Waleed and Waleed

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALEED & WALEED

[2019] FCCA 389

Catchwords:
FAMILY LAW – Parenting – whether equal time with each parent should continue– whether the parents should be restrained from continuing to send a child to a particular counsellor.

Legislation:

Family Law Act 1975, ss.60CA, 60CC

Cases cited:

Mazorski v Albright (2008) 37 FLR 518

Applicant:

MS WALEED

Respondent:

MR WALEED

File Number:

DGC 487 of 2017

Judgment of:

Judge Small

Hearing dates:

19 & 20 April 2018

Date of Last Submission:

17 May 2018

Delivered at:

Melbourne

Delivered on:

22 February 2019

REPRESENTATION

Counsel for the Applicant:

Ms Kildea

Solicitors for the Applicant:

Macpherson & Kelley Lawyers

Counsel for the Respondent:

Ms Low

Solicitors for the Respondent:

Bayside Solicitors

ORDERS

All previous parenting orders in relation to the children [X] born … 2007 and [Y] on … 2010 (“the children”) are hereby discharged.
The mother shall be solely responsible for making decisions in relation to the children’s education and medical care, and otherwise the parties shall have equal shared parental responsibility for the children.
The children shall live with the mother from 11 a.m. on 23 February 2019.
The children shall spend time and communicate with the father as follows:
(a)on each alternate weekend during school terms from the conclusion of school on Thursday (or 5:00 p.m. if not a school day) to the commencement of school on Monday (or Tuesday if Monday is not a school day) commencing on 28 February 2019;
(b)during school terms, on each alternate Thursday commencing 7 March 2019, from the conclusion of school until 8:00 p.m. with the father to collect the children from school at the commencement of the time and deliver the children to the mother’s home at the conclusion of the time;
(c)by telephone between 6:00 p.m. and 6:30 p.m. on the Sunday of the week when the children are not in his care, with the father to place the call to a number provided by the mother, and the mother to ensure that the children have access to a fully charged and working telephone, tablet or computer, that they are available to take the call, and that they have privacy during the call.
(d)for half of all school term holidays by agreement between the parties, and failing agreement from the conclusion of school on the last day of term to 6:00 p.m. on the second Saturday in odd-numbered years and from 6:00 p.m. on the second Saturday to the commencement of school on the first day of the next school term in even-numbered years;
(e)for half of the long summer holidays each year by agreement between the parties, and failing agreement from the conclusion of school on the last day of the school year to 6:00 p.m. on the day which is the midpoint of the holidays in 2019-2020 and in each alternate year thereafter, and from 6:00 p.m. on the day which is the midpoint of the holidays to 6:00 p.m. on the last Friday of the holidays in 2020-2021 and in each alternate year thereafter;
and notwithstanding the above arrangements:
(f)from 2:00 p.m. on Christmas Eve until 2:00 p.m. on Christmas Day in 2019 and in each alternate year thereafter, and from 2:00 p.m. on Christmas Day until 2:00 p.m. on Boxing Day in 2020 and in each alternate year thereafter;
(g)For the Eid Festivals:
(i)in 2019 and in each alternate year thereafter from 2:00 p.m. on the eve of Eid Al-Fitr until 2:00 p.m. on the first day of Eid Al-Fitr;
(ii)in 2020 and in each alternate year thereafter from 2:00 p.m. on the first day of Eid Al-Fitr to 2:00 p.m. on the second day of Eid Al-Fitr;
(iii)in 2019 and in each alternate year thereafter from 2:00 p.m. on the eve of Eid al-Adha until 2:00 p.m. on the first day of Eid al-Adha;
(iv)in 2020 and in each alternate year thereafter from 2:00 p.m. on the first day of Eid Al-Adha until 2:00 p.m. on the second day of Eid al-Adha;
(h)from 2:00 p.m. on New Year’s Eve 2019 until 2:00 p.m. on 1 January in 2020 and in each alternate year thereafter and from 2:00 p.m. on New Year’s Day to 2:00 p.m. on 2 January in 2021 and in each alternate year thereafter;
(i)from 2:00 p.m. on the day before Fathers’ Day until the commencement of school on the following Monday each year should the children not already be spending time with the father pursuant to these orders;
(j)from the conclusion of school on the day before the father’s birthday, or 2:00 p.m. if not a school day, until the commencement of school on the father’s birthday or 2:00 p.m. if not a school day; and
(k)at such other times as the parties might agree in writing.
The father’s time with the children shall suspend, if necessary, at the following times:
(a)from 2:00 p.m. on Christmas Eve until 2:00 p.m. on Christmas Day in 2020 and in each alternate year thereafter and from 2:00 p.m. on Christmas Day to 2:00 p.m. on Boxing Day in 2019 and in each alternate year thereafter,
(b)for the Eid Festivals:
(i)in 2019 and in each alternate year thereafter from 2:00 p.m. on the first day of Eid Al-Fitr to 2:00 p.m. on the second day of Eid Al-Fitr;
(ii)in 2020 and in each alternate year thereafter from 2:00 p.m. on the eve of Eid Al-Fitr until 2:00 p.m. on the first day of Eid Al-Fitr;
(iii)in 2019 and in each alternate year thereafter from 2:00 p.m. on the first day of Eid Al-Adha until 2:00 p.m. on the second day of Eid al-Adha;
(iv)in 2020 and in each alternate year thereafter from 2:00 p.m. on the eve of Eid Al-Adha to 2:00 p.m. on the first day of Eid Al-Adha;
(c)from 2:00 p.m. on New Year’s Day until 2:00 p.m. on 2 January in 2020 and in each alternate year thereafter and from 2:00 p.m. on New Year’s Eve until 2:00 p.m. on New Year’s Day in 2020-2021 and each alternate year thereafter;
(d)From 2:00 p.m. on the day before Mothers’ Day each year;
(e)from the conclusion of school on the day before the mother’s birthday, or 2:00 p.m. if not a school day, until the commencement of school on the mother’s birthday or 2:00 p.m. if not a school day; and
(f)and at such other times as the parties might agree in writing.
Time spent pursuant to paragraphs 4(a) and (b) hereof shall suspend during school holidays and commence again after the school holidays as though the holidays had not intervened.
The parties shall be in substantial attendance when the children are in their care until the child [X] attains the age of 14 years.
In the event that either parent is unable to care for the children during the time specified in these orders, the other parent shall have first option to care for the children.
For all changeovers that do not occur at the children’s school, the parent with whom the children have been living or spending time shall deliver the children to the other parent’s home at the end of their time.
The children shall not be left unsupervised with the paternal grandmother for more than one hour at a time until the child [X] attains the age of 14 years.
Both parties shall keep each other informed of their current contact phone numbers and residential addresses and notify the other of any change within 24 hours of such change occurring, and the parent caring for the children shall ensure that they have a working, fully charged telephone which can be used by the children to make and receive calls at any time whilst the children are in their respective care.
Each party shall notify the other in writing within at least 14 days of forming any intention to remove the children from the State of Victoria and shall provide details of where the children will be staying, when they will be returning and all contact details for the children during any such interstate travel.
Both parents shall be entitled to attend all school and extra-curricular functions normally attended by a parent including but not limited to parent/teacher interviews, concerts, sporting events and working bees.
Both parents shall be entitled to receive at their own expense any information or any copies of documents usually received from the children’s school/s or extra-curricular events including but not limited to information about the children's wellbeing.
Should the children suffer from any acute illness or serious injury the party caring for that child shall notify the other as soon as practicable and both parents are authorised to discuss the children’s diagnosis, prognosis and treatment with any treating medical professional and both parents are entitled to be in attendance at the times of such treatments. These orders shall provide an authority to the treating medical professionals for the provision of such information to either/both parents.
The parties be and are hereby restrained by injunction from travelling with, or allowing the children to travel overseas without the other party’s consent in writing first having been obtained, and upon consent being provided the travelling party shall notify the other party at least 28 days before the proposed travel of details of the travel arrangements including but not limited to information as to where the children will be staying, when they will be returning and all contact details for the children during such overseas travel.
If the parties are agreed that the children should continue to receive counselling from Dr A, the parties shall be at liberty to provide to Dr A copy of the Court’s Reasons for Judgment in this matter.
The parties be and are hereby restrained by injunction either by themselves or through their servants or agents from doing the following including via social media:
(a)criticising, insulting, belittling, or otherwise denigrating the other parent or any member of the other parent’s family or household in the presence or hearing of the children or either of them, and from allowing them to remain in the presence or hearing of any third party who is engaging in such conduct;
(b)discussing these proceedings or any parenting disputes or issues in the presence or hearing of the children or either of them, save to explain the effect of these parenting Orders to them, and from allowing them to remain in the presence or hearing of any third party who is engaging in such conduct;
(c)engaging in any form of abusive or violent behaviour towards the other parent, or members of the other parent’s family or household, in the presence or hearing of the children;
(d)posting on Facebook or other such social media any pictures/photographs of the children without the express consent of the other party having first been obtained in writing;
(e)administering any form of corporal punishment to the children or permitting any other person to do so; and
(f)allowing the children or either of them to access, read or have read to them any portion of the Court’s Reasons for Judgment in this matter.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 487 of 2017

MS WALEED

Applicant

And

MR WALEED

Respondent

REASONS FOR JUDGMENT

Introduction

This is a parenting matter between Ms Waleed or “the mother”) and Mr Waleed or “the father”).
The children of the marriage are [X] born … 2007 (“[X]”) and [Y] born … 2010 (“[Y]”) (collectively “the children”).
The children currently live with the parties on a week about basis.
The father seeks orders for the children continue to live with the parties on a week about basis.
The mother seeks orders for the children live with her and spend time with the father each alternate weekend from the conclusion of school on Thursday (or 5:00pm if it is a non-school day) until the commencement of school on Monday (or 9:00am if it is a non-school day).
The issues to be decided in this case are as follows:
A.Whether the children should live with the parents in a week about arrangement;
B.If the children are not to live in an equal shared care arrangement, where should the children live?
C.If the children are not to live an equal shared care arrangement, how much time should the children spend with their non-resident parent?
D.Whether the children’s unsupervised time with their paternal grandmother should be limited in light of health concerns raised by the mother;
E.Whether there should be an order that the parents be in substantial attendance whenever the children are in their care;
F.Whether there should be an order to the effect that where a parent is unable to care for the children the other parent should be afforded the first option to care for them;
G.Whether the parents should be able to contact the children at any time when they are in the other parent’s care;
H.Whether the parties should be restrained from allowing Dr A to continue to provide counselling treatment to the children;
I.Whether there should be orders restraining the parties from:
(a)posting inappropriate pictures/photographs of the children on social media
(b)making comments or statements in relation to their relationship issues or parenting issues to, or in the presence or hearing of the children
(c)administering any form of corporal or otherwise inappropriate punishment to the children, or permitting any third person to do so.

Background

Ms Waleed is 40 years of age, having been born in Country B on … 1977. She moved to Country C in 1995 with her family and emigrated to Australia in 2004 to be with the father after their marriage in 2001. She became an Australian Citizen in 2007. She is employed as a tradesperson in Suburb D.
Mr Waleed is 49 years of age, having been born in Country B on … 1969. He moved to Australia in or about 1998 and is also an Australian Citizen. He is a tradesman. He also receives a carer’s benefit from Centrelink as he cares for his mother who lives with him. The father suffers from depression which is treated with prescribed medication.
The parties married in 2001 in Country C and separated in October 2016. [X] and [Y] are their only children. Their divorce was granted on 4 April 2018.
The father remained in the former matrimonial home after separation and the mother received support in finding a two-bedroom unit to rent.
Since orders were made by consent on 19 April 2017, the children have lived with each parent on a week about basis, with special arrangements being made for Christmas, Mothers’ and Fathers’ Days, the two major Eids each year and other special occasions.

Procedural History

This matter commenced with Ms Waleed filing an Initiating Application, Affidavit in Support, Financial Statement and Notice of Risk on 20 February 2017.
Mr Waleed filed a Response, Affidavit in Support and Notice of Risk on 3 April 2017. He filed his Financial Statement on 6 April 2017.
This matter first came before me in the Duty List on 19 April 2017. I ordered the parties to attend upon a Family Consultant for the purposes of the preparation of a Family Report. I otherwise adjourned the matter for Final Hearing on 12 April 2018 with an estimated hearing time of three days.
On 3 October 2017, final property orders were made by consent in chambers and without the need for an appearance by the parties.
Mr Waleed filed his trial affidavit on 29 March 2018. Ms Waleed filed her trial affidavit on 5 April 2018.
Ms Waleed filed an Amended Initiating Application on 9 April 2018. She filed her Outline of Case on 11 April 2018.
Mr Waleed filed his Outline of Case on 10 April 2018 and his Amended Response to Initiating Application on 11 April 2018.
Final Hearing commenced on 12 April 2018 and ran for two days. Both the mother and father were represented by counsel.
The witnesses at trial were the mother, the father, and Ms E, the Family Consultant who prepared the Family Report in this matter (“Ms E”).
Following the conclusion of evidence on 13 April 2018, I ordered the father to file his closing submissions in writing within 21 days, and the mother to file her written closing submissions 14 days after that. I otherwise reserved my decision.
The father filed his closing submissions on 7 May 2018 and the mother filed hers on 17 May 2018.

Issues and Evidence

It is not possible to refer to every fact and/or matter raised in the trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including my notes and the transcript of the trial on 12 and 13 April 2018 and the submissions made by Counsel, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.

Issue A. Whether the children should live with the parents in a week-about arrangement

The Affidavit evidence

The mother’s evidence

The mother’s evidence is found in her Affidavits and in her oral evidence given at trial. The mother does not require a Dari interpreter for everyday transactions, but an interpreter assisted her at trial.
The mother says that prior to separation, she was the primary carer of the children, as she was not engaged in employment at the time they were born, and she was “fully responsible for the care of the children including feeding, bathing, changing nappies and all other care required of the children”.
It is her evidence that as the children grew she remained their primary carer, preparing their meals, buying their clothes, organising their swimming lessons and their attendance at Islamic school on Saturdays, and, until 2015, organising their lives entirely.
It is the mother’s evidence that in the immediate aftermath of the parties’ separation in October 2016, she saw the children very infrequently and only with the father present. She attributes the infrequency to the father’s reluctance to allow her to see the children.
Text messages between the mother and the children during the month after separation, annexed to the mother’s affidavit sworn and filed 17 February 2017, show that children were missing their mother significantly.
The mother says that while [X] gradually expressed an unwillingness to see her over the ensuing months, [Y] told her that she missed her every day and did not understand why she was not spending time with her mother.
It is her evidence that the father told the children she had left him for another man, and that she did not love them anymore.
She deposes that she invited the father to attend mediation through the Family Mediation Centre, and annexes to her Trial Affidavit sworn 6 April and filed 6 April 2018 (“the mother’s Trial Affidavit”) a s.60I Certificate dated 4 January 2017, which states that the parties did not attend family dispute resolution at that time because Mr Waleed either refused or failed to attend.
Ms Waleed deposes that the children were aware of the legal proceedings from their inception, and expresses concerns that the father had involved the children in adult matters, causing the children considerable distress, and leading [X] to further reject her.
She says that the father often left the children alone in the house with his mother, Ms F (“the paternal grandmother”), who, she says, suffers from dementia. Ms Waleed says that during the marriage she looked after her mother-in-law, whose ability to care for the children diminished over time such that by the time of separation she was “regularly (doing) things such as leaving taps running and leaving the stovetop turned on.” It was her view that the children were not safe in the sole care of their grandmother.
It is her evidence that the father receives a carer’s payment from Centrelink to look after his mother, who lives with him. She says that despite the paternal grandmother requiring care herself, Mr Waleed regularly leaves the children in her care.

Ms Waleed deposes that the father made decisions about the children’s education on the advice of his older brother who is much more observant in his practice of Islam and more culturally conservative than are Ms Waleed or her family.
Under the heading “Involvement of Mr Waleed’s brother”, Ms Waleed says the following:
79. Mr Waleed brother, Mr G, is very influential over decisions made by Mr Waleed in relation to the children.
80. Mr G is very traditional and I have heard him say to Mr Waleed on a number of occasions prior to separation that girls should be covered up. He also forbids the children from having male friends. He is very conscious of what others in the Country B community will think.
81. On one occasion during the January 2018 school holiday period, [X] was wearing shorts and asked me if she had to change to go to her father’s house. I told her that she didn’t have to change clothes. I delivered the children to Mr Waleed’s home after their week with me. As we approached the house, [X] saw Mr G’s car in the driveway and panicked that she was wearing shorts and said “oh no, he is here, I can’t be wearing this”.
(…)
83. Mr G is more traditional then (sic) the way in which Mr Waleed and I were bringing up children prior to separation, however, now that we are separated, Mr G is becoming more influential on Mr Waleed which is often at odds with how we previously raised the children, and how I wish to raise the children.
84. Now that [X] is approaching puberty, there is more pressure on her to comply with traditional values and she is more controlled by Mr Waleed and Mr G.
Later in her trial Affidavit, in response to statements made in the father’s initial affidavit, Ms Waleed deposes as follows:
109. (…) In relation to how [X] and [Y] dress, I say that Mr Waleed is very conservative because his brother Mr G is constantly telling him and putting pressure on Mr Waleed about how the girl should dress. Therefore Mr Waleed requires them to always be wearing long sleeves and pants and for them to be as covered as possible.
In her Trial Affidavit, the mother deposes that she now works three days per week as a tradesperson but that she intends to increase the hours she works.
She says that since the children have been living with her and the father on a week-about basis, her relationship with [X] has improved, although at the beginning of that time[1], [X] was often hostile towards her, telling her on one occasion that if she did not get what she wanted she would call the police and tell them her mother had hit her. The mother deposes that [X] also told her that her father had told [X] to call the police if she was not happy in her mother’s care.
[1] Orders for week about time were made by consent on 19 April 2017.
However, at the time of filing her Trial Affidavit, Ms Waleed deposes that her relationship with [X] was no longer hostile, that it was a very close relationship, and that [X] was always happy to see her.
She expresses concern, however, that the father does not pay sufficient attention to the children’s hygiene, saying that they had come into her care on at least three occasions infested with head lice, and that the father had told them that their mother could “look after it”. Ms Waleed deposes further that the father does not ensure that the children bathe regularly, and that [Y] comes into her care often not having had a shower, and on at least one occasion, for the entire week.
The mother also deposes that [X] has expressed some anxiety about asking her father for assistance when menstruating. Ms Waleed says she has told [X] that she can text her mother if she needs help.
The mother deposes that after the release of the Family Report on 28 February 2018, [X] had called her and excitedly told her that not only had her father given her permission, previously withheld, to attend her school camp in June or July 2018, but that he had agreed that she could go to School 1 Secondary College in 2019.

The father’s evidence

The father’s evidence is also found in his Affidavits and in his oral evidence at trial.
I note that the father did not swear his first Affidavit through an interpreter, although he did swear his Trial Affidavit in that manner. At trial he was assisted by a Dari interpreter.
In his initial Affidavit sworn 30 March and filed 3 April 2017, it is the father’s evidence that at separation he had come home to find a note from the mother indicating that the marriage was over and that she wished to separate from him. He deposes to being shocked and surprised to receive that note, but says that there is no chance of the parties reconciling.
It is his evidence that he and the mother shared the care of the children during the marriage until the mother commenced her course in 2012. He says that while his wife was studying, his mother “stepped in to assist” in the children’s care and that that care had become more frequent since the mother began working full-time as a tradesperson in January 2015. He denies that his mother lives with dementia, saying:
I deny the allegation that my mother forgets to turn off taps or the stove. She has not been diagnosed with suffering from dementia and I am at a loss to understand why the applicant makes these allegations.
He deposes that from January 2015 the mother was working six days a week: between 8:30 a.m. and 6:30 p.m. from Monday to Friday and from 9:00 a.m. to 5:00 p.m. on Saturdays. He alleges that the mother only declared two of those days to Centrelink, receiving the remainder of her income in cash.
He says that while he and his mother took care of the children on those days, the mother had also entered into an arrangement with a cousin to deliver the children to and collect them from school each day. Mr Waleed deposes that that arrangement continued, with him stepping into assist in school delivery and drop off after the arrangement with the mother’s cousin ceased, until the parties’ separation in October 2016.
Indeed, Mr Waleed deposes that he has been the children’s primary carer since January 2015, and that as he is self-employed, he is able to be flexible in his work hours in order to care for them.
The father deposes that the mother took several overseas trips in the latter years of the marriage, some with the children and some alone. He is very suspicious of her motives in taking overseas trips on her own, and is clearly sceptical about a trip to Country H, which the mother told him was to attend a course paid for by her employer.
He denies that he prevented the mother from seeing the children in the immediate aftermath of separation, saying that she was always welcome to make arrangements that fitted in with the children’s activities and his obligations to work, but that she often did not do so.
Mr Waleed deposes that he did “everything in my power to encourage and foster a close relationship between the applicant and the children”.
He says it was he who suggested mediation after separation and the mother who refused to attend. I note that there is a letter annexed to his initial affidavit from his solicitor to the mother’s solicitor, dated 8 February 2017, which refers to the possibility of the parties attending Victoria Legal Aid’s Family Dispute Resolution Service.
He says [X] was unwilling to see her mother for a while after separation because she felt that her mother did not care for her anymore, and because she had seen photographs on Instagram of her mother with another man.
Mr Waleed adamantly denies the mother’s allegation that he deferred to his brother in decisions regarding his family. He deposes that his mother or brother only offer an opinion on a family matter if asked.
He says that far from controlling the family’s activities, it was the mother who “controlled all the family finances and she made all of the decisions in relation to the family because she was the more dominant of the two. Up until the parties’ separation it was always the mother that purchased clothing for the children and dressed the children in the way that she saw fit. I had no objection to any of her choices. After the parties separated I left it primarily to the children to make these decisions”.
He says that the only time the children were asked to change their clothing when the paternal uncle was visiting was after they had been to the swimming pool and had arrived home in their wet bathers.
I note that that evidence is in contrast to what [X] is reported to have told Ms E and, indeed, what Mr Waleed himself is reported to have told Ms E.
In his Trial Affidavit, affirmed 28 March and filed 29 March 2018, Mr Waleed alleges that the mother sent him “very abusive text messages” in the immediate aftermath of the separation. He annexes what he says is his translation of several text messages which are certainly “very abusive”, and I note that the mother accepted their translation at trial.
Also in his Trial Affidavit, the father takes issue with Ms E’s statement in the Family Report that “(i)t appeared that Ms Waleed had adjusted to Australian culture and had better command of English than Mr Waleed, despite living in the country for less time”.
It is his evidence that the interpreter engaged to assist him during the family report interviews was a Persian interpreter rather than a Dari interpreter, and that “(t)he two languages are quite different though similar”[2]. He believes that this fact causes the Family Report to be “greatly flawed”.
[2] I note that the husband's Trial Affidavit was sworn before a Dari interpreter, while there is no affidavit of interpreter attached to his initial affidavit sworn 30 March and filed 3 April 2017.
He says that he has little opportunity to speak English as many of his customers choose his services because he speaks Dari. He says he only speaks English with the children, while the mother speaks English with her clients all day, thus affording her better opportunities to improve her English.
It is the father’s evidence that he speaks basic English (I note Ms E records him as speaking English with the children at the Family Report interviews), and he is critical of Ms E’s perceived assumption that because he does not speak perfect English he has not adjusted to Australian culture.
He says he has never pressured [X] in relation to which high school she would attend, and that he allows the children to have mobile phones so that they can contact the mother should they ever have “issues of a feminine nature of which I would not be able to address”.
Significantly, Mr Waleed states that “to ensure there is no complication in [X]’s life on this matter I have agreed that the applicant mother can have sole parental responsibility in relation to deciding the educational matters as relates to [X] as well as her medical needs”.
He reiterates his previous evidence that it was he and his mother who primarily cared for the children after the mother commenced her course, stating:
Whilst the parties attended to school functions together and sometimes alone there was very little involvement by the applicant mother of these children and consequently it is not true that she suggests she had the primary care of the children.

The expert evidence

Ms E’s Family Report is dated 27 February 2018.
Ms Waleed is reported to have denied, at interview, that she had re-partnered or that she had left the marriage after having an affair as the father alleged.
She told Ms E that all decisions in the family were made by the father, the paternal grandmother and the paternal uncle. The mother said she felt controlled by her father’s family and that she was “not consulted about anything”.
For instance, she told Ms E that the father had decided that [X] would attend School 2 Secondary College for her secondary education because the paternal cousins attended there, despite [X] wishing to attend School 1 Secondary College, where many of her friends would be attending.
Ms Waleed said that the father was dismissive of [X]’s wishes and that she thought that “[X]’s social connections should be part of the consideration when deciding about her education”.
Ms E records:
23. Ms Waleed also had concerns about the children accessing support around puberty developments and their needs as developing young women. She said she believed they would feel more comfortable discussing and dealing with those developments with her rather than their paternal grandmother or their father.
Ms E’s observation of Ms Waleed with the children was of a warm and affectionate relationship, and she states that both children appeared happy when in her presence. Ms Waleed “was observed to be appropriate in relation to what was discussed and in her warmth and affection with the children”.
Under the heading “Evaluation”, Ms E states the following in relation to the mother:
46. Ms Waleed impressed as focussed on the children’s best interests in so far as she seemed able to take into consideration their thoughts and concerns in decisions about education, extracurricular activities and camps. She appeared able to adjust her parenting to the changing developmental needs of the children. She seemed particularly aware of the need to be more flexible in parenting style when children are entering and during adolescence.
However, while noting that neither child displayed any fear of their mother, Ms E describes both children as telling her that their mother yelled at them, and she thought it would “benefit the children if Ms Waleed was to use other parenting strategies apart from yelling to enforce limits”.
Ms E describes Mr Waleed as appearing to be “friendly and respectful, but there were some evasive movements”. For instance, Ms E was not impressed with his explanation as to why he had changed the locks on the family home after Ms Waleed left, that explanation being that he was afraid that the mother would be violent, despite the fact that she had not been violent prior to that time.
The father told Ms E that he had decided that [X] should attend School 2 High School “because his brother’s children had attended there and had performed well, and he believed it to be a good school. He was dismissive about [X]’s expressed wish to attend the school where her friends were to attend, and which, according to Ms Waleed, is equally good academically”.
When Ms E asked him who made decisions in his family, Ms Waleed replied that his brother decides, and it is men who make the decisions. She comments that “(h)e did not seem to comprehend that may have been an issue for Ms Waleed”.
During her observations of Mr Waleed with the children, Ms E says that “[Y] seem to engage the most with her father and [X] was relatively disengaged”.
Ms E states that “Mr Waleed impressed as somewhat focussed on the children’s best interests in so far as he has concerns for their safety”.
However she said that the children experienced those concerns as “overcautious and restrictive to the degree that they are identified as unnecessarily different from their peers”.
Ms E states that it was clear that while the then almost 11-year-old [X] was capable of speaking her mind and about her thoughts and feelings, “she was worried about her father becoming angry about some of her expressed concerns”.
[X] expressed concern about Mr Waleed controlling the clothing that she wears, saying that when the paternal uncle is visiting, the children have to ensure that their clothing is modest, which sometimes requires a change of clothing. Ms E says that it appears that beliefs about what clothing the children should wear are different in the mother’s home than in the father’s, and [X] was not able to explain why that was so.
[X] also expressed concern about not being allowed to attend school camps, again saying she was not sure of the reasons her father would not allow her attendance, but that she thought it was because he had fears about her not being safe in the care of her teachers. She told Ms E that she was afraid her father would be “mad” if he knew that she was speaking to Ms E about these issues. [X] said that she thought the restraints on her clothing and behaviour “had something to do with being Muslim”. Ms E says it was also clear that [X] felt she was consulted about her education and clothing more by her mother and that she expressed a clear wish to attend School 1 Secondary College.
Ms E describes [X] as being very aware of the conflict between her parents, stating:
48. (….) While that might not be such an issue if both parents agreed about the restraints and the whole family was invested in the cultural norms of Mr Waleed’s family, the children are aware of and will become increasingly so as adolescents of the differences between them and their peers. Peers become an important reference group for adolescents, and unless there are serious risk concerns among their peers it is appropriate for teenagers to wish to do similar activities and wear similar clothing.
49. The cultural norms of Mr Waleed’s family also place the children in a difficult position between their parents. [X] is showing signs of distress about her opinion being disregarded in relation to decisions about her life. It is likely as time progresses that she will become more negatively affected by the lack of consultation with her, within her father’s family because it is culturally expected by Australian adolescents and she is living within that culture. She may either struggle with having an efficacious sense of herself or she may become openly rebellious. It was clear that [X] felt under pressure from her awareness of her father’s issues and was constrained by that from freely saying what her wishes were in relation to the living arrangements. However, her demeanour with her mother suggested that she prefers to live with her mother.
[Y] is described in the Family Report as being concerned about the living arrangements being “fair” to each of her parents, although Ms Waleed wrote that she “seemed content to please and focused on pleasing her father”.
Ms E comments that “it was clear that (her wish for fairness) was associated with a desire to placate her father and that she was unable to consider her own feelings as separate from his”.
[Y] told Ms E she was happy living in an equal shared care arrangement and that both she and [X] would be “upset” if they were to live with one parent and spend time with the other.
Both children said they had attended a counsellor for support in relation to their family situation.
Neither child expressed any concerns about their paternal grandmother, and had only positive things to say about her.
I note in that regard that I made an order by consent on 19 April 2017 for the father to file a short medical report from the paternal grandmother’s general practitioner in relation to “the paternal grandmother’s geriatric physical and mental health insofar as those issues might affect her capacity to care for the parties’ 10 and 7-year-old daughters on her own, and the interpreter who interprets for the paternal grandmother for the purposes of obtaining this report shall be a professional interpreter employed by the father and not the father or a member of his family”.
No such report was ever filed.
It was Ms E’s recommendation that the parties should have equal shared parental responsibility for the children, save for responsibility about education and major health issues, which she said should rest with their mother.
Ms E recommended that the children should live with their mother, and spend alternate weekends with their father from after school on Thursday to the commencement of school on Monday, with arrangements for special occasions being similar to the current regime.
She made the point that her recommendation that the parties should not discuss family law matters with the children included “questioning or chastising them about their comments to the Family Report writer”.
I note that on the evening before trial, the father filed a report annexed to an Affidavit sworn by Dr A, who had been providing counselling to the children in response to their distress at their parents’ separation. That Affidavit and report were struck out on the first day of trial on the basis that Dr A was not qualified as an expert, that the counselling was initiated for therapeutic purposes, that she had met with the father on multiple occasions but with the mother only twice, and that her report purported to criticise and respond to Ms E’s analyses and recommendations, which was beyond her remit to a significant extent.

The oral evidence

The mother’s evidence

At trial, the mother gave her evidence assisted by an interpreter, although she gave most of her responses in English, and was cross-examined by counsel for the father, who was his solicitor acting as counsel.
Ms Waleed did not agree with counsel that her husband had been the children’s primary carer between 2012 and 2015 when she had been studying for her trade qualifications. It was her evidence that she studied only three or four days per week, and that her hours were 9:00 a.m. to 3:00 p.m. She said that the children were either in school or childcare between those hours and that she had looked after them outside those hours.
She agreed that there had been an arrangement with her cousin, who operates a family day care centre, to take the children to and from school/day care during some of that period.
Ms Waleed conceded that she had sent an extremely abusive text message to the husband in the immediate aftermath of him telling her she was no longer welcome at the family home, saying that she had been highly stressed when she had done so. I note that it is her evidence that when she left to stay with her friend at that time she did not intend the marriage to end, and that the father had then told her she could not come home.
While the text message was highly inappropriate and violent in its content, I did not gain the impression that it was more than a venting of her frustration and disgust at the father having changed the locks to the family home after telling her she could not return. He had apparently also told the friend she was staying with, who was a cousin of the father’s, not to give her shelter, and she had had to find other accommodation.
That does not excuse the nature or language of the text message in any sense, but it does explain it to some degree.
Ms Waleed denied that in the months after separation she had seen the children whenever she had requested to, and stated that when she did see them her time with them was limited to five, ten or a maximum of 20 minutes or so by the father.
She said that at that time [X]’s behaviour towards her had been very aggressive and abusive, and that the father had not encouraged the children to speak to her or spend time with her.
A considerable amount of time was spent during Ms Waleed’s cross-examination on the issue of whether it was she or her husband who had sought for the parties to attend mediation prior to the issuing of proceedings and who had refused to attend.
The evidence presented appears to show that both parties were seeking the other’s cooperation to attend family dispute resolution, but that there was no agreement on the venue or terms for that mediation, or on any time that might be spent between the children and their mother pending mediation, and that each had ultimately refused the other’s offer.
I do not think that anything hangs on that issue.
Despite the proposition being put twice at different times, Ms Waleed did not agree with Counsel’s proposition that the current week-about regime was working well.
Ms Waleed was asked several questions about her proposal to work more than her current three days per week if she were to care for the children for ten nights in each 14. It was her evidence that she would increase her hours from 9:00 a.m. to 3:00 p.m. to 9:00 a.m.to 4:00 p.m. and that the children would be in after school care for that hour. She also stated that if it were necessary financially, she would increase the number of days she worked from three to four.
Significantly, the mother conceded that she had yelled at the children during the marriage when she was “really stressed”, but it was her evidence that she did not do so after the marriage broke down.
I note that that evidence contradicts what [Y] told Ms E.
When first questioned, Ms Waleed denied that she had hit [X], saying that when she reprimanded [X] for misbehaving while they were driving, [X] had said that she would text her father telling him that her mother had hit her. The mother said she had said: “okay you can text her (sic)”. However, she then admitted that she had hit [X] on the arm in order to get her to sit still while they were driving and to stop teasing [Y].
It was put to Ms Waleed that the fact that she had been able to take a number of overseas trips during the marriage indicated that the husband was not the controlling and dominating force that she alleged.
She conceded that she had visited her sister in the Country J in 2014, saying that her sister had had a baby and she had gone to assist her.
She also agreed that she had been to Country K alone when the children were quite young, and that she had visited her sister again in 2016, although she said that she had taken that trip to care for her sister, who had had an accident.
It was her evidence that while she had ultimately been able to travel when she needed to, both the husband and his mother had created “a problem” about that.
When counsel’s cross-examination had finished, I asked her what it was about the equal shared care arrangement that was not working, and the following exchange took place:
Ms Waleed: Yes, that’s the important things. Yes. Because when the kids is coming to me on like a Friday for two days her – their behaviour is really different. Her behaviour, her talking and everything. And by the time when I will speak with them and slowly, slowly they were heaps better. And by the time when they were going back there, the same thing. They’re coming and say something and some things I might just like I’m her babe (sic in transcript), yes, especially with [X].
Her Honour: What kinds of things does she say?
Ms Waleed: Like [X]’s behaviour, she was really like kind of really rude to me and she’s like yes it’s like when she’s talking to me it’s really rude and she doesn’t care about anything and she was just like – yes it’s like that stuff. Yes.
When asked about [Y]’s behaviour, Ms Waleed said that her behaviour had not been like [X]’s.
I then asked her what her concerns were about the paternal grandmother.
Ms Waleed said that the grandmother was old and that she needed someone to take care of her. When I asked her why she needed someone to take care of her the mother replied:
Because she like especially for the language, she can’t understand, and even when she is like I was like for like 12 years, we were living together. And I know her better than anyone. And like she forgot some things are like many things when I was there she’s – when she turn off the – turn on the tap she forgot to turn off. And even sometimes when she is going out she can – she’s not going to lock the door. And even when she do something on the stove she can – she – sometimes she forgot to turn off. Yes.
I found the mother, overall, to be an honest and credible witness. She was prepared to make statements against her interest, for instance in her accepting that she had sent a particularly vile text message to the father in the immediate aftermath of separation, and she showed a genuine insight into both her own behaviour and the needs of the children.

The father’s evidence

At trial, Mr Waleed was assisted by a Dari interpreter for the morning session of his evidence, although the interpreter had to be reminded more than once to actually translate what was being said in court. Because of that, certain parts of the proceedings had to be repeated so that the father’s interpreter could translate for him what was being said in the courtroom.
In circumstances where Mr Waleed had complained about the interpreter provided for his Family Report interview not speaking in Dari, it might have been useful had his counsel ensured that he was being properly assisted.
Mr Waleed had a Dari telephone interpreter for the afternoon session.
Nevertheless, I note that he sometimes gave his answers to questions in English, and on at least one occasion he corrected the translation of the interpreter.
All quotations from Mr Waleed’s evidence in these Reasons were relayed through the interpreter/s.
It was Mr Waleed’s evidence that historically, there were three “stages” in the parties’ relationships with the children: the first from the children’s births until 2012, when the mother was not working, during which time he says both parties cared for the children and the mother cared for the paternal grandmother; the second from 2012 to 2015, when Ms Waleed was studying, when the father says that he and his mother gradually took over the care of the children; and the third from January 2015, when the wife began working full time, to the date of separation in late 2016, when, he says, he was the children’s primary carer, as well as being his mother’s carer.
He said in evidence that between the births of the children and 2012, the wife was not working, but that she was looking after his mother.
When asked why his mother needed care, he said:
Because my mother physically is very weak, and she can’t speak English. She can’t go to places, and we were helping her with those things like medical appointments or shops or taking her out.
It was his evidence that his mother’s health had neither improved nor deteriorated since 2012. He said that she did not have many health issues apart from “some blood pressure problems”.
Under cross-examination, Mr Waleed confirmed that he receives a carer’s pension for caring for his mother because of his mother’s language difficulties and the fact that she cannot drive, so he needs to take her to appointments and for shopping.
He was then taken to his Affidavit sworn on 30 March and filed on 3 April 2017, where he states:
The duties of caring for the children were shared between the parties, and there was no need for the applicant wife to care for the paternal grandmother.
He was questioned about the contradiction between that evidence and the evidence just given in relation to the paternal grandmother, Mr Waleed said when the mother began working, he had taken over the care of his mother, but he could not explain the discrepancy in his evidence, saying:
I don’t know. I don’t know what to say.
When the question was put again, Mr Waleed said he did not understand the question, and I attempted to put it into simple language for him. He then responded referring to the three “stages” set out above, and agreed that at first, until the mother began to study in 2012, the care of the children and his mother had been shared between the parties. From that time, he agreed, he began to increasingly take over the care of children and his mother until, by the time the mother was working as a qualified tradesperson, he was the sole carer of the children and his mother.
Mr Waleed was then referred to his Trial Affidavit, which states that between 2012 and 2014, he “assisted single-handedly and without the assistance of the applicant to provide for the needs of the children, including emotional and intellectual”[3].
[3] The Affidavit of Mr Waleed sworn 28 and filed 29 March 2018 paragraph 27
He then qualified that statement saying “I wouldn’t say single-handedly” and that “at times Ms Waleed, when she had time, would look after them as well”. When pressed on that topic, Mr Waleed said: “I’m not saying that she didn’t help at all. When at times she was at home she was helping”.
However, when pressed further about the wording of his Trial Affidavit, which had been sworn through an interpreter, he suggested: “Maybe I never mentioned the word “all by myself”. Maybe that was put there. I don’t know.”
When asked specifically if he had had his Trial Affidavit translated to him before he swore it, Mr Waleed replied:
It was. It was translated, yes. But just that word that you’re sort of pointing at as an – the word is translated as alone or single-handed, that – I’m not sure if I mentioned it or if it was written there and that was clearly interpreted or translated for me. I wouldn’t – I wouldn’t remember that.
When it was directly put to him that in fact the mother had been the primary care of the children before separation, Mr Waleed said that everything had changed once the mother started working in January 2015. He said that that evidence would be supported by Ms L, who was the family day care provider who delivered the children to and picked them up from school. I note that Ms L did not swear an Affidavit and was not called as a witness in these proceedings.
When pressed on that matter, Ms Waleed said: “You haven’t lived in my shoes. You haven’t been in my life, so I’m just telling you what I have been through.”
The court then rose for the day and resumed the following morning.
When the court resumed on the second day, the father’s counsel attempted to introduce the report of the father’s general practitioner in relation to his mother’s capacity into evidence through her client as “a point of natural justice” given that the author of the report was not prepared to swear an affidavit.
After hearing from Counsel for the mother, during which Counsel made the point that the report had not been put to either the mother or Ms E during their evidence which was now complete, and that the father’s lawyers had had some 11 months to comply with the order that the report be prepared, I said that I would allow the document to be tendered, and, it being hearsay, it would be “duly considered”.
Counsel for the father then began to adduce evidence from him about the visit to the doctor’s surgery which resulted in the report.
It became clear almost immediately that Mr Waleed had not been in attendance on that day, and that it had been his brother who had taken his mother to the doctor for the purpose of the report. Mr Waleed said that as far as he was aware, a professional interpreter had been in attendance, but that the interpreter had been organised by the doctor, and he was not aware of how interpreter had been paid.
In those circumstances I did not allow the document to be tendered in the absence of sworn evidence from either the doctor or Mr Waleed’s brother.
Counsel then turned to the issue of the father’s alleged controlling behaviour against the wife during the marriage.
Mr Waleed denied that he had always been in control of decision-making in the family, and he did not accept Ms E’s report where she referred to him committing emotional and psychological violence against the mother.
When it was put to him that it was “a falsehood to suggest that my client has been violent towards you”, the following exchange took place:
Mr Waleed: I – I cannot remember if I have showed any violence towards her.
Counsel: But she has never shown any violence towards you, has she, Sir?
Mr Waleed: She sent me a text message that – that potentially could have been a violent encounter.
Counsel: Outside of those text messages, there is nothing, is there?
Mr Waleed: So she could – could have become violence.
Counsel: No. My question – sorry, and I will – let me be clear. Save for those text messages, my client has never perpetrated any form of family violence towards you, has she?
Mr Waleed: Yes. That’s correct.
The father was then questioned about the time the children spent with the mother in the immediate aftermath of separation. He accepted that the time had been irregular and brief, but it was his evidence that that was because [X], who was only 10 years old at the time, had decided how much time she wanted to spend with her mother. He said that that was the only reason that the children had not spent regular and frequent time with the mother at that time.
The following exchange then took place:
Counsel: And so she was making the decisions at the age of ten, was she? It’s a yes/no question, sir.
Mr Waleed: I’m trying to answer your question now. So the daughter tells you that I don’t want to see a mother you cannot just push a child to – to go and falsely see her mother.
Counsel: I will ask my question again. So at the age of ten [X] was making the decisions was she?
Mr Waleed: Yes. Why not?
Counsel: Why not?
Mr Waleed: It was just a decision that she didn’t want to see her mother. Nothing else I could do about that. What could I have done at the time. (sic in transcript)
(…)
Her Honour: I was just going to ask you, Mr Waleed, what would you do if [X] said she didn’t want to go to school?
Mr Waleed: I will definitely take her to school because it’s very important.
Her Honour: That’s right, but you couldn’t do something to make sure she kept in touch with her mother. (sic in transcript)
Mr Waleed: I was – I was talking to her, I was encouraging her to do so. Even they suggested to take her to Dr A because she didn’t – she was refusing to see her mother and after speaking to Dr A then she was prepared to see her mother.
When asked if he thought it was important for the children to spend time with their mother, the father answered: “Of course it is. Yes.”
Later in his cross-examination Mr Waleed was brought again to the issue of [X] refusing to see her mother in the immediate aftermath of the parties’ separation. He said that she had been upset because she had seen a picture of her mother with another man on Instagram, and that she had told him that her mother loved someone else and did not love the children any more.
When asked what he had said to [X] when she expressed those feelings, he said: “I didn’t say anything to her”. The following exchange then took place:
Counsel: So there is a 10 year old who is extremely – in your version of events, very upset, thinks that her mother doesn’t love her and you say nothing. Is that right?
Mr Waleed: That was the truth and she saw it herself. I could not convince the other way.
Counsel: So, okay. All right. Did you think to tell her that maybe she had misunderstood?
Mr Waleed: I think it – because she’s a smart girl, she saw the picture herself and I – I couldn’t convince her otherwise.
Counsel: So you didn’t – so did you think to maybe tell her, “your mum loves you”?
Mr Waleed: Well, the fact that the mother doesn’t love them – how could I tell her otherwise? If their mother loved them she wouldn’t have left them.
Mr Waleed was asked questions about his allegations that the mother had been a drug user.
When asked if he had ever seen Ms Waleed taking drugs he said he had not, but that she had sometimes had “red eyes”. He also agreed that he had never seen any drug paraphernalia at his home.
It was the father’s evidence that the mother had refused to take a drug test, and that he did not know why she had refused to do so. When a clean drug screen document was shown to him, he said he was not an expert in drug testing, before saying that there had been times when the mother had left the house every night for ten minutes and that he did not know where she had gone.
He admitted that he was not “100% sure” about this issue and when asked whether those allegations had appeared in his affidavit material, he said: “I can’t remember. I might not have mentioned it.”
When it was put to him that “there was no real basis for you to suspect my client was using drugs”, Mr Waleed said: “That’s correct. It – it was only my assumption. I was not 100% sure.”
He denied that the allegation was made “purely to intimidate” the mother, saying that he was “just trying to make sure if she is using drug or not”.
He did not seem to appreciate the contradiction between those allegations and his consent to the children living half the time with their mother at the first hearing date of these proceedings.
Counsel then turned to the issue of whether the children might be more comfortable speaking to their mother about “difficulties as they approach adolescence”.
The following exchange took place:
Counsel: do you accept that, for example, when the children are – when the girls are going through puberty, they’re more likely to be comfortable talking to their mother than they are to you?
Mr Waleed: So I believe that they are – and one of the girls about the – the kids, as much as they need their mother they also need psychological support from their father and they need their father in their life as well.
Counsel: would you like me to repeat my question, sir?
Mr Waleed: Yes.
Counsel: do you accept that the girls will be more comfortable talking to their mother than they are to – to talking to you about issues, for example, such as puberty?
Mr Waleed: So I believe they – they have ample opportunities to find out about those issues through the Internet, through the school education, through the other female members of the family as well.
Counsel: So they should trawl the Internet for information? Is that it?
Mr Waleed: They also receiving education at school about this and they have access to the phone. They can call the mother any time they want.
Counsel: So, Sir, I put it to you that these children are going to be more comfortable discussing issues, for example, regarding puberty with their mother than they will be with you. Do you accept that statement?
Mr Waleed: In regards to puberty and stuff, yes. You’re right.

Counsel then turned to the issue of what the children were permitted to wear when living at his home. He was asked whether there were certain clothes that he did not allow the children to wear outside of the house, and the following exchange took place:
Mr Waleed: I’m just trying to teach them to – to – to dress appropriately against so – according to the environment that they’re in, if they’re outside of the house or inside of the house or at a party.
Counsel: In summer are shorts appropriate?
Mr Waleed: So in regards – in regards to their clothing or the way they’re dressed, I have no problems. They always have been dressed by the mother and they’re buying their shopping themself. Yes. Before the separation the mother was shopping for them, but now they’re doing their own shopping for clothing.
Counsel: Is it appropriate for the children to wear shorts outside of the house?
Mr Waleed: Yes. With their clothing, they’re allowed. They can wear it.
Counsel: You would have seen the family report that the children feel that when your brother comes to the home they’re required to change. Have you – do you accept that?
Mr Waleed: It was not about my brother. On – on that occasion we just came back from swimming pool and I just wanted them to – to change into other clothing, and the fact that I’m taking – the fact that I’m taking them to swimming pool and allowing to – to wear the swimming suit and then bringing them back home with the same swimming suit just shows that I’m not a strict person. It has nothing to do with my religion, Islam, or anything else.
Mr Waleed was referred to paragraph 36 of Ms E’s Family Report and that paragraph was read by the interpreter and translated for Mr Waleed.
When asked, he did not accept that that paragraph “clearly indicates that [X] indicated to the family report writer that she is distressed about your control of her clothing”. He was adamant that the only time he had asked the children to change their clothes because their uncle was visiting was when he had brought them back from the swimming pool and they were wearing only swimming suits.
Mr Waleed was asked whether [X]’s focus during her family report interview on this issue was the result of one incident he said:
The thing is that was only in regards to that occasion when the – having the swimming suit on, but the thing is I’m – I’m a good father. I love my kids and they love me and I have no issues – controlled about them, what they’re going to wear.
He said that it would not be appropriate for the children to wear swimming suits to the shopping centre and that it was “just about teaching them what to wear”.
In relation to the children not being permitted to attend their school camps, it was Mr Waleed’s evidence that that decision had been made by both parties during the marriage so that they would not “get hurt, they – they don’t face any dangers”. He could not describe the potential dangers the children might face while attending school camps, but insisted that it was a joint decision of the parties. He said that he believed that many parents in Australia did not allow their children to attend school camps for all sorts of reasons, only one of which was religion.
Counsel then accused Mr Waleed of being evasive in his answers to her questions and referred him to paragraph 25 of Ms E’s report where she described Mr Waleed as “friendly and respectful, but there were some evasive moments”. Mr Waleed’s response was as follows:
Mr Waleed: Well, that’s their view.
Counsel: Do you accept that, that you can at times be evasive?
Mr Waleed: Not evasive, but more probably disappointed that the family psychologist give a view of myself to being a violent person, which I’m not.
Counsel: I put it to you, sir, that you’re being evasive in the way you respond to my questions.
Mr Waleed: The reason is because I’m upset because I hear everything is against me. I’ve been looking after my kids since 2015, and I’m now being shortcoming to their care. Even their mother a number of times physically discipline the kids, but I’ve never touched them at all. (…) And I don’t know why they’re against me. (…) I’ve never physically discipline them.
Again, he did not appear to see any contradiction between his stated belief that the children were physically disciplined by their mother and his agreement to the children spending half their time with her in April 2017 and now, not to mention his concession that the mother would have sole parental responsibility for them in relation to their health and education.
It was the father’s evidence that perhaps the mother was only refraining from physically disciplining the children during the proceedings, and that one of the reasons he wished to have week-about equal shared care was so that he could monitor the children and protect them.
He said that he had asked the children their views about their care, and that they had told him “a number of times” that they were happy with the current arrangement, and they wished to live equally with each parent. He did not seem to understand that speaking to the children about these matters was in breach of a court order prohibiting him from doing so. When that was pointed out to him, he said: “To be honest, I didn’t pay much attention to that exact word, but that’s what I did, yes”.
He admitted further that he had told the children that he was attending court for the final hearing of the matter, although he said he could not remember whether he had told them about previous proceedings in February 2017 but that it was “possible”.
He was then referred to the mother’s Affidavit sworn 17 February and filed 20 February 2017 where the mother deposes, at paragraph 45, that on 15 February 2017, the then nine-year-old [X] had told her when she telephoned: “Don’t call me. I will see you in court, and tell them I don’t want to live with you. Why are you calling? I don’t want to talk to you. I don’t like you. See you in court”.
Mr Waleed was asked where [X] might have gained the knowledge of the parties attending court, and he initially said that perhaps their mother had told them, before being reminded that [X] had said those words while in his care, after which he said: “I might have told them as well. I don’t remember those remarks”.
In relation to the decision that [X] would attend School 2, Mr Waleed said that the decision had been made when [X] had started primary school, and that both parents had agreed that the children would attend School 2 High School. However, he then said:
But at the moment, because things has changed and Ms Waleed doesn’t want her to go to school, or she doesn’t want to go to that school, I have nothing against it, and because we still have time, we haven’t made the final decision for them.
He conceded that he had told [X] that she would be attending School 2 High School, and that he had told Ms E that he wanted [X] to go to that school, although he further conceded that he might not have mentioned to Ms E that the decision had been a joint decision of the parties.
He flatly denied telling Ms E that “men make the decisions” in his family, and while he had said previously that he was content for the mother to have sole parental responsibility in matters of education, he said there was still time for the parties to make the decision about where [X] went to high school. He did not seem to understand the contradiction in those statements.
Mr Waleed specifically denied that the decision that [X] would go to School 2 High School had been made in consultation with his brother, although he accepted that School 2 High School had been chosen because the children’s paternal cousins had gone there.
In relation to the incident where the mother hit [X] while they were driving, Mr Waleed initially denied having told the mother that he would tell the police about that incident, before being referred to his own Trial Affidavit. The following exchange then took place:
Counsel: Now there – this is your trial Affidavit. Do you accept that?
Mr Waleed: Yes.
Counsel: And you gave evidence yesterday that this was translated to you?
Mr Waleed: Yes.
Counsel: All right. In the bottom left-hand side, can you please read to the court – sorry, this – and these are, you say, text messages between yourself and my client. Is that correct?
Mr Waleed: They’re not my text messages.
Counsel: What about the bottom left-hand side?
Mr Waleed: Sorry, that’s – that’s your paperwork, not my paperwork.
Counsel: Sir, this is your affidavit.
Mr Waleed: I don’t know – I don’t know what you mean by that. What is the question?
Counsel: This is your affidavit, correct?
Mr Waleed: Yes. Yes, I agree.
The text message, to the effect that [X] had told him that her mother had hit her, and that if the mother ignored him he would tell the police, was then read to him and he accepted that it had been his text message.
When the contradiction in his evidence was put to him, Mr Waleed denied that he had lied when he had said that he had not told the mother that he would report the incident to the police. He said that he was aware of his oath, and that he was not lying. Again, he seemed unable to understand the contradictions in his evidence.
In relation to the restraints that he was seeking on the mother’s behaviour, in response to counsel’s questions the father conceded that he had “no problem” with the mother posting photographs of the children on Facebook.
However, when I clarified for him the restraints he had sought in his Amended Response, he stated that he did want an order restraining the mother from placing “inappropriate pictures/photographs of (the) children on social media”.
When asked, in re-examination, about Ms E’s Family Report, he stated:
Unfortunately, the lady didn’t review or exam the matter impartially, it was really one-sided, like he (sic) hasn’t seen me as a father. Like he (sic) has seen me more of like a fanatic Muslim person, not a father.
(…)
No, I don’t agree with most of the thing that she reportedly said about me. I do not agree with that. (…) For instance, she said in her report that I brought my daughter to a very tiny or small park, but she didn’t mention that I took her for one week holiday to Queensland. She did not mention that; she just mentioned that I took it to a very small or tiny park. Another example, like she said in her report that I’m living or staying in government Housing, but she didn’t mention her she didn’t say about type of accommodation … (sic in transcript) is living. She didn’t mention about … (sic in transcript), just mention about me that I’m living in government housing.
And later:
Her Honour: The question is how did Ms E get wrong the question of domestic violence or family violence. So the question is what did she say about family violence that you disagree with.
Mr Waleed: (…) I don’t have anything to say about the domestic violence. She claimed that I’m a fanatic Muslim, but I’m not, and you can see that from my appearance. I’m not wearing any Islamic traditional clothes. And I have been following all Australian culture and rules, and I have been buying my clothes from…[4]
[4] At this point Mr Waleed was interrupted by his counsel and did not have the opportunity to finish this sentence.
After the completion of counsel’s re-examination, I asked Mr Waleed to tell me what difference there would be between the children living with him on a week about basis and living with their mother for 10 nights per fortnight and with him for the remaining four nights.
Mr Waleed replied that he was concerned that, if he was unable to monitor his children on a frequent basis when they were with their mother, that she might engage in corporal punishment. He said that he feared that she had suspended using corporal punishment on the children during the court proceedings, but that once the court proceedings were complete, she might revert to hitting them.
He was also concerned about who would care for the children in after-school care while the mother was at work if she were to increase the working hours in accordance with her evidence. He was concerned about the children being in after-school care if she were to increase the working hours by one hour a day, saying that the amount of money that she earned in that hour would be spent on the child care.
I explained to Mr Waleed that I was able to make an order that he spend time with the children each week, and that “whatever (the orders) I will make sure that you have – you and Ms Waleed both have as close and loving relationship, and that you see your children regularly and frequently”. Mr Waleed replied that he would respect “whatever order you put in place”.
Overall I found the father’s evidence, while certainly sincere, to be somewhat confusing and lacking in insight as to the deeper emotional needs of his children.
He clearly loves them very much, and wants only what is best for them, but his oral evidence in particular was inconsistent, and revealed a man unwilling or unable to take full responsibility for his own actions and decisions.

The expert evidence

Ms E gave her evidence by telephone at trial, and was cross-examined by both parties’ counsels. I note that her evidence was interposed during the mother’s evidence, and that the father’s oral evidence had not been given at that time.
She confirmed that it had been her understanding that the father had decided where [X] would go to high school, and that he had not consulted the mother about that decision.
She said that Mr Waleed had made that statement in “a matter of fact” way, and that she had not gained the impression that the father had considered [X]’s opinion in the making of that decision.
It was Ms E’s evidence that in her opinion, the mother had considered the social aspects of [X]’s education, while the father had not. She said that the social aspects of a child’s education are particularly relevant for teenagers.
She described the father’s parenting style as “authoritarian”, and the mothers as “authoritative”, and clarified those terms thus:
(An authoritarian parenting style) tends to reduce children’s sense of having any power. And so when they’re adolescents, in particular, while an authoritative parent might ultimately make a decision that the children don’t necessarily agree with there would have been a consultation and reasons given as to why the decision would be made. Usually those reasons might be more around safety issues than – from what I understood from the father his decision was made purely on the basis that his brother thought that it was the best school, and the children’s cousins had attended there. So there was no discrimination merely between that and information about any other school. Whereas the mother seemed to have taken those things more into account and had more of a discriminatory decision in consultation with [X].
It was Ms E’s opinion that the views of adolescent children should be taken into account when such decisions are made.
In relation to the paternal uncle’s influence on the father, Ms E confirmed that she had gained the impression that the uncle had certainly been involved in decision-making in the family. She said:
I think it might be cultural. I’m not sure. Obviously, I’m not an expert in Country C culture[5], but it appeared that there might be a more conservative culture to which the father belonged compared with the mother. So they’re both Country C nationality, but she seems to have more of a liberal – more, a liberal approach. And I think that’s why I said that she appeared to become more encultured in the Australian culture than he did. It might be because he was also still strongly within his cultural family. It is within his family of origin. So I think the grandmother and the brother – sorry – the paternal uncle had spent a lot of time in the family with the children. And things that the children said to me actually did support that the uncle was there quite a lot. And they did talk about the way they behave when he was in the house.
[5] This is a misunderstanding on the part of Ms E. Both parties are originally from Country B.
She confirmed that the children had spoken at interview about having to change their clothes when their uncle was visiting.
The following exchange then took place:
Counsel for the mother: So did you get – during the course of your interviews do you think that the children identified with one parent more closely in relation to their cultural experience?
Ms E: Yes. I did believe that they related more closely to their mother because they both expressed, but [X] more so than [Y], quite considerable distress about being – not being included in some of the educational experiences going on camp. And she believed that there were cultural reasons that that was not taking place. And she seemed quite angry about it, and frustrated about, and did openly say that she could not discuss that with her father at all. It was a no-go area in terms of discussion. The other evidence, I guess, was when I did the observations and the way that the girls were with their mother – and I mean physically, they sat beside her. They were warm and affectionate were her (sic in transcript). I did not detect any level of fear from them. I know there is nothing to be fearful of in an observation, but there was a quality to the relationship which suggested to me that they were very comfortable with her. They were very relaxed with her. They did say things, both of them, that suggested that they want to be considered similar to their peers, which is a very usual thing at their ages, and that they felt somewhat negatively discriminated against, not – not by other children, but more by the fact that they couldn’t participate in the way that they would want to in the usual experiences that their classmates were having.
Counsel: Ms E, in your opinion, that participation that you’re referring to did you form a view about whether one, both or neither of the parents would be likely to facilitate that participation?
Ms E: I formed the opinion – because the father was matter-of-fact and didn’t seem to consider while I was interviewing him that he needed to discuss those things with the children or change anything he was doing I formed the opinion that the mother was more likely to listen to the children about those things and make decisions according to at least some input from the children.
When asked about her view of the children’s relationship with their father, Ms E said:
I definitely had the impression that they love their father. But my impression was more that they want to protect him from feeling upset. So rather than them feeling relaxed around him that they were more protective of his feelings and didn’t necessarily want to rock the boat with him.
Ms E said she had not formed the view that the children had the same level of comfort and relaxation around the paternal uncle.
It was her evidence that she had not specifically addressed in her report the issue of the children’s comfort with talking to either parent about issues relating to puberty, but that in her conversation with the mother, and in her observations of the children, she had gained the impression that “they would feel more comfortable talking with her about those things”.
Ms E agreed with Counsel that the children had taken a protective stance in relation to their father’s feelings, and said that “as a pattern of behaviour and with your parents it’s not helpful”.
When asked about the statement made in her report that there might have been “emotional and intimate partner violence” in the relationship between the parties, Ms E clarified that she was referring to the mother’s perception of being controlled in the father’s family, and that the mother had said she had been financially restricted, rather than there having been physical violence. She said the mother had felt powerless in her own home to change that situation.
In relation to [Y] having told her that she wanted an outcome that was fair to both her parents, Ms E stated that she thought that response was “more an indicator of a child of that age whose awareness is of conflict and a wish to reduce it”. In those circumstances, it was Ms E’s opinion that [Y]’s statements ought not to hold very much weight.

Ms E was taken to paragraph 47 of her report, which states:
Ms Waleed also impressed as a woman who has benefited from the separation insofar as she has been able to exercise her adult authority in her own home without the need to submit to the paternal grandmother or uncle. While that may be a cultural norm within Mr Waleed’s family it was not Ms Waleed’s cultural expectation.
Ms E agreed with Counsel that it could benefit the children to see their mother acting independently of the father, and to observe her “setting her own rules and boundaries in the home in which they primarily live”.
Ms E expressed some concern that the father had agreed to an equal shared care arrangement in April 2017, but that he had been “unable to speak about any of (the mother’s) good qualities as a parent”.
It was her opinion that the father was more focused on having a competitive relationship with the mother, and on being seen as a good father, than on the children’s best interests. That opinion concurs with my impression of the father at trial.
She saw no issue with the children being placed in after-school care or in the care of babysitters trusted by the parent, and agreed that it was appropriate for the parents to make care arrangements for the children in circumstances where they were unavailable to care for them.
In relation to the paternal grandmother’s capacity to care for the children, Ms E said she was unable to comment in the absence of any expert report on the matter.
When asked by counsel for the father whether his decision not to oppose the mother’s application for sole parental responsibility in relation to health and educational matters “resolves most of the issues that were raised in your report”, Ms E stated that that was certainly the case about those decisions, but that “it doesn’t change the way that the children relate to their father”.
In relation to the children having to wear different/more conservative clothes at their father’s home, it was Ms E’s opinion, from what the children told her, that it was the paternal uncle rather than the father who had been strict about those issues, and that the father had simply carried out his brother’s wishes.
She confirmed that Mr Waleed had stated that “the men make decisions” during his interview with her, but agreed with Counsel that the fact that the father had conceded sole parental responsibility in matters of education and health meant that “this is no longer an issue”.
However, when asked again whether that concession resolved most of the issues raised in her report Ms E responded as follows:
I think qualitatively there’s a bit more to it than that in as far as – and I’ve already said earlier that my impression was that the children felt more able to discuss openly with their mother about how they feel about various different things and not – not able to do that with their father. I don’t think that changing the decision-making to allow the mother to make the educational and medical decisions alters that. It still means that they can’t freely discuss with him and be consultative with him about other things. It might be their friendships or whatever.
Under re-examination by the mother’s counsel, and when asked whether the children’s gender had influenced her view that the children should live with their mother, Ms E replied that it had, saying:
It is, because I think what they’ve experienced to date is – well we would call a very patriarchal approach and – and I think I’ve touched on it in the report in as far as I said the living culturally and Australia. And I’m not saying that Australia is not patriarchal but there could be some redress to that in terms of experiencing the mother’s changed position and being immersed in that and the impact that that might have on their own sense. It does directly relate to the way they will later relate to men.
I found Ms E to be a thoughtful and cogent witness whose evidence was clear and consistent throughout. I found her to be focused on the best interests of the children, and to have relayed their wishes in a considered and professional manner.

The Law

The orders the parties seek are parenting orders[6]. The law in relation to parenting orders is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
[6] S.64B of the Family Law Act 1975 (Cth) (“the Act”)
Section 60CA makes clear that when a court is making a parenting order, its “paramount consideration” must be the child’s best interests.
Section 60CC then sets out 16 separate factors that the court must consider when it is considering what orders to make in the child’s best interests, and I will address each of these factors in turn.
There are two “Primary considerations” and they are:
(a)     the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)     the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:     Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
The question of what constitutes a “meaningful relationship” has been discussed in many cases before this court and the Family Court of Australia.
In an oft-quoted passage from her judgment in Mazorski v Albright (2008) 37 FLR 518 Brown J said, at paragraph 26:
a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
The evidence before the court indicates that both children have a meaningful relationship with both of their parents in the terms discussed by Her Honour. I note that Her Honour’s remarks mean that the “meaningfulness” of the children’s relationship with their parents does not depend on how much time they spend with them but on the quality of that time.
If the father wishes his relationship with the children to continue to be meaningful, he must find a way to genuinely engage with them and their wishes and interests, independent of the influence of his brother and mother.
There is some evidence that the children have been subjected to corporal punishment by both parents, and particularly to their mother yelling at them. Neither of those forms of discipline is in the best interests of these children, and I note that [X] and [Y] told Ms E the mother continues to yell at them while the mother says that she has not yelled at the children since separation.
As Ms E says, the mother must learn alternative ways of disciplining the children so that they are not subjected to the emotional trauma of their mother yelling at them.
Sub-section (2A) then states:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The parties have not agreed on there being a restraint on them from applying corporal punishment the children. However, having subsection 2(A) in mind, I will make an order in those terms. It is simply not acceptable to use corporal punishment on children, and especially on children of this age.
The Act then sets out, in s60CC(3), 14 “additional considerations” which the court must take into account when deciding what orders to make in a child’s best interests.
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
[X] was almost 11 at the time of trial, and [Y] was almost eight.
Mr Waleed says that both his daughters have told him that they wish the current week about regime to continue.
Ms E’s evidence in relation to [X], is that “it was clear that [X] felt under pressure from her awareness of her father’s wishes and was constrained by that from freely saying what her wishes were in relation to the living arrangements. However, her demeanour with her mother suggested that she prefers to live with her mother”.
Ms E described [Y] as being focused on pleasing her father, and on being “fair”. It was her opinion that [Y] was unable to “consider her own feelings as separate from his”.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
Both parents say the children have close and loving relationships with each of them.
Ms E observed a close and affectionate relationship between the children and their mother, but it was her evidence that while [Y] displayed open affection with her father at interview, [X] was less engaged with him.
The father says he loves both children and is able to care for their needs.
The mother says she is better equipped to deal with the children’s issues as they transition to adolescence.
The children described a good relationship between them and their paternal grandmother, who lives with their father.
(c)     the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii)    to spend time with the child; and
(iii)   to communicate with the child;
It is the mother’s evidence that the father made most of the decisions about the children’s long term issues, particularly in relation to their education and medical matters, during the marriage. She says she was prevented from taking part in those decisions as the husband made them in accordance with his brother’s view.
Further, she complains that the father kept the children from her in the immediate aftermath of separation so that she was unable to spend time with them other than for very short periods of time.
The father denies that the mother was not involved in making decisions about the children during marriage, saying for instance that it had been a joint decision of the parties to send [X] to School 2 High School.
He acknowledges that the children spent little time with their mother in the months after separation, but blames that situation on then nine-year-old [X], who, he says, did not wish to see her mother.
I found his evidence in that regard to be lacking in insight about both the needs of the children and his role as their parent.
It is common ground that since orders were made by consent for a week about equal shared care arrangement on 19 April 2017, both parents have spent time and communicated with the children on an equal basis.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
Neither party declared either paying or receiving any assessed child support to or from the other in their Financial Statements filed as part of the property proceedings in this matter in February and April 2017 respectively, nor does the matter appear to have been raised at trial.
However, as the children currently live on an equal shared care basis, it is more likely than not that both parties maintain the children on a day-to-day basis when they are in their respective care.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The children have been living on a week about equal shared care basis with each parent since consent orders were made on 19 April 2017.
The mother now proposes to change that regime so that the children would live with her for 10 nights a fortnight and with the father for four nights a fortnight.
That is a significant change for these children.
They would be separated from their father and their paternal grandmother for 10 nights her fortnight during school terms.
No doubt that change would take some adjustment on their part, although Ms E seemed to be of the opinion that living primarily with their mother would provide them with the strong female role model that is lacking in the father’s home.
The children, and particularly [X], will reach puberty over the next few years, and both the mother and the father (albeit after some robust cross-examination) agreed that the children would find it easier to talk to their mother about such things than to their father.
While it might take some adjustment for the children, Ms E was of the opinion that the children wished to live primarily with the mother.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
There is no evidence that there is any practical difficulty or expense involved in the children spending time with either their father or their mother as the parties live in reasonable proximity to each other.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There seems to be no evidence suggesting that either party cannot take care of the children’s material and educational needs. They are well fed, clothed and housed, and they attend school regularly, although the mother does express some concern about the father’s lack of insistence on them bathing while in his care.
It is in the area of [X] and [Y]’s emotional needs that the Court has some concerns.
The father’s evidence about their having access to the internet in order to obtain information about puberty issues was quite confronting and showed little insight into the children’s emotional needs as they enter and traverse adolescence.
Similarly, his evidence about adhering to the then nine-year-old [X]’s stated wishes not to see her mother in the months post separation also shows a lack of understanding about what his daughter might actually have been saying. At trial he could not seem to comprehend that a nine-year-old simply does not have either the cognitive or emotional maturity to make such momentous decisions, no matter how she feels.
It was apparent in the father’s evidence that he had not told the children their mother still loved them because she would not have left if she did love them, that he was concentrated on his own feelings and responses rather than those of the children at the time.
In contrast, the mother’s acknowledgement that she should not have sent the text message annexed to the father’s initial Affidavit showed some insight into what might or might not be appropriate behaviour, as did her concessions that she had yelled at the children and that she had hit [X] on the arm on one occasion.
However, her denial that she still yells at the children did not ring true, and it was directly contradicted by the information given to Ms E by the children themselves.
It is in Ms E’s interview with the children and in her observation of them with the parties that perhaps the clearest picture arises.
The children were relaxed and affectionate with their mother, and while not tense with their father, [X] was described as not engaging with him as closely as [Y] did.
That might be a result of her approaching adolescence, or as a result of what Ms E described as her fear of the consequences from her father of speaking her truth, but when the evidence is taken as a whole I am satisfied that it is the mother who can best provide for [X] and [Y]’s emotional needs.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
Ms E says that [X] is well able to express her feelings and wishes for child of her age, but that [Y] is not yet emotionally mature enough to differentiate her feelings and wishes from those of her father.
I do take into account the fact that both children are girls and that they are approaching adolescence and puberty.
Both parties expressed a willingness and a positive wish for the children to continue to be exposed to their Country B heritage while also being immersed in Australian culture. These children have a rich heritage and it is greatly to their benefit to grow up knowing its culture, religion and language.
There is suggestion that the traditions of the culture as practised in the father’s home are slightly more conservative than those in the mother’s home, but I am satisfied that in both religious and cultural terms, these children will grow up with the benefits of both cultures.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant factor in these proceedings.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Both parties impress as loving and caring parents. As I have already said, there is no doubt that they love both children dearly and want only what is best for them.
However, their attitudes to the children, and to the responsibilities of parenthood demonstrated by each of them are slightly different.
The mother impresses as understanding that, as the children grow, their needs will develop and change, and she appears to be prepared for that development and change.
The father does not demonstrate the same depth of understanding of his children and their needs, nor of his role as their parent. That is demonstrated in his behaviour between the date of separation in September 2016 and the date orders were first made in these proceedings in April 2017, and in his lack of insight into the children’s emotional needs as they approach adolescence.
Ms E describes his parenting style as “authoritarian” rather than “authoritative”, and it was her opinion that such a parenting style might have some deleterious effects on the children’s development.
(j) any family violence involving the child or a member of the child’s family;
The father obtained an intervention order against the mother, naming both himself and the children as Affected Family Members after receiving the angry text from the mother shortly after the date of separation.
However, at trial, he was forced to concede that that was the only instance of the mother making threats against him or his family, and that she had done so in the heat of the separation. It was his evidence that the mother had otherwise not committed any act of family violence against him.
The mother alleges that the father was controlling of her and the children, and that he made all major decisions in the family after consultation with his brother and mother. I note that the father denies this, but I find, on the evidence before the court, that it is more likely than not that the father’s behaviour during the marriage was indeed controlling, and that it was he in consultation with his brother, for instance, who decided that [X] would attend School 2 High School.
The information provided by the children to Ms E about the clothes they are permitted to wear while in the father’s care also supports the mother’s contention that the father’s behaviour is somewhat controlling.
That is not to say that he is a violent man, but merely to say that he believed, and continues to believe, that as a man he is entitled to make family decisions.
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;

As stated above, in the weeks after separation, the father obtained an Interim Intervention Order against the mother which named him and the children as Affected Family Members.
That Intervention Order is no longer in existence, and as far as the court is aware, no application has been made by either party since that time.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
[X] will attend high school in 2019, and [Y] will be in Grade 4. It is vital that they have stability in their lives as they pursue their education, and for those reasons it is certainly preferable for the orders I make in these proceedings to be final orders.
It is certainly to be hoped that both parties will accept the decision of the court and will not institute further proceedings about their children’s care in the absence of some yet-unforeseen emergency.
(m) any other fact or circumstance that the court thinks is relevant.
There are no other facts or circumstances that the Court deems relevant to the consideration of orders that would be in the children’s best interests.

Decision: Issue A

While the children are reported to have progressed reasonably well in the current regime of equal shared care, I find that, when the whole of the evidence is taken into account, it is not in their best interests to continue to live in a week about arrangement during school terms.
The mother will have sole parental responsibility for matters of education and health by consent between the parties, and that may be difficult to exercise if the children live with each parent equally, especially in circumstances where the parties’ parenting styles are different, and mother has felt controlled by the father.

Issue B. If the children are not to live in an equal shared care arrangement, where should the children live?

Decision: Issue B

When I consider all the above issues and evidence, and in particular the evidence revealing the father’s apparent lack of insight into the emotional needs of his preadolescent daughters, I find that it is in the children’s best interests to live primarily in their mother’s care.
It is in her care that the court believes they will receive the understanding and emotional support they need as girls approaching adolescence.

Issue C. If the children are not to live an equal shared care arrangement, how much time should the children spend with their non-resident parent?

It is the mother’s case that the children should live with the father during school terms on each alternate weekend from the conclusion of school on Thursday (or 5:00p.m. if it is non-school day) until the commencement of school on Monday (or 9:00 a.m. if it is a non-school day).
That is a regime which allows the father to be involved in the children’s school and extracurricular activities and it comprises “substantial and significant time” under s.65DAA(3) of the Act.
The father does not appear to propose any alternative to his application for equal shared care, but I note that during his evidence he expressed concern that the children would not have contact with him and his family for 10 nights every fortnight, as he continues to have some concerns about their welfare in the mother’s care.
While it does not appear to make sense that he would seek week about care if he had genuine concerns about the children’s welfare in their mother’s care, I accept that it is in the children’s best interests to keep in regular and fairly frequent contact with their father and paternal family.

Decision: Issue C

In addition to the time proposed by the mother, I consider it to be in the children’s best interests for them to spend the period from after school until 7:30 p.m. on each alternate Thursday with the father.
That is, during school terms, the children will spend time with their father in a two week cycle from the conclusion of school on Thursday to the commencement of school on Monday in the first week, and from the conclusion of school until 7:30p.m. on Thursday in the second week.

Issue D: Whether the children’s unsupervised time with their paternal grandmother should be limited in light of the health concerns raised by the mother

The mother alleges that the paternal grandmother suffers from dementia, that she forgets to turn the stove off, to turn taps off and that she is not capable of caring for the children on their own. She says that the children are at risk in the sole care of their grandmother.
The father denies that his mother, who is 82 years old, suffers from any kind of dementia, and says the mother was perfectly content for the children to be cared for by their grandmother during the marriage.
On 17 April 2018, an order was made by consent for the father to obtain a report from his mother’s treating gerontologist or GP giving an assessment of her state of health in this context.
At the same time, and also by consent, an order was made that the children not be left in their grandmother’s sole care for periods of more than one hour.
No report about the grandmother’s capacity to care for the children on her own was ever filed with the Court. Nor was the grandmother herself placed on Affidavit to refute the concerns.
At trial, Ms Low, counsel for the father, advised the Court that she was in possession of such a report but that its author had not been prepared to swear an Affidavit as to the veracity of its contents.
She attempted several times to have the report admitted into evidence by what might be called a “backdoor route”, and was very keen to have the report before the court.
Ms Kildea, for the mother, invited me to take the inference that the report in Ms Low’s possession would not have been favourable to the father’s case.
I am not prepared to go that far, but as it is not disputed that the grandmother speaks no, or very little English, and that she would therefore find it difficult to get help in an emergency, and in the absence of an admissible report as to her capacity, or indeed any evidence about that save for the mother’s allegations and the father’s denials, I will extend the current order that the children not be left in her sole care for period of more than one hour to [X]’s 14^th birthday.
By that time, both children will be old enough to seek help in an emergency, and to provide for most of their own immediate needs.
I make that order being mindful of the Court’s overriding obligation to make orders that protect children from harm.

Issue E: Whether there should be an order that the parents being substantial attendance whenever the children are in their care

It goes without saying that, in general, when a parent obtains an order that a child live with, or spend time with him or her, the child’s care should be undertaken by that parent during the specified times.
However, the Court recognises the reality that parents need to work, that children have close and caring relationships with other family members and friends, that there are times when children need to be placed in the care of professional carers and so on.
I note that the term “substantial attendance” does not require a parent to be physically present for every minute of the time stated in the order. It means merely that that parent must be available to supervise the child in a general way and to assist the child in any emergency. It is always acceptable for a parent to leave a child, properly supervised, in the care of a third party while the parent attends to the everyday tasks necessary to conduct one’s life. To order otherwise in the absence of any real risk to the child would be to restrict the normal, everyday pattern of life too much for the adults.
An order that each parent be in substantial attendance when the children are in their respective care means that each parent needs to be responsible for the care of the children during that time and not have third parties, whether family members or friends, look after them for long periods, that is, overnight, or for days or weeks at a time when the other parent is available to care for the children.

Decision: Issue E

Again, I will make such an order, but it will expire on [X]’s 14^th birthday for the reasons given above.

Issue F: Whether there should be an order to the effect that where a parent is unable to care for the children, the other parent should be afforded the first option to care for them

The proposals of both parents include, at very least, that the children spend substantial and significant time with the other parent.
I can only surmise from that that both are content for the other to care for the children, at very least for limited periods.

Decision: Issue F

In those circumstances, and where it is possible that the mother might again have opportunities to travel for work purposes, or where she wishes to travel on her own, or indeed where the father wishes to travel, I find it in the children’s best interests for the other parent to be given first right of refusal to care for them in circumstances where one is unable to do so.
In that way, when one parent is unable to care for them, the children will have the opportunity to spend that time in a comfortably familiar environment where they are aware of the way the household operates.

Issue G: Whether the parents should be able to contact the children at any time when they are in the other parent’s care

I find little to quibble with in the idea that children ought to be able to contact one parent according to their own wishes when in the care of the other parent, but there are circumstances where, if left unchecked, an anxious parent might contact the children to an intrusive degree when they are not in that parent’s care.
I note, in this context, the father’s concerns about the children’s welfare when in their mother’s care.

Decision: Issue G

In all the circumstances of this case, and taking the above matters into account, I will make an order for the father to be permitted to contact the children on the Sunday evening of the weekend when they are not in his care.

Issue H: Whether the parties should be restrained from allowing Dr A to continue to provide counselling treatment to the children

Dr A is the children’s treating psychologist. She was engaged by the parties after separation to address the children’s reluctance to spend time with their mother.
Dr A prepared a report on the instructions of the father’s solicitor and swore an affidavit in relation to that report, that affidavit being filed on the day before trial.
Counsel for the father sought to have the affidavit of Dr A admitted into evidence and for Dr A to be permitted to give oral evidence at trial.
Counsel for the mother opposed that application and, after hearing submissions by counsel for each party, I declined to admit Dr A’s affidavit or to permit her to give evidence at trial. I gave my reasons for that decision at the time.
In her opening address, Counsel for the mother stated that the mother also sought an order that the parties be restrained from allowing the children to continue to see Dr A on the basis that she had provided evidence on behalf of the father and could therefore no longer be seen to be independent of the father in her treatment of the children. Counsel said that she would provide further submissions on that issue later in the proceedings. However, that issue was not addressed further during the trial, and neither party either mentioned it in submissions or included such an order in the orders sought at the submissions stage.
It is regrettable that Dr A thought it appropriate to file an affidavit on behalf the father and to seek to give evidence on his behalf. In the absence of an Independent Children’s Lawyer being appointed in this matter, it would have been more appropriate for the parties to jointly send a letter of instruction to Dr A if they wished her to provide such a report.
If the children were to discover that their treating psychologist had filed a report which discussed what they had thought was confidential counselling with her, it would almost certainly create difficulties for the continuation of that counselling.
Nevertheless, it may be more appropriate for Dr A to address that issue with the children in counselling as part of the therapeutic process. The outcome of that process might well be that the children lose confidence in her and wish to see a different counsellor should they require counselling in the future.

Decision: Issue H

Nevertheless, on the actual evidence before the court, as opposed to submissions from the bar table, I am not satisfied that I should make an order restraining the parties from allowing the children to continue to see Dr A. They have clearly benefitted from that intervention and it would be a shame for them to have to become used to another counsellor.
I will, however, make an order that, if Dr A is to continue to see the children, the parties be at liberty to provide her with a copy of these Reasons for Judgment.

Issue I: Whether there should be orders restraining the parties from:

(a) posting inappropriate pictures/photographs of the children on social media;

The father’s Outline of Case Document filed on 10 April 2018 is silent on this issue, but in his Amended Response filed on 11 April 2018, the father seeks an order that the parties be restrained by injunction from “(p)utting inappropriate pictures/photographs of the children on social media such as Facebook or other such media”.
During his cross-examination by the mother’s Counsel, the following exchange took place:
Counsel: Are you still seeking a restraint on my client putting inappropriate pictures, photographs of the children on social media, such as Facebook or other media?
Mr Waleed: Yes.
Counsel: Why?
Mr Waleed: That was – that was a decision by the court, and I agreed to it. I’ve never published Ms Waleed’s (sic in transcript) photos anywhere.
Counsel: But if my client wants to put a photo up on Facebook of the kids, why shouldn’t she?
Mr Waleed: I have no problem with that.
Counsel: So you would accept that that paragraph could be struck out?
Mr Waleed: Whatever the law says, I respect that. The others, I’m not much aware of the law and the regulations.
However, it became clear soon after that exchange that Mr Waleed was not entirely understanding the questions that been put to him, and I said the following to him by way of explanation:
your solicitor has filed an amended response in these proceedings, and that response was filed because you wanted to change the orders that you are asking the court to make. And some of the orders that you are asking the court to make in that document were about limiting what you and Ms Waleed can do in relation to posting on social media or talking to the children and some other things. Did you understand that that’s what was being done, that a document was being filed with the court asking the court to make those orders?
Mr Waleed replied in the affirmative.
Counsel then asked him the question again:
So do you still want the court to make an order that you can’t put – that both you and my client can’t put inappropriate pictures/ photographs of children on social media?
Mr Waleed replied: “Yes, I do.”
He accepted the suggestion by counsel that neither party had thus far posted anything on social media that had been inappropriate, and it was then put to him that the court should not make such an order because it would “simply lead to further problems”.
Mr Waleed asked for an example of such a situation and Counsel gave him the example of there being differences between the parties about the appropriateness of the children’s clothing. Mr Waleed said that he had “no issues with my kids’ clothing”.
Counsel asked no further questions on that issue.
I note that the parties have agreed that in matters other than education and health, they will have equal shared parental responsibility for their daughters.
In those circumstances, I find it appropriate for each of the parties to seek the other’s consent before posting photographs of the children on social media.

(a) making comments or statements in relation to their relationship disputes or parenting issues to, or in the presence or hearing of the children; and

It is never in children’s best interests for disputes between their parents to be played out in their presence.
Such behaviour places a burden on the children, not only because they might experience trauma from what is said about or to the other parent, but because they then are likely to feel pressured to choose one parent over the other.
I will therefore make an order that the parties be restrained from involving the children in any relationship or parenting disputes that might arise between them.

(a) administering any form of corporal or otherwise inappropriate punishment to the children, or permitting any third person to do so.

There are allegations on both sides that the children have been physically disciplined by the other parent. The children told Ms E that the mother had hit them. The mother admitted at trial that she had hit [X] on at least one occasion. It is unclear whether the father has struck the children.

Decision: Issue I

In those circumstances, and in the firm belief that corporal punishment administered to children can be traumatic and distressing for them apart from any physical pain they might feel, I will make an order restraining both parents from using corporal punishment as a form of discipline with the children, and from allowing any other person to use such disciplinary measures.
I note that such an order is consistent with the provisions of s60CC(2)(b).

Conclusion

It is clear that both of these children are dearly loved by both their parents.
The children have solid and continuing relationships with each of the parents and although they will spend less time with their father than they have been used to for the past couple of years, it is the quality of time spent with the parent, and not the quantity, that determines the strength and meaningfulness of that relationship.
It is to be hoped that these parents can put aside their personal differences, and work together in terms of practical arrangements so that they are the best parents they can be for their two dearly loved daughters.

I certify that the preceding three hundred and fifty two (352) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 22 February 2019

[2019] FCCA 389

22 February 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness