Youseff and Youseff

FAMILY COURT OF AUSTRALIA

YOUSEFF & YOUSEFF

[2011] FamCA 996

FAMILY LAW – PARENTING – mother to have sole parental responsibility – mother’s parenting skills called into question by the father – children have conflicting views – father’s parenting time specified – Parents not to denigrate each other to the children or discuss the case with them.

APPLICANT:

Ms Youseff

RESPONDENT:

Mr Youseff

INDEPENDENT CHILDREN’S LAWYER:

Mr Moylan

FILE NUMBER:

SYC

1117

2010

DATE DELIVERED:

23 December 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

14,15 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ladopoulos

SOLICITOR FOR THE APPLICANT:

Hamish Cumming Family Lawyers

SOLICITOR FOR THE RESPONDENT:

Mr Youseff appeared on his own behalf

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sara

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Moylan Family Lawyers

Orders

That all existing orders in relation to the children:
B born on … 2000
C born on… 2001
D born on … 2002
E born on … 2003
(“the children”) are discharged.
That the mother have sole parental responsibility for the children.
That the children live with the mother.
That the children spend time with the father as follows:
4.1for ten days in Term One, Term Two and Term Three school holiday periods as agreed in writing and failing agreement for the first ten days
4.2for two weeks in January of each year commencing on 5 January in 2013 and each alternate year and on 8 January in 2014 and each alternate year, unless otherwise agreed in writing
4.3on Fathers Day in each year if time would not otherwise occur, from 9:00am until 6:00pm provided that the father travel to Melbourne to spend such time with the children
4.4on each of the children’s birthdays in the event that the birthday falls on a school day from the conclusion of school until 6:00pm or in the event that the birthday falls on a non-school day from 12:00noon until 5:00pm provided that the father travel to Melbourne to spend such time with the children.
Each parent may communicate with the children via telephone and internet when the children are in the care of the other parent on one occasion each week as agreed or failing agreement on Thursday evening between 6:00pm and 7:00pm.
The operation of orders 4 and 5 is suspended until 30 March 2012.
That the children spend no time with the father on Mothers Day in each year.
For the purposes of implementing orders 4.1 and 4.2 unless otherwise agreed in writing, changeover shall occur by the father collecting the children at Southern Cross Station in Melbourne no later than 8:00am on the day in which time is to commence and the mother shall collect the children at Central Station in Sydney no later than 8:00am on the day in which time is to conclude.
That, for the purposes of implementation of orders 4.3 and 4.4, the father will provide no less than 14 days written or email notice to the mother that he intends to exercise such time with the children and he will collect them from and return them to the mother at Southern Cross Station in Melbourne.
Neither party will discuss or allow any other person to discuss these proceedings with the children.
Neither party will show copies of any documents related to these proceedings to the children or allow any other person to do so.
Neither party will denigrate or allow any third party to denigrate the other parent to the children or in the presence or hearing of the children
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All material produced on subpoena to be returned.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1117 of 2010

Ms YOUSEFF

Applicant

And

Mr YOUSEFF

Respondent

REASONS FOR JUDGMENT

the proceedings

Mr Youseff and Ms Youseff are the parents of four children:
B born in 2000 (11)
C born in 2001 (10)
D born in 2002 (9)
E born In 2003 (8) (“the children”).
These proceedings concern parenting arrangements for the children.
The Independent Children’s Lawyer (“ICL”) proposed that the mother have sole parental responsibility and that the children live with her in Melbourne. They would spend time with their father for ten days during each of the short school holidays and for two weeks in every Christmas vacation. The ICL’s proposal would allow the children to spend time with each parent on special occasions.
The mother essentially agreed with the proposal of the ICL. She suggested that the children’s Christmas holiday time with the father commence on 5 January and 8 January in alternate years. She recognised that 7 January is an important occasion in the F Religion, of which the parties and children are members.
The father proposed that the children live in Sydney with the mother from Monday to Friday and with him on weekends. This proposal sits uncomfortably with the numerous complaints and criticisms which the father levelled at the mother’s character and parenting capacity.
The father was born in 1969 in Country G and came to Australia with his family in 1995. The mother was born in 1975 in Country G and came to Australia from Country H in 1998. The parties met in February 1999 and married in 1999.
The mother alleged that the father directed physical violence at her throughout the marriage. She alleged further that he prevented her from associating with her family or making friends, learning to speak English, opening mail, driving a car and obtaining Australian citizenship. She claimed that the father instructed the children to call her “[mother’s Christian name]” rather than “Mum”, saying to them “call her [mother’s Christian name]. She is not good enough to be Mum”.
The father alleged that he hit the mother on one occasion only, when she struck his face. As will become obvious in the course of these reasons, I prefer the evidence of the mother to that of the father wherever there is a conflict.
Between August 2000 and 12 January 2003 the parties and B lived with the father’s parents. He claimed that this arrangement was necessary because the mother was incapable of organising a household without the assistance of the paternal grandmother. The mother acknowledged that she had some difficulties but pointed out that she had small children and was sick during her pregnancies.
The parties separated on 14 February 2009 in disputed circumstances. The mother alleged that the father told her “our marriage is over” and purchased a one-way ticket to Melbourne for her. She claimed that he took her to a railway station and physically put her on a train. She said that he gave her no money. The mother went to live with her sister and brother-in-law, Mr and Ms J, in Melbourne.
The father’s version of the events surrounding the separation was that the mother told him that she wanted to visit her sister in Melbourne for two to three weeks but elected not to return to him and the children at the end of her holiday. He alleged that he gave her $200 and purchased a train ticket for her.
The mother’s brother-in-law Mr J gave unchallenged evidence that she arrived in Melbourne “very sad and upset about leaving the children”. It seems to me to be highly unlikely that the mother would be in this state if she had merely been visiting her family in Melbourne for a short time.
The mother alleged that the father took her to the offices of a solicitor on three occasions shortly before she left for Melbourne and that she signed an English language document which she did not understand. She claimed that the document was not translated for her and that she had no independent legal advice.
A letter dated 26 March 2009 from Messrs Slattery Thompson, Solicitors, to the mother (annexure A to the affidavit of the mother sworn 9 November 2011) referred to this document as “consent orders granting the children to live with the father and you and your husband to have shared equal parental responsibility”. This letter informed the mother that the father now sought sole parental responsibility for the children.
The father maintained that the mother had the assistance of an solicitor speaking her language when she signed these consent orders. There was no evidence from this person, nor was a copy of the document in question produced. I appreciate that the father was unrepresented at the final stage of the proceedings but he had instructed lawyers at all times until early in 2011. The mother raised this issue at an early stage in the litigation.
The parties gave differing accounts as to the reasons for the lack of face-to-face and telephone contact between the mother and the children after the separation. The mother claimed that the father made and broke several promises to send the children to Melbourne to spend time with her and that he swore at her if she telephoned the former matrimonial home. She alleged that he said to her in mid-2009 “you can see them when you return to live with me and the children. Otherwise you must not contact or communicate with them.”
The father alleged that the mother declined to speak with the children when he telephoned her sister’s home. He claimed that she did not respond to a message on her mobile telephone from B, when the child broke her arm in 2009. The mother admitted that she received this message and that she did not return B’s call. She said that she failed to do so because she was afraid that the father would again swear at her on the telephone.
The mother alleged that she began to speak to B at school after the separation but, on the second occasion, B said to her “Dad beat me because I talked to you on the telephone. He said that if I keep talking to you on the telephone, he will move me to another school”. The records of K School (exhibit 7) noted several calls from the mother. The principal, Ms L, kept notes in a diary of calls from the mother but she did not document all of these conversations. These records clearly establish that the mother spoke to B several times during 2009. If the mother did not want to speak to the children, it seems to me unlikely that she would go to the lengths of arranging to talk to B at her school.
When the mother first arrived in Melbourne, her sister and brother-in-law put her in contact with an organisation known as “[M Org]” which offers assistance to victims of domestic violence. Her caseworker, Ms N, appears to have played a role in arranging for B to speak to the mother on the telephone at her school in 2009. It is clear that the mother has received valuable assistance from Ms N throughout her time in Melbourne.
The children first saw the mother after the separation for approximately 1½ hours on 17 February 2010 at their school. The mother said that she did not go to the school at an earlier time because she had been told that the father beat B after they spoke on the telephone. She said also “things were taking shape in court” when she went to see the children at their school.
The mother explained that, with the support of Ms N, she applied for legal aid in Victoria in April 2009. For that purpose, however, she required identification and needed to obtain her passport from the father. Her brother-in-law asked the father to send her passport to the mother but he did so only when a police officer intervened several weeks later. The mother received a grant of legal aid in Victoria in August 2009 and the file was then transferred to Sydney, where her application was filed in February 2010.
The children next saw the mother on 4 August 2010 in a “child and family meeting” with a Family Consultant. On 18 August 2010 interim orders were made by consent, which provided that the children speak to the mother by telephone each Tuesday and Saturday and spend time with her in Sydney for four hours on each of 9 & 10 October 2010.
On 14 December 2010 I ordered that the children spend time with the mother in Sydney from 3:00pm until 8:00pm on 15 December 2010 and from 28 December 2010 until 2 January 2011 and between 17 and 22 January 2011 in Victoria. I also ordered that the father provide to the mother copies of the children’s 2010 school reports.
The father at no stage provided to the mother copies of the children’s school reports in accordance with this order. He suggested that he could not afford to do so but then added “that is up to the mother”.
The children spent time with the mother as ordered on 15 December 2010 but only after the school principal intervened to extract E from the father’s motor vehicle. The father claimed that he did nothing to cause E to remain in his van, rather than accompany the mother. It does not appear that he took any steps to encourage the child to go with his mother.
The children did not travel to Victoria to spend time with the mother on 28 December 2010. The Family Consultant asked the father for an explanation and reported:
[Mr Youseff] said the children did not travel to Melbourne as per the orders dated 14 December 2010 because
(a) his lawyer never showed him or explained to him the orders. He said that he asked his lawyer about them outside the courtroom and his lawyer told him to make an appointment. [Mr Youseff] said that he went to his lawyer’s office and an altercation occurred between him and his lawyer and the police were called;
(b) he did not receive notice within 7 days which was to inform him of where the children were to stay in Melbourne;
(c) [Mr Youseff’s] solicitor changed the method of travel from train to plane, which was not part of the orders and
(d) the older children did not want to travel to Melbourne.”
The orders did not specify train travel for the children.
The proceedings were listed for final determination before me to commence on 6 April 2011. On that date the parties agreed to trial interim orders, which would see the children remain living in Sydney with the father but spending regular time in Melbourne with the mother. These orders provided that the children spend time with the mother during the April, July and September/October 2011 school holidays. Arrangements were made for the children to be interviewed by the Family Consultant for an updated Family Report, immediately upon their return to Sydney in the company of the mother in October 2011.
The children travelled to Melbourne to spend time with the mother in accordance with the orders in April 2011. They returned to Sydney with the father on 26 April 2011 and, on the following day, the father took C to Suburb O Police Station. The COPS entry of 27 April 2011 read inter alia:
YP1 C has told his father that his mother slapped him across the face, after he had dropped a plate and he was locked in his bedroom for a number of hours. The YP also told his father that his aunty’s boyfriend [Mr J] had locked him in his bedroom after YP1 refused to go to the shops and on a second occasion because YP1 wouldn’t put his shoes on…
While speaking with police YP1’s story changed a number of times and police believe that YP1 was not telling the truth. Police spoke to the other YPs who stated that YP1was locked in a bedroom for misbehaving but exact times are unknown and police believe it was for punishment only. At this stage police have no fears for the safety and welfare of the 4 YPs as they are in their father’s care and the alleged assault is alleged to be untruthful as the YP’s story was constantly changing.
In her affidavit sworn on 9 November 2011 the mother deposed that C misbehaved on the way to a family dinner at a restaurant. Plans for the meal were abandoned and Mr J sent him to his room. Approximately 20 minutes later the mother checked on C and saw him asleep on his bed. About two hours later, C emerged from his room and apologised to Mr J. He then had dinner and settled down to watch a DVD with the other children. The mother denied that she struck C on his face during this visit.
In June 2011 the father’s solicitor wrote to the mother’s lawyer, insisting that the children not live at the home of Mr J during the July 2011 school holiday period. The father also insisted that Mr J spend no time alone with the children during this period. As the mother had secured independent accommodation through her local church, she proffered the requested undertakings.
On 16 June 2011 the father filed a Notice of Child Abuse or Family Violence which alleged:
1. [C] was locked in a room for extended period without food or water.
2.[B] was forced to clean the house.
On 22 June 2011 the father filed an Application in a Case, by which he sought to suspend the children’s time with the mother in July 2011.
On 5 July 2011 this application came before the Principal Registrar who ordered, having noted the mother’s undertakings, that the mother collect the children from the Virgin Blue check-in desk at Sydney Domestic Airport at 5:00pm on 5 July 2011. The Principal Registrar ordered that, in the event the children were not so delivered, the matter was to be relisted before her on 6 July 2011. The father failed to comply with this order.
On 5 July 2011 at court the mother heard for the first time that E had been bitten by a friend’s dog on 3 July 2011 and taken to Hospital P. The hospital records indicate that he required several sutures to the bite wounds and that the father “had to prise the dog’s jaws apart to get him off the child”. Apparently, the father saw no need to inform the mother of this very serious incident.
On 6 July 2011 the Principal Registrar ordered that the father deliver the children into the care of the mother at the Child Dispute Service within the Registry no later than 2:00pm that day. The father delivered the children at 2:45pm and they proceeded to Melbourne with the mother.
The children returned to Sydney on 16 July 2011. On 18 July 2011 the father took all four children to Suburb O Police Station to record complaints about the mother’s alleged treatment of them. The relevant COPS entry noted, inter alia:
All of the young persons had a story to tell of their mother in Victoria doing something bad to them. This…includes slapping the children and punishing the children for various reasons. The young persons had no bruises on them and were aware of each other’s story. The stories kept on changing each time they were told. At this stage police have no fears for the safety and welfare of the four young persons as they are in their father’s care and the alleged assault is believed to be untruthful as the young person’s story was constantly changing.
On 1 August 2011 the father filed an Application in a Case by which he sought to suspend the children’s time with the mother in the September/October school holidays. On 3 August 2011 the father filed a Notice of Risk of Child Abuse in which he alleged:
1.[B’s] mother grabbed her from her clothes, hide her mobile phone and cut off a call received from a friend. Also took her diary from her.
2.[E] was taken to the shower and the mother took photos of him against his will and was slabbed across the face.
3.[D] was hit in the nose by her mother’s elbow and was laughed at when she started crying.
4.[C] was hit in the hand and pinched in his arm when he was defending his younger brother and sister from the mother’s attack on them.”
The father’s application to suspend the children’s September/October 2011 time with the mother was dismissed by the Principal Registrar on 7 September 2011. The father then took the children to Melbourne by train, arriving at approximately 8:00am. He had not informed the mother of their arrival time but telephoned her at 8:10am and said “We are at the station. If you are not here by 8:30am, I am leaving with the children to Sydney”. The mother lives at least one hour’s drive from the station but, ultimately, the father agreed to wait until she arrived to collect the children.

The final stage of the hearing took place before me on 14 and 15 November 2011. I reserved judgment and made the following consent orders for the children to spend time their mother during the 2011/2012 Christmas school holidays:
Pending further order it is ordered:
1.         The children shall spend time with the mother over the Christmas holiday period commencing on the day after the last day of school in December 2011.
2.         For the purposes of implementing order 1 herein the father shall deliver the children to the mother at Spencer Street Station at the commencement of time and the mother shall deliver the children to the father at Central Station at the conclusion of time.
3.               The mother is permitted to enrol the children in a school in Melbourne, Australia.
4.               That [Mr Youseff] born … 1969 and / or [Ms Youseff] born … 1975 and / or their agent be and are hereby restrained from removing or attempting to remove or causing the removal of [B] born … 2000, [C] born … 2001, [D] born … 2002 and [E] born … 2003 (“the children”) from the Commonwealth of Australia and it is requested that the Australian Federal police give effect to this order by placing the names of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s name on the Watch List.
NOTATION
1.         The intention of order 3 is to preserve the mother’s application that the children live with her in Melbourne, it does not permit the children to attend such school unless an order is made to that effect.

Approach to These Proceedings

In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the children who are the subject of the proceedings. Part VII of the Family Law Act sets out a number of mandatory considerations which prescribe the pathway to that decision.
Section 60CC sets out two “primary” and thirteen “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests. Section 60CC(4) requires the court to consider also the extent to which each of the child’s parents have fulfilled, or failed to fulfil his or her responsibilities as a parent.
The court must have regard to the objects of Part VII, as set out in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child’s right to enjoy his or her culture.
Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:
[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9] Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”…
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”…
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.…
In Cowley v Mendoza [2010] Fam CA 597 Murphy J set out a “summary of principles”, drawing together the relevant legislation, the decision of the Full Court in Goode and Goode (2006) FLC 93-286 and the judgment of the High Court in MRR v GR. I extend my gratitude to his Honour for this analysis, which has figured heavily in the approach which I now set out to my determination of these proceedings.
When a court makes or contemplates making a parenting order, it must:
·apply the presumption of equal shared parental responsibility
·determine whether there is abuse of a child or family violence, which means that the presumption does not apply
·determine whether the presumption is rebutted by evidence that it is not in the child’s best interests for there to be equal shared parental responsibility
·if the presumption applies:
¨   determine whether it is in the child’s best interests for there to be an order for equal time with each parent
¨   make findings as to the matters set out in section 65DAA(5) which are:
Reasonable practicality: In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
¨   as a result of this enquiry, make findings as to whether an equal time order is reasonably practicable
¨   if an equal time order is not reasonably practicable, carry out the same process in respect of a “substantial and significant time” order
·if there is no equal time or substantial and significant time order, proceed to determine what orders are in a child’s best interests.

Consideration

The ICL and the mother proposed that she have sole parental responsibility, on the premise that the children live in Melbourne with her and the father remains in Sydney. In an Amended Initiating Application filed on 13 May 2010 the father sought an order that the parties have equal shared parental responsibility.
It seems to me that a regime of equal shared parental responsibility would be doomed to failure for two principal reasons. Firstly, the parties live in different states and there would be practical difficulties with the making of joint decisions. Secondly, the father’s derisory attitude to the mother does not auger well for a constructive, cooperative approach to decisions about the children’s welfare. I simply cannot envisage a successful regime of equal shared parental responsibility and there will be no such order. I am thus relieved of the obligation to consider whether it is in the children’s best interests, and reasonably practicable, for them to spend equal or substantial and significant time with each parent.
The proposals of each of the parties and the ICL carry a necessary implication that the children will benefit from a meaningful relationship with each of their parents. As noted, however, it is difficult to reconcile the father’s proposal that the children spend the majority of their time with the mother with his ongoing litany of complaints about her treatment of them.
The father complained that the mother physically abused the children during the marriage and has continued to do so since the separation. For example, in an affidavit which he swore on 16 June 2010 he alleged “she used to drag [B] on the ground by her hair and my brother [Mr Q] saw that and split [B] from her mother”. The mother denied that she treated B in any such manner but agreed that, unintentionally, she may have pulled the child’s curly hair with a comb.
Over the objection of counsel for the mother I allowed the father to call his brother to give evidence as to this alleged incident. Mr Q said that he saw the mother “pulling [B] from her hair and dragged her on the floor in 2007”. In cross-examination by counsel for the ICL he said that he was reversing a semi-trailer at the time and saw the incident in his left rear vision mirror. He said that he made no report to police or child protection authorities of this incident and agreed that he had discussed his evidence with the father.
I doubt that Mr Q had a clear view of this alleged incident if he was concentrating on reversing a large truck at the time. I attach little weight to his evidence but I do regard as significant the fact that the father called him to give evidence which was critical of the mother. The fact that Mr Q was prepared to give this evidence is not an encouraging indication of the view of the mother which is held in the paternal family.
In the same affidavit the father alleged that the mother “used to hold the knife at [B] to scare her”. The mother categorically denied that she ever threatened B with a knife. This affidavit also contained a number of generalised allegations of physical mistreatment by the mother which were never put to her.
The mother denied each one of the allegations contained in the father’s Notices of Child Abuse and the assertions which he made to the Family Consultant that she physically mistreated the children. There was no independent evidence that the mother in fact perpetrated any of the acts of abuse which the children reported to the father after spending time with her. I have referred above to opinions of police officers who interviewed the children that their complaints lacked veracity.
The Family Consultant asked the father directly if he had “encouraged the children to report bad things about their mother”. He replied “I told them to report anything bad that happens and how they are living there”. It is thus apparent that the father invites complaints about the mother from the children.
The Family Consultant noted in her report of 2 November 2011 that the children made complaints about the mother’s treatment of them after they had lunch with the father on the day of the interview. She reported:
The children were interviewed briefly after they had had lunch with the father, to understand whether the children would add anything to their responses from their interviews in the morning. [B] checked whether they were going to see their mother in the next school holidays. [D] said ‘oh yeh! She kept yelling at us ‘cos we didn’t want to go to church that was really crowded.’ [C] said ‘oh yeh. One thing…she grabbed [E] by the shirt and pushed him to the ground. Another time she grabbed him by the shirt and swung him to a door. She told us all that she doesn’t want to have us’. When [E] was asked if he wanted to say anything more, he stared straight ahead and said ‘that’s all!’.”
This conduct contrasted markedly with the children’s behaviour with the mother before they saw the father. The Family Consultant reported:
When observed with their mother, the children were the most relaxed and carefree than had previously been observed by the Family Consultant. On the other occasion for the Child Responsive Program (on 16 August 2010) and for the first Family Report (on 23 March 2011), they had been brought into the court by their father and had not seen their mother for some significant time. On this occasion, they had spent school holiday time with their mother in Melbourne. Their presentation and responses were quite different. Their loyalty to and preference to their father remained a strong theme but they seemed able to express affection for their mother and accepted her affection in return with obvious enjoyment. In the playroom, [Ms Youseff] dispensed food and advice in an efficient and maternal fashion. The children accepted her approaches and endearments with patience. [C] showed his mother how to play a Wii game, his mother sitting close next to him on the lounge. He obviously enjoyed this role, giggling in delight. [E] snuck up on his mother with a toy snake to spook her, gaining her attention easily. They spent quite a time working on a problem at the train table, [E] trying to resist [D] joining them. [D] also sought her mother’s attention, calling out her name to show her the doll she was playing with and seeking proximity to her.
In her oral evidence the Family Consultant said:
I did not get the sense [the things they complained of] had occurred. They were expected to report.
These considerations lead me to find, on the balance of probabilities, that the mother did not physically abuse the children, as alleged by the father. In summary, the Family Consultant and police officers assessed that they were reporting rehearsed information. There was no independent evidence that the mother subjected any of the children to physical abuse.
As well, the mother convincingly denied specific allegations of physical abuse of the children. In my assessment the truth of her denials was bolstered by the fact that she was willing to admit that she occasionally yells at the children and that she sometimes requires B to help with cleaning the house. She readily described an incident when her elbow accidentally hit D’s nose when she intervened in a physical altercation between two of the children.
There was disturbing independent evidence of B’s views as to where she wishes to live from her school counsellor. The school records contained notes of a conversation between B and the counsellor on 27 October 2011 as follows:
Date 27/10/11 – [B] reports that she has told the court person that she wants to live with her mother. SC observed tears streaming down [B’s] cheeks as she spoke. [B] reports that a couple of weeks ago she felt like she had to tell Dad, so she told her sister [D] who told Dad; since then Dad has been telling her that she can’t take her bike with her if she lives with Mum, and won’t be able to play in the cubbyhouse he is building if she lives with Mum and keeps asking her if she really wants to live with Mum. [B] reports that these conversations are making her really sad; [B] reports she is really sure she wants to live with Mum.
Brainstormed ways to change the topic of conversation with Dad, and happy memories to remember to cheer herself up.”
I have no reason to doubt that the school counsellor accurately reported her conversation with B. The depth of her unhappiness is very disturbing, as is the pressure apparently exerted on her by the father to abandon her desire to live with her mother.
The Family Consultant summarised her assessment of the nature of the children’s relationships with each of their parents as follows in her report of 2 November 2011:
49. [B] was 8 years old when her mother left the home and by all reports was the most distressed. She presents as having a strong attachment to [Ms Youseff]. She seems to have a yearning to be with her mother. She is to begin high school next year and seems somewhat naïve and ill-prepared. Her bedwetting problem needs urgent attention or she may face criticisms from her peers. [C] presented in previous assessments as being completely aligned with his father, to a very concerning degree. He demonstrated a closeness to his mother in this assessment that is, however, unlikely to survive if he does not spend time with her regularly. [D] ‘reported’ on her mother and appears to be caught up in her loyalty towards her father. She too demonstrated a real affection for her mother during this assessment but maintained alignment to her father. [E] was only 4 when his mother left the home. He has spent a significant amount of time in his life without any contact with her and under his father’s influence. He seems to be the child who is struggling the most with the emotional demands placed on him. He clearly has a natural affinity with his father and his primary attachment is definitely to [Mr Youseff]. Of all the children, [E] would face a great deal of distress if separated for long periods of time from his father. Notwithstanding this, [E] also demonstrated at this assessment a warm, affectionate attachment to his mother.”

The above reference to C’s being “completely aligned with his father, to a very concerning degree” was reflected in statements which he made to the Family Consultant in the interviews for the first report. He said: “I am ready to fight for the sake of my father. I’m ready to die for the sake of my father”.
It seems to me that B is yearning for her mother and she is at an age where maternal input into her life will be of great benefit to her. The evidence of the Family Consultant suggests strongly that the relationship between the children and the mother is being repaired and can be fully restored. I am afraid that the father can take little credit for this improvement in the children’s situation for reasons to which I know turn.
There must be serious doubts as to the father’s willingness and ability to facilitate and encourage a close and continuing relationship between the children and the mother. On 15 December 2010, the school principal found it necessary to intervene to remove E from the father’s car so that the children could spend time with the mother. The children did not spend time with the mother in Melbourne between 28 December 2010 and 2 January 2011, despite the existence of orders to that effect. In my view, the father’s excuses for this failure were lame and unconvincing. The father attempted by way of court application to prevent the children from spending time with the mother in Melbourne in both July 2011 and September/October 2011. In my opinion, this history alone gives real cause for concern that the father will fail to facilitate and encourage the children’s relationship with the mother if they continue to live with him.
These concerns are reinforced by the father’s attitude to the mother, which the Family Consultant described as “contempt…which is palpable” and “undisguised contempt”. In her oral evidence the Family Consultant read her notes of comments which the father made about the mother which included:
In my opinion she is not a mother, if I had not seen them come out of her womb I would not believe it.
I brought her from [Country H] with only the clothes on her back.
Counsel for the ICL asked the father for “three positive things about her as a mother” and he said: “she has a good heart, she is forgiving. She was always available to help me. She was a good family woman.” Regrettably, these sentiments did not last long into the father’s cross-examination by counsel for the ICL and the mother. His comments included:
I ask myself a lot whether she loves them …
I always push them to talk to her. They say ‘are you forcing us to talk to her?’ and I say ‘yes I am forcing you…
[B] should be allowed to enjoy her childhood and not have to clean the house…
I think [B] said she wants to live with her mother because she has promised to buy her an iPod touch – [B] told me this…
the head of the police station comes from the same place in [Country G] as her grandparents…
The latter comment was made by the father in the context of his recent arrest for drink-driving and previous occasions when he was pulled over by police officers.
It is of concern that the father tendered in evidence three statements from members of a family named “R” (exhibit 2) which were praiseworthy of his parenting but highly critical of the mother. These people gave no evidence, so their praise of the father’s parenting skills carried no weight. They all seemed to believe that the mother abandoned the children and to accept that she had physically abused and mistreated them. It is hardly advantageous to the children’s relationship with their mother for them to be exposed to people who hold such opinions of her. I have referred already to the willingness of the father’s brother to give evidence which was critical of the mother.
I have no reason to doubt that the mother would facilitate and encourage the children’s relationship with the father if they live with her in Melbourne. It is true that she was unable initially to make any positive comment about the father as a parent but, at a later stage in her oral evidence, she said that he built beds for the children and took them to the zoo. She said also: “I know that I am required to encourage a close and continuing relationship – yes, I will speak of their father, of course not negatively”.
The Family Consultant expressed clear opinions as to the willingness and ability of each of the parties to facilitate and encourage an ongoing relationship between the children and the other parent. She was of the view that “it is very likely that [the mother] would facilitate contact between the children and the father”.
The Family Consultant had no such confidence in the case of the father. She reported:
While [Mr Youseff] is being forced into a position by the court of facilitating contact, it would appear that his attitude and behaviour in relation to the children’s mother has not changed. While [Mr Youseff] argues that he has done everything the court has asked him to, it seems likely that, if the court proceedings were to be finalised, there would be ongoing problems with contact.
The Family Consultant further expressed these views:
51. If the children remain in their father’s care, however, it is extremely unlikely that the will have any ongoing relationship with their mother or her family. Even if [Mr Youseff] does comply with orders and continues to send the children to Melbourne, there is a high likelihood that that might only be the result of contravention orders and further applications to this court by [Ms Youseff]. Further applications are likely to bring with them further assessments and further interviews with the children which should be avoided if at all possible. If the children remain living with their father they will grow up with a distorted, negative view of their mother that is based on their father’s attitudes towards her. Additionally, at various developmental stages in their lives they are likely to struggle with the lack of a relationship with their mother. As reported previously, there are many possible long term consequences of this including poor self-esteem, disturbed and compromised interpersonal functioning, poor and distorted cognitive processing and other behavioural problems.
I agree with the Family Consultant’s pessimistic assessment of the prospect that the children’s relationship with their mother will survive if they continue to live with the father. I accept her evidence as to the probable serious consequences for their emotional stability and development in those circumstances.
There is no doubt that a change in residence would involve very substantial adjustments on the part of the children. The mother was fully aware that the children would miss their father and that “there may be problems”. She said that she would seek her caseworker’s assistance to arrange counselling for the children. The Family Consultant was of the view that the mother has a realistic appreciation of the difficulties which the children will face in adjusting to a change in residence. I, too, formed the view that the mother appreciates the difficulties which she and the children will face and has turned her mind appropriately to potential solutions.
A move to the primary care of the mother would fulfil a strongly held wish on the part of B. The same cannot be said, however, in the case of the other three children.
The Family Consultant was acutely conscious of the risks to the children of a change of residence. She identified these risks as follows:
If the court were to order a reversal of residence and for the children to live with their mother, there would be many risks. There would be a risk of the children being caught up in the father’s emotional reaction to such an order. The children may face ongoing pressure from their father to accede to his version of events and they may feel very sorry for him. The children are likely to blame their mother for their immediate emotional trauma. There is a also a risk that the children may attempt to run away from their mother and return to their father. They may experience depression and, in the worst case scenario, may attempt to self harm. [Ms Youseff] would need to ensure that the children had access to supportive counselling as they would probably find it very difficult to adjust.
Nonetheless, the Family Consultant ultimately recommended a change in primary residence. As noted, the mother expressed a clear willingness to arrange for counselling and other professional support for them in these circumstances.
The Family Consultant also acknowledged that the children may suffer anxiety in having to commence attending new schools although, she acknowledged that they have formed appropriate peer relationships at K School. The Family Consultant also acknowledged that the children will miss their extended paternal family, although a move to Melbourne would allow them to form relationships with maternal relatives.
I appreciate that the children have a stable life in Sydney. They are closely involved with the community at a F Religion monastery and the father has established friendships with these church members and the parents of children at K School.
The mother now has the benefit of stable accommodation in Melbourne through the auspices of her church. She said that her relatives in Melbourne have eight children, ranging in age from 18 years to babyhood. Her unchallenged evidence was that her children have met with those of her relatives and that they seemed “happy”.
The mother’s caseworker gave evidence of personal gains which she has made since her move to Melbourne. In her affidavit sworn on 9 November 2011 Ms N offered these opinions:
17. When I first met [Ms Youseff] she presented as deeply distressed and required the close assistance of her family members to help her attend appointments at our service and other service providers. She was frequently tearful in my presence and found it difficult to discuss her situation with me. [Ms Youseff] also demonstrated a lack of understanding of her rights as a resident of Australia and as a woman in this country. She had little or no understanding of the community and social services that were there to assist her.
18. I am pleased to write in this affidavit that [Ms Youseff] now presents as a much more confident woman and participates much more in her wider community. Since I have been working as her case manager she has become an Australian citizen. She has attended a driver education program and now holds a drivers licence. She has obtained a ‘working with children’ card and is employed by a social enterprise called “[S Pty Ltd]’. In addition she has completed a diploma in beauty therapy at the [T College].”
This evidence further undermines the father’s assertion that the mother chose to remain in Melbourne after a holiday and effectively abandoned the children. It defies logic that she would present to Ms N in this state if the father’s evidence of the circumstances was correct. Ms N’s evidence also tends to corroborate the mother’s account of the father’s treatment of her.
Ms N also deposed that she has observed an improvement in the mother’s English and that she has mastered the use of Melbourne’s public transport system. Ms N said that she is willing and able to arrange support for the mother in the parenting of her children and for therapeutic intervention, in the event of a change of residence.
As I indicated, I consider that there is a very significant impairment in the father’s parental capacity in terms of his attitude to the mother and lack of insight into the need for the children to have a proper relationship with her. In my view, there are also concerns as to the father’s appropriateness as a role model for the children in some respects.
As noted, the father recently committed a drink-driving offence. Disturbingly, all four children were in his car at the time. The COPS entry for 21 June 2011 stated, inter alia:
the accused was very uncooperative while in police custody as he continued to argue with police when being informed of required information. The accused refused to sign licence suspension notice…after being asked a number of times
In my view, the father’s conduction on this occasion was both highly irresponsible and contemptuous of the law.
The Family Consultant also formed the view that the father is contemptuous the law and lawyers. In her oral evidence she related these comments which the father made during his interviews with her:
Terrible law in Australia. I don’t trust lawyers they ruin my life. I cannot trust any lawyer in Australia. The woman takes everything that’s why it is not fair in Australia. For a man like me to work hard and she takes it all.
The father said in cross-examination: “I do not like the way lawyers treat me”. It was necessary for one of his previous solicitors to have police officers remove the father from his premises after an argument. I have a real concern that the father fails to fulfil the obligation of a parent to teach children to respect the law.
The Family Consultant reported concerns that the father allowed the children to read her first report and that he instructed them not to display affection to the mother during the report interviews. The father denied that he gave the children the first Family Report but said, unconvincingly in my view, “the children could have found [it] in the garage”. The Family Consultant was particularly concerned that the children read this report and were to be re-interviewed for an update. I am inclined to the view that the father gave the children the Family Report in an attempt to pressurise them to take his part in the dispute between the parents.
In the course of the interviews for the first report, the Family Consultant asked E to say hello to his mother. He said “my Dad said not to say hello. Not to hug her or kiss her. I am not”. He then added: “my Dad said not to say hello. If I do, I will go to live with her. I want to stay with my Dad.”
The Family Consultant noted that, when the father collected the children to depart the court premises, E took him aside and tried to have a private conversation. She reported: “[Mr Youseff] seemed uncomfortable, so [E] pulled his father’s arm to make him come down to his level saying ‘Mum asked [B/D] to hug and kiss her. But she didn’t!” She explained that she wrote “[B/D]” in the report because she did not hear the name clearly but there was no doubt that E made this comment.
In my view, the father’s denial that he gave the children any instructions to refrain from speaking with or showing affection to the mother during the interviews for the first Family Report were most unconvincing. He maintained that they may have “misunderstood” some comments which he had made but, in my view, it is likely that he did instruct the children to maintain a distance from their mother in order to bolster his case.
The Family Consultant made these observations:
[Mr Youseff’s] blatant instructions to the children as reported by [E] are very disturbing as it suggests very clearly that [Mr Youseff] is willing to manipulate the children’s feelings and perceptions to meet his own needs. The children believe that showing their mother affection is a betrayal to their father. It seems unlikely that [Mr Youseff’s] willingness or ability to facilitate a relationship between the children and their mother would change at any point in the future, despite court orders.
The contents of the second report and the father’s history of attempts to sabotage the children’s time with their mother during 2011 demonstrate that the Family Consultant was correct in her prediction.
It seems that the father is entirely capable of meeting the children’s physical needs. They are neatly attired and well mannered at school and presented in the same way to the Family Consultant. The mother acknowledged that the children were neatly dressed when she first saw them at their school some months after the separation.

Conclusion

There is no easy solution to the difficulties faced by these children. Regrettably, the father has proved incapable of ameliorating his negative attitude to the mother and supporting the children’s relationship with her. On several occasions during his oral evidence he said words to the effect “the children need us both”. The reality, however, is that his actions indicate clearly that he fails to understand or acknowledge the children’s need for a sound and healthy relationship with their mother.
Nothing in the evidence gave me any basis to conclude that this situation will improve in the future. In fact, I agree with the Family Consultant that the father is likely to become more blatantly obstructive of the children’s relationship with their mother when these proceedings are at an end. The Family Consultant clearly enunciated the serious consequences which will flow to the children if there is no change to these circumstances.
There is no question that a change in residence will present significant challenges to both the mother and the children. On balance, however, I reach the conclusion that this step must be taken in the interests of the children’s medium and long-term future. I accept entirely that they will suffer varying degrees of loss and sadness upon being separated from their father. It seems to me, however, that the mother has succeeded in rebuilding the mother/child relationships in limited time periods and under difficult circumstances. She has support available from her family and caseworker. She understands the difficulties which lie ahead of her and the children.
Ultimately, I conclude that the children’s best wishes do not permit the court to stand by and allow the present situation to continue and place the children at risk of the serious consequences predicted by the Family Consultant. For these reasons, I will make orders substantially in the terms proposed by the ICL.

I certify that the preceding ninety six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 23 December 2011.

Associate:

Date: 23 December 2011

[2011] FamCA 996

Key Legal Topics

Areas of Law

Family Law

Evidence

Civil Procedure

Legal Concepts

Procedural Fairness

Jurisdiction

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