about whether or not that’s a process that would help, based on [X’s] current experiences. He’s been in this position now of – and if I’m reading things correctly, supervised time came to an end, which seemed to be a little bit led by him. The family therapy came to an end. It’s all linked up with his behaviour, and I feel like it would be a repetition of what we’ve already seen, both at supervised time and the family therapy that’s occurred. That would be my anticipation for him, unfortunately.
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MR CLIFTON:          From what you just said, do I understand correctly that you think there is a real possibility that longer-term family therapy may facilitate [X] having some knowledge of his father, and beginning to develop a relationship with him?
WITNESS:No. I don’t think that. I think it is a possibility for this type of situation that longer term therapy is more likely to be what’s needed. But if I look specifically at [X] in this case, my expectation is that if they were to engage in family therapy again, it would be a repetition of what’s already occurred with the supervised contact and the family therapy. I don’t think it’s going to repair the relationship dynamics in this family system.
The Family Report Writer gave this further evidence as to the utility of further family therapy:
WITNESS:It could be. I just remain concerned that that is likely to happen. [X] in those sessions, yes he calmed, but he still is described as quite withdrawn and insular. The supervised contact visits where mum was not present, tearful, wanting to go home. So even with family therapy, a bit similar to the question around psychological support, one hour once a week or once a fortnight, it gives him one little moment of this experience, but if he is – if the dynamics between mum and dad and their relationship and their systems around them stay the same, then it’s going to outweigh, I guess, what the family therapy is aiming to achieve.
MR CLIFTON: But do you agree that even if there is no immediate improvement in [X’s] desire to see his father, that such therapy would at least give him an experience of his father which he could begin to assess without the mother’s views?
WITNESS:It’s one possibility. The other is that it actually further – what’s the word, makes him firmer against his belief, against his dad. It could actually have the opposite effect, which is make him – push him away harder if it’s not managed. So it’s – that is a real possibility, I think, for [X].
…
MR CLIFTON: … Would you agree that the only way [X] is likely to receive that appropriate knowledge is through some level of seeing his father, even for say, only an hour, supervised or unsupervised?
WITNESS:It would give [X] some experience of his father. It might also provide [X] with conflicting information and advice that he might receive from both parents, which would leave him in a very vulnerable position. It’s not as simple as him just spending time with his dad. Those things can’t be viewed in isolation.
The Court accepts the evidence of the Family Report writer, subject to any view of the Court to the contrary, whether express or implied, as discussed below in relation to s 60CC of the Family Law Act 1975 (Cth).
RELEVANT LEGAL PRINCIPLES
Section 60B of the Act sets out the objects of Part VII of the Act which are to ensure that the best interests of a child are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
The Court must have regard to the factors outlined in section 60CC of the Act before determining what is in the child’s best interests. The matters to consider are set out in subsection (2) of section 60CC and, if the child is an Aboriginal or Torres Strait Islander child, the Court must have regard to the matters set out in subsection (3).
The Court, or any other person cannot require the child to express his or her views in relation to any matter: section 60CE. Although, the Court can have regard to any views that are expressed by a child where such views are contained in a report given to the court: section 60CD(2)(a).
When making a parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child the Court may provide for joint or sole decision-making in relation to all or specified major long-term issues: section 61D(3).
The Court has to consider each statutory matter in s 60CC, even if express discussion is not necessary (Jollie & Dysart [2014] FamCAFC 149 at [49]; Banks & Banks (2015) FLC 93-637 at [49]; Tibb v Sheean (2018) 58 Fam LR 351 at [83]–[85]). Accordingly, the Court will discuss each factor to the extent necessary, having regard to all considerations.
The best interests of the child
Section 60CC considerations
(2)(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(2A)(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child)
The Court will consider the above considerations together.
Family violence and conflict
Each party makes allegations of family violence and other adverse conduct towards the other during the relationship. Each party significantly denies such allegations made against them respectively. Again, the parties had a relationship from 2015 to about separation in December 2018. The child has been living primarily with the mother since separation.
On the balance of probabilities, the Court does not accept the mother’s allegations of family violence, including coercive and controlling family violence, made against the father. The mother had made discrete allegations of family violence incidents against her by the father, in particular, in about mid-2015, Easter 2018, and June 2018. In relation to this finding, the Court takes into account, in particular, the following matters:
(a)the father significantly denied the mother’s allegations of family violence, including coercive and controlling family violence, giving particulars;
(b)the cross-examination by the parties relating to the mother’s allegations of physical family violence was quite limited;
(c)there were no apprehended domestic violence orders taken out against either party;
(d)the Court acknowledges that the father’s mental health was vulnerable leading into the parties’ marriage, however, the court is not persuaded that such mental health contributed to the father perpetrating any family violence against the mother.
On the balance of probabilities, the Court does not accept the father’s allegations of family violence, including coercive and controlling family violence, made against the mother. In relation to this finding, again, the parties’ cross-examination was quite limited, there were no ADVOs, and the mother significantly denied the father’s allegations.
Rather, the Court finds that during the parties’ relationship there was probably at least significant verbal disputation between the parties relating to aspects of their relationship. It is likely that both parties during such disputation verbally abused each other. This conflict was likely situational conflict between the parties and poorly managed by each of them.
The Court is of the view that potential family violence issues between the parties do not loom significantly in the determination of these parenting proceedings. In this regard, the Court accepts the evidence of the father’s partner that she has a positive relationship with the father and he has never verbally or physically abused her. In this context, the Court accepts that the father and his partner commenced a relationship in early 2020, that they moved in together to live in March 2021, and have remained living together since that time.
As to the father’s mental health, again, the Court accepts the evidence of the father’s partner that she has never been concerned with the father’s mental health. The court takes into account the evidence of Dr K, psychiatrist in his report dated 2 August 2021, inter alia, that the father has been under his care since June 2016 and his impression the father was not presenting with any current symptoms of depression or anxiety. The Court also takes into account the evidence of psychologist Mr Q in his report dated 12 April 2022, inter alia, his opinion that the father was a mentally stable person and demonstrated no symptoms of anxiety or depression. The report of the psychologist dated 6 September 2022 was unremarkable and consistent with the earlier report. The Court takes into account the follow-up report by that psychologist of 22 November 2022 in which he stated, inter alia, that the father was a stable client, able to make his own decisions and look after the child. He had stated that the father was demonstrating some symptoms of anxiety and depression due to separation from the child and previous marriage stress. The Court takes into account the psychological assessment by psychologist Dr R in his report dated 8 March 2023 stating, inter alia, that in his opinion there were no concerns found in the father’s mental health condition for not being able to have access with the child. The Court takes into account the psychologist later report dated 20 September 2023 in which it was stated, inter alia, that the father was experiencing reactive depression with anxiety components with a significant contributing the circumstances being his long-term separation from the child. On balance, the Court finds that whilst the father may continue to experience some depression and anxiety, it is not so significant as to pose a risk of harm to the child if the child were to spend time with him. The Court is satisfied that it is likely that if the father’s mental health was to significantly deteriorate he would seek health professional assistance as he has in the past.
As to the father’s past alleged illicit drug use, the Court accepts the father’s evidence relating to illicit drug testing and associated negative results. The Court is of the view that this issue does not present itself as a prospective risk of harm to the child if the child was to spend time with the father.
Child’s time with the father post separation
The parties separated in about December 2018 when the child was two years old.
The child spent supervised time with the father on 5 November 2023; this was the first time that the child had seen the father since separation. The child then spent further supervised visits with the father on 19 November 2023 and 17 December 2023. The child saw the father at three family therapy sessions, being during the months of March and April 2024. The child has not seen the father since April 2024.
It is likely that the child does not have any significant relationship with the father and has not had such a relationship with him since separation over six years ago.
Child’s views, distress and anxiety, and oppositional behaviour, in relation to spending time with the father
The Court finds that the child has experienced significant distress and anxiety in relation to spending time with the father since separation and has been oppositional to spending time with him; for example, supervised time between the child and the father occurred post separation and it was unsuccessful in terms of there being any significant development of a meaningful relationship between the child and the father, and similarly family therapy was unsuccessful in this regard.

The Court has no confidence that further supervised time between the child and the father or indeed unsupervised time between them would carry any real or significant prospect of the child developing a relationship with the father; this is by reason of the child’s significant resistance and opposition to spending time with the father, his associated distress and anxiety, the mother’s lack of commitment to the child developing such a relationship with the father, the father’s failure to adduce persuasive evidence that he has adequate parenting capacity to deal with and manage this child who exhibits such resistance and opposition (with the Court observing that the father changed his position during this trial as noted previously), and the fact that previous attempted supervised time and family therapy has failed.
Rather, any order that the child now begin to spend any form of time with the father carries the significant risk that the child will continue to resist spending time with the father and exhibit oppositional behaviour, distress and anxiety in his presence. In this regard, the Court has no confidence that the father possesses adequate parenting capacity to properly deal with such resistance and oppositional behaviour by the child.
In circumstances where the father is unable to adequately parent and manage the child when the child is exhibiting resistance and oppositional behaviour when spending time with the father, there is a significant risk that the child will experience emotional harm. Further, there is a real risk that the child’s asthma may be triggered or exacerbated by increased anxiety. And further, in these circumstances, there is a real risk that the child will develop increased resistance and opposition to spending time with the father in the future.
As to the mother’s lack of commitment to the child developing a relationship with the father, the Court finds that the mother likely genuinely believes (and has believed for a significant time since separation) that the father poses a risk of harm to the child in spending time with the child. This belief has likely developed by reason of, inter alia, the mother’s knowledge of the father’s previous vulnerable mental health and background in immigration detention (the father, in particular, had suffered significant injuries from an assault in such detention) as well as his mental health treatment, her belief that the father had previously consumed illicit drugs, her experience of the parties’ significant disputation during their relationship, the child’s lack of any relationship with the father, and the absence of any emotional connection between the mother and the father. Should the child now begin to spend time with the father, and which proves to be unproductive time spent with him, by reason of the mother’s above discussed concerns in relation to the father, there is a real risk that she will experience significant anxiety with a resultant adverse affect upon her parenting capacity for the child. The Court expresses the above views acknowledging that the child has likely been exposed to the mother’s adverse concerns in relation to the father.
Dr C’s evidence
Dr C, in her written report dated 5 November 2024, ultimately expressed a view that the only remaining option for the child to develop a relationship with the father was a change of residence, namely the child to live with the father with the mother to only have supervised contact visits with the child during the period of his relocation. In oral evidence, she stated that her above view was not endorsing, one way or the other, that such live-with order should be a short-term or long-term option.
The Court does not accept this view of Dr C. Expressed another way, the Court is of the view that were Dr C’s “only remaining option” be ordered and facilitated, there is a significant risk that the child would suffer emotional harm. In this regard, the Court refers to its discussions above as to the risks of harm to the child in having to spend time with the father, including the father’s inability to manage the child’s likely resistance and oppositional behaviour. The Court emphasises in this context the present total lack of any relationship between the child and the father. The Court, again, accepts the evidence of the Family Report writer in relation to the views of Dr C, including the Family Report writer’s evidence that previous attempted supervised time at family therapy has effectively failed, and that any further attempt to have the child spend time with the father may well cause emotional harm to the child.
Respectfully, and further, whilst the Court acknowledges the significant family therapy experience and background of Dr C, she was working with the family in a family therapy context, she had not been furnished with the affidavit evidence of the parties and other material that the family report writer had reviewed, and she had not set out clearly in her report the family history that she stated that she had taken from the parties in relation to forming her views. In this regard, the Court should state that it does not accept Dr C’s view, and does not find, that during the parties’ relationship, or indeed thereafter, that the mother “relentlessly abused” the father.
ICL’s proposal that the father may communicate with the child by forwarding letters and gifts
In the view of the court, this proposal by the ICL, if exercised by the father, would best promote the child’s safety and would potentially open the door to the child, at some time in the future, wishing to explore a possible relationship with the father.
(2A)(b) any family violence order that applies or has applied to the child or a member of the child’s family
Not applicable.
(2)(b) any views expressed by the child;
The child is 8 years old. Particularly within the context of attempted supervised time and family therapy, he has exhibited significant resistance, opposition, distress and anxiety in relation to spending time with the father; the Court refers to its discussions above under the section 60CC safety consideration. Whilst the Court acknowledges, again, that the mother’s concerns in relation to the father may well have influenced the child in this regard, the present reality is that the child has these strong views in relation to spending time with the father, and which the Court regards as not insignificant, even taking into account the child’s young age. The evidence of the Family Report writer is consistent with these views.
(2)(c) the developmental, psychological, emotional and cultural needs of the child;
The Court refers to the evidence of the Family Report writer. The Court refers to its discussions above under the section 60CC safety consideration, in particular its discussions relating to the child being protected from the risk of emotional harm.
(2)(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
The mother has such capacities, whilst the Court acknowledges that, through her genuinely held concerns in relation to the child spending time with the father, she has developed an unwillingness to promote the child developing a relationship with the father.
The father has such capacities subject to the Court’s concerns in relation to the father lacking adequate parenting capacity for the child as discussed above under the s 60CC safety consideration.
(2)(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
The child has a meaningful relationship with the mother and will benefit from a continuance of that relationship. The mother, both during the relationship and post separation to date, has been adequately caring for the child. The Court has discussed, above, the mother’s lack of commitment to the child developing relationship with the father and the reasons therefore.
Subject to the Court’s discussions above under the s 60CC safety considerations in relation to the father, prospectively the child may well benefit from developing a relationship with the father.
(2)(f) anything else that is relevant to the particular circumstances of the child.
The father sought, in the alternative, certain proposed interim parenting orders. It will not be in the best interests of the child to make any interim parenting orders, with the court observing that previous interim orders for supervised time between the child and the father failed.
There is a lack of evidence before the court to justify it imposing a section 68B Family Law Act 1975 restraining order against the father. It will not be appropriate to make such an order.
Parental responsibility
The mother and ICL seek an order that the mother have sole decision-making responsibility for long-term decisions regarding the child. On the other hand, the father seeks an order that he hold sole decision-making responsibility. The mother has been the child’s primary carer from birth to date. The child has no relationship with the father, and the father has not spent significant time with the child since separation. The parties are distrustful of each other in relation to the child. The parties have no capacity to communicate with each other in relation to the child. The parties have not communicated with each other in relation to the child for a significant time. It will be in the best interests of the child that the mother hold sole decision-making responsibility for long-term decisions regarding the child.
By reason of the above discussed matters relating to sole decision-making responsibility, it will be in the child’s best interests that the Court make orders, as proposed by the mother, that the requirement of consent of the father in relation to the application and maintenance of the current Australian passport for the child be dispensed with, and that the child be removed from the Airport Watchlist. The Court should further state in this context that, on the evidence before it, should the mother travel overseas with the child to a non-Hague Convention country, it is likely that she will return to Australia with the child in a timely fashion.
SUMMARY
Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view that it will be in the best interests of the children to make the following final parenting orders:
1.The child X born 2016 (“the child”) shall live with the mother.
2.The mother shall have sole decision-making responsibility for long-term decisions regarding the child.
3.The father may communicate with the child by forwarding to him letters and gifts on three occasions per year as follows:
(a)On the child’s birthday each year;
(b)At Eid Al Fitr;
(c)At Eid Al Adha.
4.For the purposes of Order 3:
(a)Within seven days the mother shall provide a postal address where the father can send the cards and/or gifts, and shall notify the father of any change to such postal address within seven days of the change occurring;
(b)The mother shall do all acts and things to ensure that the child receive such letters and gifts from the father, provided that the letters contain no denigration of the mother or another member of her family.
5.The requirement of consent of the father in relation to the application and maintenance of a current Australian passport for the child be dispensed with.
6.The Court requests that the Australian Federal Police remove the name of the child X born 2016, a male, from the Family Law Watchlist in force at all points of arrival in and departure from the Commonwealth of Australia.

I certify that the preceding one hundred and sixty-two (162) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.
Associate:
Dated: 20 February 2025

File number(s):	PAC 2058 of 2019
Judgment of:	JUDGE NEWBRUN
Date of judgment:	20 February 2025
Catchwords:	FAMILY LAW – PARENTING – Best interests of child – Orders made.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CD, 60CE, 61D
Cases cited:	Banks & Banks (2015) FLC 93-637 Jollie & Dysart [2014] FamCAFC 149 Tibb v Sheean (2018) 58 Fam LR 351
Division:	Division 2 Family Law
Number of paragraphs:	162
Date of hearing:	2-4 December 2024
Place:	Parramatta
Counsel for the Applicant:	Mr Anderson
Solicitor for the Applicant:	Mokhtar Law
Counsel for the Respondent:	Mr Clifton
Solicitor for the Respondent:	Ark Law Lawyers
Counsel for the Independent Children's Lawyer:	Ms Hayward
Solicitor for the Independent Children's Lawyer:	Sydney West Family Lawyers

PAC 2058 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS WAHEED Applicant
AND:	MR SHAHID Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	20 FEBRUARY 2025