Zahir & Yulay
[2022] FedCFamC2F 993
Federal Circuit and Family Court of Australia
(DIVISION 2)
Zahir & Yulay [2022] FedCFamC2F 993
File number(s): CAC 202 of 2013 Judgment of: JUDGE W J NEVILLE Date of judgment: 29 July 2022 Catchwords: FAMILY LAW – Parenting – long running litigation where proceedings were discontinued in 2014 and re-filed in 2020 – where the Father left Australia in 2014 with no explanation and has only seen the children on one occasion since – where eldest child opposes any contact with the Father and orders were made by consent for her to spend time with him in accordance with her wishes – final orders sought are only in relation to the youngest child, who has no memory of the Father – Father has displayed volatile and abusive behaviour towards the Mother, the Mother’s family, the ICL and the Court – where the Mother and the eldest child are fearful of the Father – where the Father’s volatile behaviour and conduct towards others is of concern to the Court – where there is a risk that commencing time between the Father and younger child could progress poorly and re-traumatise the Mother and eldest child – limited evidence that there is any benefit to the child in commencing time with the Father – where children are doing exceptionally well with the Mother and there are no risk factors associated with the Mother – where it is in the best interest of the children that orders are made as sought by the Mother, and supported by the ICL, for no time with the Father, removal of the children from the watchlist and a 2 year injunction preventing the Father from contacting the Mother and children. Legislation: Family Law Act 1975 (Cth) ss 60CC, 68B Cases cited: AMS v AIF (1999) CLR 160
Collu & Rinaldo [2010] FamCAFC 53
Johnson & Page (2007) FLC 93-344
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) 41 Fam LR 483
Moose & Moose [2008] FLC 93-375
Sigley v Evor (2011) 44 Fam LR 439
Slater v Light (2013) 48 Fam LR 573
Division: Division 2 Family Law Number of paragraphs: 114 Date of last submission/s: 19 April 2022 Date of hearing: 3 and 4 March 2022 Place: Canberra Counsel for Applicant: Mr G Howard Lawyer for Applicant: Robinson + McGuiness Counsel for Respondent: Ms M Davis Lawyer for Respondent: Legal Aid ACT Counsel for Independent Children’s Lawyer: Mr J Haddock Independent Children’s Lawyer: Boland Legal ORDERS
CAC 202 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ZAHIR
ApplicantAND: MS YULAY
RespondentAND: INDEPENDENT CHILREN’S LAWYER
order made by:
JUDGE W J NEVILLE
DATE OF ORDER:
29 July 2022
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.The Mother have sole parental responsibility for X (born in 2005) and Y (born in 2012) (‘the children’).
2.The children live with the Mother.
3.The children spend time with the Father in accordance with their wishes.
4.An injunction pursuant to section 68B of the Family Law Act 1975 issue for 2 years from the date of these Orders, restraining the Father from contacting, attempting to contact, locating or attempting to locate or otherwise approaching the Mother or any of the children.
5.That forthwith the Australian Federal Police, their agents and servants remove X (born in 2005) and Y (born in 2012) from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Zahir & Yulay has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
There are two children of this relationship – now almost 17 year old X (born in 2005), and almost 10 year old Y (born in 2012). The parents are Country B nationals. After living in the United Kingdom for some years, and with semi-regular return visits to Country B, the parents relocated to Australia in 2010. The parties separated in May 2012 shortly before Y was born.
The Applicant Father originally sought parenting Orders in relation to both of his daughters. At the trial, in part because of her age as well as her steadfast opposition to having anything to do with him, the Applicant abandoned any Orders sought regarding X, other than to confirm that she should spend time with her Father simply in accordance with her wishes. However, this did not otherwise or completely remove X’s “presence” (so to speak), and certainly not her importance, to the Court’s framing of Orders regarding Y. Briefly this was because: X consistently averred that her Father indecently assaulted her during the maternal Grandfather’s funeral in Country B in 2017. The Father vehemently denies this claim. Nonetheless, to a significant degree, this incident cast something of a spell over large parts of the final hearing because of the impact of it upon X – and beyond.
Not only because of X’s vehemence and insistence about the 2017 incident she alleges against her Father (the incident is recorded in many places including in the Family Report noted later in these reasons), but also because of her keenly felt protective attitude towards her younger sister, Y, X’s “views” relevantly assumed quite some significance at the trial.
A couple of other matters of moment can and should be noted quickly.
First, the Father last spent time with the children in 2014 before leaving Australia to return to Country B for some years. Obviously, Y was a very young child at that time (2015) when the Father returned to Country B. He remained in his native country until October 2019. Therefore, the Father was absent from the children’s lives for 5 years. It is accepted that Y has no recollection of her Father, and obviously no relationship with him at all. The central question in this matter is whether it is in Y’s best interests to seek or to attempt to commence (and perhaps build) a relationship with her Father.
Secondly, in his oral evidence, the Father plainly and bluntly stated that if he was not permitted to commence spending time with Y, he would simply return to Country B and [continue to] have nothing to do with his daughters.
Thirdly, the nature and characterisation of the Father’s interactions with the Mother over many years further coloured the utterly strained parental relationship.[1] The Mother said that her dealings with the Father were invariably caustic and abusive. The Father regularly asserted that his correspondence was simply “factual”, but otherwise rejected the Mother’s contentions about his dealings with her – during and after their relationship ended. There has effectively been no communication between the parents since 2016.
[1] The Court had earlier made an Order under s.102NA Family Law Act 1975 (Cth) (“the Act”) for the Father to secure legal representation. At the trial, he was represented by very experienced Counsel, after forcing his previous lawyer under s.102NA to withdraw. On one specific issue relating to an airport “watch-list” Order, the Father made his own submissions, noted below.
Fourthly, the Mother re-married in 2013. Her Husband, Mr Yulay, lives in the Country C. He has not been successful in obtaining a relevant visa for Australia. The Mother and Mr Yulay have a daughter, D, born in 2018.
The Father made a number of allegations against the Mother’s Husband. In my view, little turns on them. I have no doubt that the Mother has, and will continue, to look after and act protectively towards her children.
The parties ultimately agreed that the Mother should have an Order in her favour for sole parental responsibility.[2] The Mother ran a “no contact” case against the Father. As noted earlier, the Father seeks to attempt to commence some relationship with Y who does not know him at all.
[2] Among many places, see Transcript at pp.98, and 103 – 104.
The Independent Children’s Lawyer (“the ICL”) supported the Mother’s case.
For the reasons that follow, and not without some difficulty, in my view, it is not in Y’s best interests for her to attempt to commence a relationship with her Father. Put shortly, the evidence of both parties quite strongly highlights a significant number of risks in even attempting to start a relationship between Father and daughter. The degree of instability and unreliability plainly on display here, as well as the Father’s volatility, firmly bring to the fore the Court’s protective responsibilities towards Y, which preclude any time with her Father. Of course, there is nothing to prevent either or both of the girls, when older, from contacting their Father. The Orders sought by the Mother, supported by the ICL, should be made.
Applicant’s Orders sought
The Applicant Father’s Orders sought were filed on 2nd March 2022; they were as follows (emphasis in original):
THAT UNTIL FURTHER ORDER:
Adjournment
1.That the two-day hearing of 3 March 2022 and 4 March 2022 be adjourned to enable the father to file a further affidavit to particularise his current situation and plans for the future including his relationship with his children.
Family Therapy
2.That the father and the child, [Y] born [in] 2012 engage in family therapy via an accredited psychologist to be agreed between the parties with time to progress subject to the psychologists’ reasonable recommendations as to:
a.Any parenting courses or program for the father to attend;
b.[Y]’s progression and wishes to be introduced to the father;
c.Any individual counselling to be engaged in by the father or [Y].
3.That the child, [X] be invited to attend should she wish to do so.
4.That family therapy occur no less than bi-monthly, unless otherwise recommended by the treating psychologist for a minimum period of 6 months;
Supervised Time
5.That 6 months from the start of family therapy, and subject to the above provisions, time to commence on a supervised basis to be conducted through [E Contact Service] for a period of 30 minutes on Saturday each alternate weekend;
6.That after an additional 6 months, and subject to the family therapy provisions and [Y]’s progress, time to re-evaluated via a Family Dispute Resolution Conference with time to be as agreed between the parties.
7.That within 2 weeks of the date of these orders, the parties engage [E Contact Service] to enquire about the available appointment and sign all forms and documents necessary to apply to be on the waiting list.
a.Should the mother refuse to sign all documents and do all acts necessary to engage [E Contact Service] for supervised time, that the court make an order in accordance with 106A of the Family Law Act 1975 for the Independent Children’s Lawyer to sign all documents and do all acts necessary to engage [E Contact Service]’s waiting list and available times for appointments.
Injunctions
8.That pursuant to Section 60B of the Act, the mother and father are hereby restrained from:
a.Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party with or in the presence or hearing of [X] and [Y] or permitting any other person to do so; and
b.Discussing these proceedings or the contents of any documents filed or intended for us in these proceedings to, with or in the presence or hearing of [X] and [Y] and from permitting any other person to do so.
9.Until further Order or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975 [MS YULAY] , born [in] 1978, her servants and/or agents be and are hereby restrained by injection from removing or attempting to remove or causing or permitting the removal of said children, [X], born [in] 2005 and [Y] born [in] 2012, from the Commonwealth of Australia;
10.AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the names of the said children on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until they attain the age of 18 respectively, or until the Court Orders its removal, or with the consent of the parties.
Respondent’s Orders sought
The Respondent Mother’s Orders sought were contained in the Amended Response filed 10th November 2021; they were as follows (emphasis in original):
1.That the Mother have sole parental responsibility for the children [X] (born [in] 2005) and [Y] (born [in] 2012) (“the children”).2.That the children live with the Mother.3.That the children spend time with the Father as agreed between the parties.1.That the Applicant Father’s initiating application of 26 February 2020 be dismissed pursuant to the principles in Rice & Asplund.
2.That forthwith the Australian Federal Police, their agents and servants remove [X] (born [in] 2005) and [Y] (born [in] 2012) from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
IN THE ALTERNATIVE
1.That the Respondent Mother (‘the Mother’) have sole parental responsibility for [X] (born [in] 2005) and [Y] (born [in] 2012) (“the children”).
2. That the children live with the Mother.
4. That an injunction pursuant to section 68B of the Family Law Act 1975 issue restraining the Applicant Father from contacting, attempting to contact, locating or attempting to locate or otherwise approaching the Mother or any of the children.
5. That forthwith the Australian Federal Police, their agents and servants remove [X] (born [in] 2005) and [Y] (born [in] 2012) from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
Independent Children’s Lawyer’s Orders sought
The Independent Childrens Lawyer did not provide a Minute of Orders sought prior to the Hearing. Her submissions, post the final hearing, make plain the support for the Mother’s Orders in relation to Y and that she not be introduced to her Father, and in turn, she should not spend any time with him.
Oral evidence of the Father
The sometimes tense and combative evidence of the Father was as follows.
Subject to what is said shortly, the Father regularly (if not almost solely) viewed all aspects of this parenting contest through a lens where (a) the ICL was racist and biased against him (among many other florid accusations, which included allegations of criminality, and that the ICL and the Mother’s lawyer may be in a relationship that goes beyond “professional”), (b) the Court was similarly discriminatory towards him and likewise racist, and (c) the Mother was completely manipulative and hostile towards him having any relationship with the children, as well as being a compulsive liar. All of these matters are recorded in various emails sent by the Father to the ICL and/or to the Court, which were later tendered by the Mother. A number of these matters are also contained (to various and varying degrees) in earlier correspondence to the Mother and/or directed to members of her family. Copies of that correspondence is attached to the Mother’s Affidavits. Details are set out below.[3]
[3] All references, unless otherwise noted, are taken from the Transcript, dated 3rd and 4th March 2022. References will be “t” followed by the relevant page number(s).
In his evidence in chief, the Father said that his [current] intention was to continue to live in Australia. However, he said that if the Court’s Orders prevented or precluded him from spending any time with Y he would consider relocating or returning to Country B.[4]
[4] T 29.
The Father confirmed that his hope was for him and Y to participate in some form of family therapy to help transition towards establishing a relationship between them. The Father also said that if the family therapist confirmed that Y was distressed at the prospect of meeting him he would generally (emphasis added) rely upon the advice of the family therapist.[5] What he meant by “generally” was rather unclear.
[5] T 30.
In cross-examination from Counsel for the Mother there was prolonged and significant focus upon the Father’s correspondence with the Mother and her family, and also with the Court, and his contentions in relation to the allegedly antagonistic and racist attitudes of the ICL and the Court towards him.
The Father said that his interest in relation to Y aligned with what he considered to be the best interests of his daughter. He said he would consider any advice that was given by any relevant professional; he would review it and make a decision based on that advice. It was not clear exactly what this meant although it was explored at some length. For example, he intimated that he might simply follow that advice but also said that he might ultimately take legal action to challenge any adverse Orders – as he is entitled to do.
The first document tendered in the course of the Father’s cross-examination was an email from the Father to the ICL dated 1st March 2021. In that email he referred to the Mother as “a professional liar.” In the same email the Father stated that he objected to any possibility that the Mother would be allowed to speak to or with any family therapist who was being proposed to assist with family therapy. He sought to clarify his position to the effect that his understanding was the therapy was for the children and himself, which, by definition, did not involve the Mother “at that stage”. He was concerned that if the Mother was involved this could “skew” the process because she would inevitably introduce things that were not “necessarily true”.[6]
[6] T 39.
The Father maintained the view that a range of matters set out in the Mother’s trial Affidavits (and earlier Affidavits) were lies.
The Father was taken to a number of propositions or claims that he made in his Affidavit of 25 February 2022. At paragraph 29 of that Affidavit the Father deposed; “[the Mother’s] need is to feel [0r be] married and have her children with her for the purposes of the discounts and benefits she receives from government services. She thinks I am a threat to her continuing to get that.”[7]
[7] T 40 – 41. See the Father’s Affidavit, filed 25th February 2022, at par.29.
The Father also claimed in his Affidavit and confirmed in his oral evidence that he believed the Mother to be married to a criminal. He said he based this upon documentation that he had seen regarding an assault by Mr Yulay on the Mother. The Father confirmed however that he was not present for any of the assaults alleged either in Country B or the Country C.[8]
[8] T 42.
Next there was some brief discussion about the Mother’s and Father’s relationship when they were married. In short, the Father stated that “we didn’t really have a marriage” and because the Mother allegedly would not agree to the dissolution of the marriage “there was nothing to talk about” between them. He confirmed that there was no emotional connection to the Mother during the relationship. He confirmed that he had no love or desire to be with her.[9]
[9] T 44 - 45.
There was an extended discussion regarding various correspondence between the Father and the Mother’s family in Country B. On its face it was significantly derogatory of the Mother and her family, not least his reference in this correspondence to the Mother’s Father that the Mother was “mentally retarded”. In my view it is not crucially relevant to canvass in detail this correspondence that was discussed with the Father at some length during his cross-examination.[10]
[10] See T 46 – 53.
There is also a reference in this correspondence to the Mother being seen in Canberra “as a cheap prostitute.”[11]
[11] T 51.
Later in his cross-examination the Father said that these comments were, he acknowledged, hurtful to and disparaging of the Mother but that he no longer held these views. He also said that this correspondence was during a time when the parties were fighting particularly during the 5 year period where he was absent from Australia.[12]
[12] Among other places see T 57 – 58.
There was also significant discussion about a series of emails and general correspondence which, on its face, indicates that the Father has been providing information to the children about his adverse views of the Mother (perhaps now historical) and equally about the allegations against him raised in the litigation. At a little length, the Father said that it was his intention to make this information available to the children when they were older but that he had not in fact provided it to them now.[13] The Father confirmed however that he believes the Mother is preventing him having a relationship with the children.[14]
[13] T 59 – 60; see also T 61 – 62.
[14] T 61.
The Father confirmed that since his return to Australia towards the end of 2019, he has not applied to the Child Support Agency for any assessment to be undertaken.[15]
[15] T 64.
Throughout his evidence, the Father said that any of the apparently rude or disrespectful comments directed towards the Mother were not intended to be hurtful; he was simply providing ‘factual information.”[16]
[16] T 65.
In relation to his contention that there should be an Airport Watchlist Order for the children and that it should prevent them from leaving Australia until they are both 18 years old, his basic position was that everywhere was dangerous other than Australia, and that the Mother could not be relied upon relevantly to protect the children outside Australia.[17] For my part, there was an obvious element of “tit for tat” here. For example, the Father said that the Mother accused him of sexual assault against the elder daughter, X, but which she did not report to the police. The logical inference was that because of the actions of the Mother, the Father was seeking to pre-emptively protect the children from any other risks from which the Mother would allegedly not protect them.
[17] T 66 – 67.
Not infrequently, the Father denied statements or propositions that were plainly made in correspondence sent by him. For example, in paragraph 87 of his trial Affidavit the Father stated: “the Mother is the reason I didn’t have a relationship with the children. She is preventing me from having a relationship.” Yet in his oral evidence, he said that his email never said this; plainly it did, but again he stated that these were emails that were sent when the couple were “fighting.”
Next was an extended discussion about the Father’s regular contest with the ICL. He confirmed that in email correspondence he accused the ICL of “criminal behaviour” and racism. In an email dated 16th August 2021 (which came to light in the context of the Father’s Application to discharge the ICL in September 2021), in paragraphs 7 and 19 the Father stated:
I suspect collusion between her [the ICL] and [Ms F], the Mother’s lawyer. I have suspicions that [the ICL] and [Ms F] are in a romantic relationship, and this is true. There will [be] present a conflict of interest.
… During the Court Hearing on 13 May, I observed that the ICL was looking at the Mother’s lawyer, [Ms F], in an adoring way, that I have suspicion their relationship goes beyond professional.
The Father also contended that the ICL was rude and disrespectful to him and to his “culture and my race.” He said he stood by his recusal Application as being accurate.[18] This then led to the Father contending that, in effect, his recusal Application against the ICL was doomed to fail because of the Court’s basic bias against the Father. He contended, quite forcefully, that the Court had not treated him well and had continuously put stumbling blocks in his way.[19] The Father maintained that he felt regularly as being treated disrespectfully by the Court; he stated that “there are racists and there are white supremacists all over the place.”[20] He maintained that any such comments, for example, against the ICL were not disrespectful because he was simply stating matters of fact.[21]
[18] T 70 – 71.
[19] Among other places see T 72.
[20] T 72; T 75.
[21] T 77.
The Father’s cross examination continued, as follows, by Counsel for the ICL.
The first area of interest for the ICL related to the Father’s assessment of his respective strengths and weaknesses as a parent, and those of the Mother. In this regard it was noted that the Father had effectively not been engaged as a parent since he went to Country B in 2014. His main focus on his attributes as a parent related to his ability to take his children out for various experiences. In the circumstances of not having engaged with either of his children since 2014 it is unsurprising that his comments and self-reflection were somewhat limited. Indeed, he commented that not providing any child support between 2017 and 2022 was not a weakness.[22]
[22] T 84 – 85.
In relation to the Mother’s capacities, and similar, as a parent the Father continued to focus significantly upon an incident in the Country C between the Mother and her Husband in 2015. That incident, noted below was accepted by the Mother and her husband as being an unfortunate and surprising incident where, inadvertently, the husband struck the Mother while he was waving his arms around. In the Father’s view, the Mother’s alleged failure to have her Husband relevantly charged, or at least reported to a range of authorities, showed a significant lack of judgment and it was, he said, “more severe than a weakness”.[23]
[23] T 85.
Next, when it was put to the Father that X was doing extremely well at school he simply responded by saying that she always did well at school. He also said that he did not doubt that “the Mother had done well” in looking after X; he did not dispute this.
After a little effort, the Father acknowledged that the Mother had done all of the parenting since 2014 without any assistance, input or other support from the Father. Likewise, he confirmed that the Mother takes care of both children and that the children have a “quite beautiful relationship with her” based in particular upon the interactions reported by the family consultant.
The Father maintained that at every opportunity the Mother has spoken badly about him to X but in this regard he was unable to readily acknowledge that there was no instance of any such disparagement recorded by the family consultant in her discussions with both of the children.[24]
[24] T 88.
When asked about the possible or likely impact upon the Mother of her reading the Father’s affidavit, which disparages her at significant length, the Father simply said that he has no “hindsight” on those matters and was simply stating facts.[25]
[25] T 90 – 91.
The Father said that he had now “moved on”, as had the Mother, regarding the long history of matters in contest between them. At the same time he said he was still trying to manage his emotions. As a comment only at this stage, I am not as sure as the Father is that he has “moved on” as much as he claims. Perhaps even more curiously the Father maintained that while he accepted, up to a point, that the Mother may have been owed an apology for a range of things that were said about her, he said he also needed an apology from the Mother to him. He said; “we both need to acknowledge where we have been at fault.” He was particularly aggrieved by what he claimed the Mother had said about him, namely that he was a rapist. In the documents before the Court there is no such claim.[26]
[26] T 93.
The Father confirmed that he has sought some counselling and general assistance in relation to the parenting dispute. He said he seeks that assistance “through my church.” He also said that for the five years or so that he was in Country B it was the main thing that he did, namely, to seek counselling and support.
On the first of a number of occasions, the Father’s Counsel confirmed that an Order for Sole Parental Responsibility was accepted by the Father as being proper to make in the Mother’s favour.[27] This said, there were some quite confusing exchanges with the Father where, notwithstanding the concession regarding the Sole Parental Responsibility Order in the Mother’s favour, he said on more than one occasion that the Mother could not be trusted to make long-term decisions for both of the girls. This was also in circumstances where, as noted earlier, the Mother had effectively been a single parent with Sole Parental Responsibility since the Father left Australia to return to Country B in 2014.[28] In this regard, it is important to note the following significant matters from the Father’s evidence; it is best to consider the Father’s responses in his own words:[29]
And this has already been touched on by Mr Haddock earlier, but wouldn’t it follow from that that if an independent assessor, the psychologist – the family consultant – assesses the girls to be really well, that that would almost inevitably follow that the decisions that the mother has made for their care and welfare generally has been really good?‑‑‑That is a really dangerous position to even think about it because people are murdered every day. I’m sure, as a judge, you have actually witnessed people being – who – murderers or – probably, you’ve handled with that were – that’s previously – these things could be said about them. But there were also incidents of foul play, setting risk factors, having broken lights. There is no probability – there’s no correlation between a child’s current performance and the risk factors that surround that child. That says that based on this, those risk factors are eliminated. They are not. Those risk factors are extreme. They are significant and a child who is a minor who does not rights of her own – I believe, that if a child was assaulted, she – or if an adult was assaulted, the adult can take a decision as to whether to involve the police or not, but a child needs the mother to do that and when in all these situations, the child is not protected then it’s a significant risk that the courts should look at. It has no correlation whatsoever to school performance or anything that we’re talking about.
And what responsibility did you have or did you show by going to [Country B] for five years and leaving the children with their mother?‑‑‑In the family report of 2020, if the – can I check the paragraph?
Well, I would be grateful if you could just tell me what you could remember and then if we need to, we can check it?‑‑‑Yes. In the family reports of 2020, [Ms Yulay] did mention to the family consultant then that they’re at a point where – I forgot the technical term, but when I got – [X] was a – sorry, [Y] was a baby then – at a point where [Y] was a baby, the exchange process where she will bring her to me was a difficult process and it wasn’t in the interests of [Y], and my action as a father at that time was to decide that it was not in the interests of [Y] for even that exchange to happen. So she was with the mother. The other aspect of what I have done was that I personally believe that being alive and being well, being in that good mental state was in the interests of the children better than me being in the position where I, myself, wasn’t okay. It was a risk factor if I wasn’t in the right frame of mind to look after the children. So it was in the best interests of the children at that time. If I am not in a good frame of mind to be a good father, I would not put my children in that risk. So what I did, in 2014, was to go get help for myself so that the children would not be negatively impacted.
So would it be fair to summarise it then that your decision to be absent from the children’s lives for five years was in their best interests because you were attending to your mental health, emotions, etcetera?‑‑‑Yes. It was in their best interests in that – still within that time, we’re still fighting. There was a lot of – the DVO, for example. I was accused of assault. There were every opportunity was being sought to get me. Exposure, interactions between [people of colour] and police: it’s not good, and but every opportunity was being sought to get me involved in the police one way or the other. I felt that it was in the best interests of the children to cut off that link.
[27] T 98.
[28] T 98 – 99. The Father ultimately accepted however that the girls were doing exceptionally well while having been in the Mother’s sole care since 2014.
[29] See T 100.
The Father also contended that at any and every opportunity the Mother has and/or will get the police involved against him. A little while later however the Father said that this was not the case.[30]
[30] T 101 – 102.
In re-examination, the Father said the only qualification about the Sole Parental Responsibility Order in the Mother’s favour was in relation to the long-term airport Watch List order he sought in relation to the girls.[31]
[31] T 103 – 104.
Oral Evidence of the Mother
The Mother’s evidence, summarised, was as follows.
First, the Mother confirmed that since the Father’s return from Country B to Australia she has had no contact with him at all. Such contact as there has been has only been via lawyers. She confirmed that upon finding about him being back in Australia, she applied unsuccessfully, to the ACT Magistrates Court to obtain a domestic violence Order.[32]
[32] T 110 – 111.
The Mother was quizzed as to why she was seeking an injunction under section 68B of the Act against the Father to restrain him from contacting her or attempting to do so, and attempting to contact the children. Again she confirmed that in the three years or so that the Father had been back in Australia she had had no contact from him, nor had the girls.[33]
[33] T 112.
The Mother accepted that before the Father went to Country B in 2014, he had a somewhat close relationship with X.[34] She said that she agreed with the Order proposed by the Father that X should only spend time with her Father in accordance with her wishes.
[34] T 113.
The Mothers primary concern in relation to any attempted relationship between the Father and Y was expressed in the following terms:[35]
Yes? Okay. Thank you. I don’t have any issue with that. My only issue is my relationship with him and the impact it has on the children. Yes. So if it’s going to impact – looking at all that is going on, yes. If it’s going to have an impact on the children in a negative sense, yes, I think I have – that’s where I have the – my concern. If he’s going to brainwash the kids and if he’s given the opportunity
….
All right. And, so, if all of those things were in place, [Y] would be safe, not able to be brainwashed by her father, and if she were distressed it could be stopped.
What’s the problem with trying that if there’s a possibility of a positive relationship like [Mr Zahir] had with [X] before he left for [Country B]? My worry – main worry is, yes, if he is under supervision it’s meant to be a different thing, and if he’s left alone it’s going to be a different thing…
[35] See T 115 & 117.
The Mother also noted that if the Court Ordered there to be some attempt to introduce Y to her Father that it would be preceded by Y having an opportunity to speak with the family therapist.[36]
[36] T 118.
Again, the Mother confirmed that the incident between her and her Husband in the Country C in 2015 was an accidental circumstance while he was waving his arms around and that neither party considered it to be an assault.[37]
[37] T 120 – 124.
In answer to some questions from Counsel for the ICL, the Mother said that when they were together, while X enjoyed spending time with her Father, for example playing and watching movies, at the same time she said that the Father gets easily agitated and acts upon what was best for him with little thought for or about those around him. She also said that now whenever she hears his name or faces the prospect of some encounter with him she becomes “highly anxious.” Her anxiety is also triggered at the thought or prospect of the Father spending time with the girls.[38] The Mother also said that the Father’s regular sending of emails to her family and others was a cause of regular concern for her. She said that she has sought out some professional assistance for herself as well as seeking assistance for X. She said she was particularly concerned about the prospect of X accompanying Y to meet with the Father out of X’s protective disposition towards her sister, rather than out of X’s own desire to see or spend time with her Father.[39]
[38] T 125.
[39] T 127.
It is convenient here to note that the Mother’s Husband, Mr Yulay was briefly cross-examined from the Country C. I have no difficulty in accepting his evidence which was simply to the effect that he deeply regretted the accidental hitting of his Wife in 2015 and that he apologised to her the following day. He said nothing else was involved and that it was all completely out of character what had happened.[40]
[40] T 131 – 133.
The Family Report
Ms G prepared a Family Report, dated 21st February 2022. This Report became Exhibit FR1. The following parts from it are important for the determination of Orders that are in Y’s best interest.
First, at par.38 of the Report, Ms G listed the issues identified by the Father as follows.
38. [Mr Zahir] identified the following issues:
(a) [Ms Yulay’s] mental health status,
(b) [Ms Yulay]’s allegations of physical, verbal, and sexual abuse,
(c) [Ms Yulay]’s allegations of sexual abuse, of X,
(d) [Ms Yulay]’s perceived “poisoning” of him, to the children,
(e) [Ms Yulay]’s reported false allegations, lies, and “fabrications”,
(f) The reports of violence, in [Ms Yulay]’s current relationship, to which the children have been, reportedly, exposed,
(g) The lack of opportunity to have contact with, or develop a relationship with either of the children.
Then at par.39 of the Report, Ms G noted the following issues identified by the Mother.
39. [Ms Yulay] identified the following issues:
(a) [Mr Zahir]’s alleged history of family violence,
(b) [Mr Zahir]’s alleged history of sexually assaulting X,
(c) [Mr Zahir]’s history of sending defamatory information to members of her family, the children’s school, and the [Country B] community,
(d) [Mr Zahir]’s history of telling “lies”.
At par.40, the Family Consultant listed the relevant issues she identified, which were in addition to those noted by the parties.
40. The Assessor identified the following issues:
(a) All of the above [from each parent],
(b) The acrimonious relationship, between the parents,
(c) [Ms Yulay]’s reported “fear” of [Mr Zahir],
(d) The veracity of the allegations made, by either parent, against the other parent,
(e) The potential for psychological, and emotional harm, to the children, if they are exposed to family violence,
(f) The children’s wishes to participate in a program to re-introduce each of the children, to [Mr Zahir],
(g) [Ms Yulay]’s capacity to manage the emotional impact of [Mr Zahir]’s being permitted to spend time with the children.
Among a number of “curious” matters noted by Ms G, she recorded (at par.43) that the Father did not consider himself to have been married to the Mother. This was because, he said, he did not purchase any ring for her, and that he did not actively participate in the wedding ceremony.
Ms G noted (at par.44) that the Father confirmed that he discontinued earlier proceedings in 2014, and returned to Country B, in order to protect his mental health. She also noted (at par.50) that the Father’s preference was to live and work in Country B. For the moment, he was content to remain in Australia out of concern for the children.
In relation to the Mother, Ms G recorded (at par.56) her as saying that the Father was “abusive and controlling.” At par.61, Ms G noted the Mother saying that all three girls (X, Y and D) have bonded well. The youngest daughter attends day-care while the Mother works as a health care worker.
It is important to record in full Ms G’s comments arising from her interviews with the children (pars.84 – 102).
CHILDREN AND THEIR RELATIONSHIPS
[X] (Subject child, aged 16 years)
84. [X] was interviewed, on 18/01/22, via Zoom. [X] stated that she swapped her first, and second names, when she was young, as she preferred the name, [X], to [X]. [X] presented as articulate, and friendly.
85. [X] stated that she was born in ‘[City H]’, England; however, the family re-located to [Country B], when she was approximately three weeks old. [X] remained living in [Country B], with her grandparents (maternal grandparents), while her mother returned to the United Kingdom (U.K.). [X] reported that the family ([Mr Zahir], [Ms Yulay], and herself), moved to live in Australia, just prior to her fifth birthday. [X] stated that she has returned to [Country B], to visit family, and friends, on two occasions, once for a period of one month, and on the second occasion, for a period of two months.
86. [X] stated that she completed Year 10, at ‘[J School’], ACT, in 2021. She will commence senior studies at ‘[J School’], ACT, in 2022. [X] reported her grades as “good”, although she found it difficult “self-managing”, during lockdown. [X] stated that most of her friends will attend the same college. She has selected the subjects, ‘English Literature’, ‘Mathematics Methods’, ‘Sociology’, ‘Psychology’, and ‘[L Language’] (she has already completed four years of study, in [L Language]). [X] stated that she enjoys “language, particularly grammatical structures”. She hopes to attain an ‘ATAR’ score of 80+. [X] stated that she, and her sister, walk to school, together, commenting that her sister might change to ‘[M School’], ACT, in 2022. The children are collected, from, school, by a friend of her mother.
87. Out of school, [X] reported enjoying reading, writing, playing the ‘Nintendo switch’, and watching ‘Netflix’. She stated that she has her ‘L’ plates, and has been driving to accrue the required number of driving hours, for eligibility to obtain her driver’s licence (eligible in 2022). [X] stated that she is having some driving lessons with a driving instructor.
88. In terms of her home life, [X] stated that she gets on well with her mother, stating, “It has always just been us ([X], [Y], and [Ms Yulay])”. [X] stated that her mother works hard to meet the needs of the family. [X] reported getting on well, with her sister, [Y]. She stated that she also has a baby sister (Half-sister).
89. [X] reported having a good relationship with her younger Stepbrother, ‘[N]’, who lives in The [Country C]. She stated that she has a strong relationship with her stepfather ([Mr Yulay]), who “listens to my rambles”. [X] stated that, at times, it is “easier” to talk to [Mr Yulay], than it is to talk to her mother. She stated her preference to call [Mr Yulay], ‘Dad’. [X] stated that [Mr Yulay] is a “[hospitality worker]”, and reported her enjoyment of spending time, as a family, in The [Country C]. According to [X], in The [Country C], the family visits theme parks, and “travel a lot”. She stated that she, her sister, and her mother, speak frequently, with [Mr Yulay], and [N], via ‘Skype’.
90. [X] recalled [Mr Zahir] as being “short-tempered”, and “yelling at Mum”. She stated that she could hear the arguments, from her room. [X] recalled an incident when “ketchup” was spilt on the floor, and [Mr Zahir] became “very angry”. She stated that her sister “would cry for three days”, when spending time, with [Mr Zahir].
91. [X] stated that [Mr Zahir] did not tell her he was leaving the country; however, she never saw him again. She stated that, while [Mr Zahir] was living in [Country B], [Ms Yulay] spoke little about him, as she did not want to “ruin” [X]’s impression of him ([Mr Zahir]). [X] commented, “He ([Mr Zahir]) was not able to be in our lives, but he wouldn’t leave us alone”. She stated that [Mr Zahir] would Skype her, asking questions, and “talking about ‘Mum’” to her, on her tablet, so communication ceased. [X] stated that her mother also attended her school, related to messages, sent by [Mr Zahir].
92. [X] stated that the last time she saw [Mr Zahir] was in 2018, when an incident occurred, following her grandfather’s (maternal grandfather) funeral, in [Country B]. She reported that she was “called outside”. In the toilets, she was confronted by [Mr Zahir], who spoke to her, “about some cultural thing to become a woman”. She stated that “people stuck close to me” for the remainder of the event.
93. [X] stated that her brain had “forgotten” about situations that had occurred, prior to [Mr Zahir]’s leaving the country. However, in 2019, after she learned that [Mr Zahir] had returned to Australia, “a lot of things came back”. She reported feeling “scared”.
94. When asked, [X] stated that, for now, she does not wish to have a relationship, with [Mr Zahir]. She stated that, in the future, she might consider some interaction “to get closure”, then no further contact. [X] stated that [Mr Zahir] is a “stranger” to [Y], being brought up by her stepfather. She stated that [Y] was “shocked” when she was informed that [Mr Yulay] was not her biological father. [X] stated her impression that [Y] would “not be safe”, to spend time with [Mr Zahir]. She stated that she would accompany [Y], to any meetings with [Mr Zahir], stating, “I wouldn’t feel comfortable”.
[Y] (Subject child aged 9 years)
95. [Y] was interviewed, on 18/01/22, via Zoom. [Y] stated that she is called ‘[Y]’). She presented as a pleasant girl, who participated actively, in her individual interview.
96. [Y] stated that she attends ‘[J School]l’, ACT, which she described as “even worse that the last school, with a lot more bullies, and mean people”. She commented, “A lot of people swear”. Y stated that she will be in Year 4, in 2022. Her favourite subjects are ‘English’, and ‘[O Language’]. She stated that she does not enjoy sport, as she gets “stitches”. [Y] reported that she has friends, both at school, and out of school.
97. At home, [Y] reported that she gets on well with her mother ([Ms Yulay]), stating, “I can talk to her”. [Y] stated; however, that her sister, [X], is her first option to talk to. Of her young Half-sister, [Y] stated, “She loves to be played with”.
98. [Y] stated that she gets on well with her stepfather. She stated that she though he ([Mr Yulay]) was her “read Dad”, she still thinks about him as “Dad”. Y stated that she has not spent time with her Stepbrother “for a while”, although they like to talk together, on video calls.
99. [Y] stated that she does not “know much” about [Mr Zahir]. She stated that she has not seen him “for a long time”, commenting that she has no desire to see him.
100. When asked, [Y] stated that she feels happy, when she is spending time with family, and friends. She reported feeling sad, and “uncomfortable”, when she is alone, or ignored. She stated, “It feels like I am not needed, or included”. She qualified her statement, reporting that this situation might occur at school, but not at home.
101. When asked if she had one wish, what it might be, [Y] began to cry, and stated, “I wish everyone would be happy, and be friends with everybody”. She stated that people cry if no one will play with them, or if nobody likes them.
102. [Y] stated that she has no worries, although she “worries about Court”. She stated that the worst thing that could happen would be being separated from her family, because she “loves them”.
It is equally important to set out in full Ms G’s Evaluation and Recommendations (pars.119 – 145).
EVALUATION
119. This report considers the future care and living arrangements for the subject children (the ‘children’), [X] (‘[X]’), aged 16 years 4 months, and [Y] (‘[Y]’), aged 9 years 4 months. The parents are [Mr Zahir] (the Applicant), and [Ms Yulay] (the Respondent). No other children were born during the relationship. [Ms Yulay] has one child, [D] (born [2018]), born during her marriage to [Mr Yulay] (born [1980]).
120. The Family Assessment was conducted over three sessions, (18/01/22, 19/01/22, and 19/02/22), via Zoom, and phone, to accommodate the availability of all participants. [Mr Zahir]’s individual interview, during the Family Assessment (19/02/22), was delayed, due to his being in [Country B], at the time of the first two sessions, then contracting COVID-19, requiring recovery in his father’s village, in [Country B], without access to internet.
121. At her individual interview, [X] presented as articulate, and friendly. She reported her early childhood history, in [Country B], prior to her moving, with her parents, to live, in Australia, just prior to her fifth birthday. [X] stated that she has returned to [Country B], to visit family, and friends, on two occasions, once for a period of one month, and on the second occasion, for a period of two months.
122. [X] reported that she will commence senior secondary studies at ‘[K School’, ACT, in 2022, with most of her friends. She hopes to attain an ‘ATAR’ score of 80+. [X] reported age appropriate out of school activities, including reading, writing, playing the ‘Nintendo switch’, and watching ‘Netflix’. She stated that she now has her ‘L’ plates.
123. In terms of her home life, and family relationships, [X] stated that she gets on well with her mother, stating, with her sister, [Y], and her young Half-sister sister, as well as having a good relationship with her younger Stepbrother, ‘[N]’, who lives in The [Country C], with her stepfather, [Mr Yulay]. [X] reported having a strong relationship with her stepfather, who “listens to my rambles”, stating her preference to call [Mr Yulay], ‘Dad’. She stated that she, her sister, and her mother, speak frequently, with [Mr Yulay], and [N], via ‘Skype’.
124. [X] recalled [Mr Zahir] as being “short-tempered”, and “yelling at Mum”. She stated that her sister, [Y], “would cry for three days”, when spending time, with [Mr Zahir]. [X] stated that [Mr Zahir] did not tell her he was leaving the country, commenting, “He ([Mr Zahir]) was not able to be in our lives, but he wouldn’t leave us alone”. She stated that [Mr Zahir] would Skype her, asking questions, and “talking about ‘Mum’” to her, on her tablet, so communication, between [X], and [Mr Zahir] was ceased, by [Ms Yulay]. [X] stated that the last time she saw [Mr Zahir] was in 2018, when an incident occurred, following her grandfather’s (maternal grandfather) funeral, in [Country B]. She reported that she was confronted by [Mr Zahir], who spoke to her, “about some cultural thing to become a woman”. She stated that “people stuck close to me” for the remainder of the event. [X] reported feeling “scared” when she learned that [Mr Zahir] had returned to Australia. When asked, [X] stated that, for now, she does not wish to have a relationship, with [Mr Zahir], although, in the future, she might consider some interaction “to get closure”, then no further contact.
125. [Y] attends ‘[J School]’, ACT, where she will be in Year 4, in 2022. [Y] reported that she has friends, both at school, and out of school.
126. At home, [Y] reported that she gets on well with [Ms Yulay], stating, “I can talk to her”, although, she acknowledged, her sister, [X], is her first option to talk to, if she has a problem. Of her young Half-sister, [Y] stated, “She loves to be played with”.
127. [Y] stated that she gets on well with her stepfather. She stated that she thought [Mr Yulay] was her “read Dad”, and still thinks of him as her “Dad”. She reported not spending a lot of time with [N], recently, although they talk together, on video calls.
128. [Y] stated that she does not “know much” about [Mr Zahir]. She stated that she has not seen him “for a long time”, commenting that she has no desire to see him.
129. [Y] stated that she has no worries, although she “worries about Court”. She stated that the worst thing that could happen would be being separated from her family, because she “loves them”.
130. During the observation session with [Ms Yulay], the children appeared to be happy, and relaxed. The interaction, between participants, was appropriate, and suggested that each participant felt comfortable in the presence of the other participants.
131. [Ms Yulay] is the primary carer for the children, due, according to [Mr Zahir], to his withdrawal from Family Court proceedings, in 2014. Post-separation, prior to [Mr Zahir]’s relocating to live in [Country B] (2014), [X] spent time with [Mr Zahir], overnight, from Friday, until the following Monday, on one week, and overnight from Wednesday, until Thursday, on the alternate week. During the same period of time, after an unsuccessful trial of [Y]’s spending a few hours, on the weekend, with [Mr Zahir], face-to-face contact was ceased, between [Mr Zahir], and [Y], with [Mr Zahir] reporting that he did not wish for [Y] to feel distressed, at changeover time.
132. Subsequent to [Mr Zahir]’s re-location to [Country B], contact between him, and the children, was conducted via ‘Skype’, with [Ms Yulay] in attendance, during the calls. [Ms Yulay] stated that she discontinued the calls, due to their content (asking questions about her ([Ms Yulay]’s) life/lifestyle, as well as making defamatory comments about her). [Ms Yulay] claims that [Mr Zahir] sent emails to [X] (denied by [Mr Zahir], who stated that the emails were “forwarded”, by another party), members of her extended family, the [Country B] community, and to the Principal at [X]’s school.
133. There has been no contact, between [Mr Zahir], and the children, since late-2017, when the children attended the funeral of the maternal grandfather, in [Country B]. It is alleged that, during the funeral ceremony, [Mr Zahir] (who, according to [Ms Yulay]) was not invited to the funeral, beckoned [X] to leave the ceremony, then sexually assaulted her, including touching her breasts, and declaring that she was ready for “rites”. A friend of [Ms Yulay], reportedly, informed [Ms Yulay], of the situation, and she ([Ms Yulay]) intervened. [Ms Yulay] stated that she, and the children, were well protected, by family, and friends, until they left [Country B], to return to Australia, therefore, there was no necessity to report the incident to the police, either in [Country B], or in Australia, where the family was safe. According to [Mr Zahir], there is no evidence to support the allegation (which he denies), made by [Ms Yulay], that he sexually assaulted [X]. There are no reports of violence, perpetrated, by [Mr Zahir], towards the children.
134. At the Family Assessment, [Mr Zahir] described his marriage to [Ms Yulay], as “false”, stating that he did not actively participate in the wedding ceremony; however, at times, during the marriage, when he suggested a separation, [Ms Yulay] fell pregnant, with each of their two children. Mr [Zahir] commented that [Ms Yulay]’s falling pregnant with [Mr Yulay]’s child could have been a strategy to ensure the approval of [Mr Yulay]’s spouse visa, to re-locate, to Australia. [Mr Zahir] claims that [Ms Yulay] has “fabricated stories”, and told lies, to support, and justify, her allegations, against him. He stated that no reports have been made to the police, related to domestic violence. In 2013, [Mr Zahir] signed a “without admission” Family Violence Order, for a period of two years.
135. [Mr Zahir] reported his concern that [Ms Yulay] has “poisoned” the children against him, through her lies. He reported concern about [Ms Yulay]’s mental health status, based on information reported to him, that [Ms Yulay]’s relationship with [Mr Yulay], involves family violence, to which, he alleges, the children have been exposed. A report was made to the ‘Department of Foreign Affairs’ (Subpoena, dated 09/11/20), related to an incident of physical assault of [Ms Yulay], by [Mr Yulay], on 01/02/16, that occurred when [Ms Yulay], and the children, were spending time in The [Country C]. According to [Mr Yulay], the assault was accidental, occurring during the course of an argument, between himself, and [Ms Yulay].
136. [Mr Zahir] reports that he returned to Australia, in order to protect his children from “psychological damage”, after receiving on-going reports, about [Ms Yulay]’s abusive relationship, with [Mr Yulay]. [Mr Zahir] is seeking to spend time with the children, and re-develop a relationship with each of the children.
137. [Mr Zahir] has not re-partnered. He lives in [Town M], ACT, and works as a [professional]. He is [a finance professional], by profession. [Mr Zahir] remains in close contact with family members, who live in [Country B]. He reports having a close circle of friends, and involvement with his local church.
138. [Ms Yulay] described [Mr Zahir], as “abusive, and controlling”, during their relationship, and post-separation, reporting that [Mr Zahir]’s abusive behaviour escalated when he was asked to pay child support, for the children. She reported physical, verbal, and sexual abuse, during the marriage, and further abuse, in the form of defamatory emails about her, sent by [Mr Zahir], to family members (including [X]), friends, and [Country B] community members. [Ms Yulay] stated, at the Family Assessment that she feels “terrified”, and “not at peace”, knowing that [Mr Zahir] has returned to live in Australia. She expressed fears for the safety of her children, and has had a security camera installed at the front of her house, the data being accessible by [Mr Yulay] (in The [Country C]), as an extra safety precaution.
139. [Ms Yulay] expresses great concern that [Mr Zahir] wishes to spend time with the children, due to his history of violence, and particularly, the sexual assault of [X]. She expressed her wish that the children have no contact with [Mr Zahir].
140. [Ms Yulay], and the children, live in [Town M], ACT. [Ms Yulay] is a [health care worker], who has worked at the ‘[Employer P]’, [Suburb Q], ACT, for approximately nine years. She reports having a close friendship group, who provide assistance (for example, with school pickups), if required. [Ms Yulay] reports having a good relationship, with extended family members, who live in [Country B], and in other parts of the world.
141. [Ms Yulay] married [Mr Yulay], in 2013. They have a daughter, ‘[D]’, who is three years old. [Mr Yulay] lives in The [Country C], after being deported from Australia, after his visa expired. [Ms Yulay]described [Mr Yulay] as “my friend”. She denied family violence, in the relationship. [Ms Yulay] reports that the children have a strong relationship with [Mr Yulay], and his son, ‘[N]’, speaking, via ‘Skype’ on most days. Prior to the COVID-19 pandemic, [Ms Yulay], and the children, would visit [Mr Yulay], in The [Country C], once, or twice, each year. [Mr Yulay] plans to re-locate, to live in Australia, once he has “spouse” visa approval.
142. At the time of the Family Assessment, each of the children is, reportedly, doing well at school. The children have friends, and present as well cared for. The children appear to be happy, in their present living arrangements. Each child expressed a wish not to have contact with [Mr Zahir], with [X] referring to historical events. Y has not had the opportunity to develop a relationship, with [Mr Zahir]. The impact of the alleged sexual assault of [X], on [Y] (who was present at the event), was not mentioned, during the Family Assessment.
143. Communication between the parents is non-existent. Each parent reports concerns about “lies” told by the other parent that support their own case. There is no trust between the parents, evidenced by their allegations, particularly those of family violence, against each other, although evidence of an incident of family violence, against [Ms Yulay], by [Mr Yulay], has been provided, in the documents. [Mr Zahir] claims to have evidence that the alleged sexual assault, of [X], did not occur. Such evidence would enhance his proposal to be re-introduced to, and develop a relationship, with each of the children. Without concrete evidence (for example, police reports) to support the allegations of each of the parents, about the other parent, it is not possible to ascertain the level of truthfulness, or embellishment/exaggeration of incidents that have, reportedly, occurred in the past.
144. [Ms Yulay] has been the primary carer for the children, since approximately 2011. There has been no contact, between [Mr Zahir], and the children, since 2015, other than at the funeral of the maternal grandfather, in late-2017. Re-introduction of the children, if ordered, to [Mr Zahir] will need to be conducted over an extended period of time, under supervision, with frequent reviews, on the impact of the re-introduction, on each of the children. The opportunity for the children to spend time with [Mr Zahir] could enhance future decisions, made by the children, whether, or not, to continue to have a relationship, with [Mr Zahir].
RECOMMENDATIONS
145. Based on the Family Assessment, and review of documentation related to the matter, available at the time of the Family Assessment, it is respectfully suggested that;
a) [Ms Yulay] has sole parental responsibility for the children,
b) The children live with [Ms Yulay],
c)Contact between [Mr Zahir], and the children, if ordered, by the Court, is introduced in very short sessions (approximately thirty minutes), initially, and under the supervision of an external agent/organization (such as [E Contact Service], ACT), with frequent review, and feedback, on the impact of the re-introduction, of the children, to [Mr Zahir],
d)The children are provided with supportive therapy, to increase their feelings of confidence, and safety, if there is contact, with [Mr Zahir],
e)Neither parent is permitted to make derogatory comments, about the other parent, or the other parent’s partner, to, or in the presence, of the children,
f)The children’s names remain on the airport “watch list”, until they attain an age of eighteen years, unless otherwise ordered by the Court.
g)[Ms Yulay] is offered the opportunity to attend therapy/counselling to address her anxiety, related to the re-introduction of the children, to [Mr Zahir],
Oral Evidence of the Family Consultant
As noted above, the Family Consultant, Ms G, prepared a Report (Exhibit FR1). Ms G’s oral evidence in relation to matters canvassed in it, and in the light of the parties’ evidence, was as follows.
At the outset, it is important to record the following early exchange with Counsel for the ICL:[41]
[Ms G], am I right from your report that, in your interactions with [Mr Zahir], he seemed to have a focus on criticising the mother of the children; have I got that right? [Mr Zahir] was very much focused on protecting the children. The protection was, for the children, mainly with the husband of – of the mother and his fears that the children would be subjected to violence – not at his hands, but would witness violence in that relationship between the mother and the stepfather.
But his view of the mother didn’t appear to be very positive in terms of her ability to be protective from violence; you would agree with that, wouldn’t you? I would agree with that, yes.
Okay. Right. And he seemed to have a pretty negative opinion of the mother generally; is that fair to say? Generally speaking, yes.
Yes. And that seemed to be a pretty firmly-held belief by him? Yes, and it seems to have stretched across a number of years and incidents – or reported incidents, yes.
Almost an entrenched opinion, if I could put it that way; would that be fair? Yes, yes.
[41] T 137.
Ms G confirmed that, from Y’s perspective, her Father is a stranger to her. This necessarily meant the success of building any potential relationship between Father and daughter was going to be heavily influenced by the Mother’s support for that relationship. This exchange was as follows:[42]
[42] T 138 & 139.
Yes. And that’s particularly because of two things, as I understand it, that come out of your report. One is that mum has got that psychological primary carer role for [Y], but also because of the circumstances of this case which mean that the father is a stranger to this particular child? Yes.
Okay. And are you able to say – is it really the case that I take from the report that any relationship that the father might develop with [Y] is only going to be a meaningful relationship if it has got the support of the mother? That – that would be fair to say, yes. They all need to work together, to some extent – or to an extent, yes.
…
Yes. And the way that time between the children – the idea of time between the children and the father and the fear associated with that impacts on the mother has a necessary flow-on effect to the children, correct? I would say so, particularly the younger child.
And that’s right, because [Y] is perhaps of a younger age and is more vulnerable and is more reliant on mum. It has an exponential impact; is that correct? Yes, correct.
Just pardon me one moment, sorry. And, sorry, the other element of that in terms of what we think is the support for the idea of time in a relationship, if we focus on [Y] for a moment, it seems that [X] is quite anxious about the idea of [Y] spending time with the father to the extent that she’s saying, “Look, I would go along, because otherwise I would be uncomfortable.” I’ve got that right? Yes, correct.
Okay. And so the concept of time between the father and [Y] wouldn’t necessarily just have a psychological impact on the mother. It seems that it would also have one on [X]; have I got that right? That – yes. Yes.
Yes. And that psychological impact would be, at least for a period, in a form of worry and anxiety, correct? That would be the case, yes.
And she seems – [X], I have to say, from your report, seems like quite an articulate, intelligent young lady; I’ve got that right? That’s how she presented.
And it seems if she had put quite a lot of thought into this idea and what her worry would be; have I got that right? That impression from your report? Yes, yes.
Then followed these comments regarding the “introduction process”:[43]
Okay, lovely. So you spoke there about what would be needed for reintroduction if it was ordered, and you said that it would need to be conducted over an extended period of time. I’m just interested in understanding, when you use the phrase “extended period of time,” what sort of timeframe are we talking about? Are we talking about a year? More? Less? I would say at least a year, and I do recall putting in the recommendations that it needed to be in very, very short periods of time with very specific reviews to ensure that [Y] in particular was not becoming too distressed and/or had the appropriate supports in place to help her manage that re-introduction.
[43] T 140.
Regarding the possible duration of this process Ms G commented:[44]
Say there are three sessions and there are levels of distress with [Y], for whatever reason. Subject to what the reason is for the distress and the critique of the visits done independently, obviously, by the contact centre, would three visits, for example, be more than sufficient to give someone like your good self sufficient information to say it’s worthwhile pursuing or better just to pull up stumps and abandon it? If – if the sessions were a month apart, I don’t believe that three would be enough. I – my suggestion would be that the sessions, if they were to be held, were closer together, so that there was
So, what, a fortnight? Yes. Yes, your Honour. In that way, there – there is going to be a more timely, I think, monitoring of the progression of – of the – well, for [Y].
Okay? Yes.
Well, say they’re every fortnight. After a month and a half – or, say, after two months, is that going to be sufficient time to make a fair assessment that they’re worth continuing or better to pull the plug because of the distress? I would – yes, your Honour. I would think that that would be a good timeframe.
…
Okay. All right. And I guess the other side to that lens in terms of what [Y] will miss out on, I’ve taken from what you’ve said, is there’s some potential downsides in terms of mum’s anxiety and [X]’s anxiety, and that those potential downsides must be balanced against how the mother can, if she can, encourage the time and the relationship. I’ve understood that correctly? That – that’s correct.
Okay. And so, ultimately, are you able to identify what, if anything, are the benefits to [Y] of having a relationship with the father or time with the father, I should say, as things stand right now? The benefit, I believe, would be that [Y] would have the opportunity to develop or not a relationship with – with the father. She knows nothing about the father, or very little. What she seems to know is not positive. So if that opportunity was presented to her with appropriate support, then she would be in a better position to make a decision about whether – there would be outside input in terms of people reviewing her psychological wellbeing during that process, but there would also be the opportunity for her to be able to say, “Well, even if I don’t spend a lot of time with this person, there is something that I might be able to gain from having a relationship with this person, as opposed to not having a relationship, or the opportunity to attempt to have a relationship with him at all.”
So, looking at that, something she might be able to gain: what are the things that she might be able to gain from that relationship, as you’ve said? The other things? The support of the father in, say, her education or extracurricular activities. That – that – that would be one area where that could be supportive. There’s the influence or the impact of cultural background and learning more about the cultural background from a different perspective. Same cultural background, but different perspective, and how that would pan out. So I think those – those two are – are positives that could be gained.
[44] T 141 – 142.
It is sufficient here to observe that issues regarding Y’s cultural background, noted by Ms G, presumably have continued to be relevant to and addressed by the Mother’s parenting given that she is also from Country B. No issues were raised against the Mother in this regard.
Regarding the two aspects of any role of electronic communication between Y and her Father, on the one hand, perhaps as part of the potential “reintroduction” process, and on the other, the potential risk to Y of starting a process of reintroduction but which ends relatively quickly, the following comments should be noted:[45]
Right. And then the role of the electronic side of things? The electronic side of things, I really – I feel that it would need to go hand in hand with face-to-face contact. That, by itself, that might not be a positive – or it – it won’t allow the contact to demonstrate the body language as much, as we know by the work that we’ve been doing. So the face-to-face contact is – is very important, complemented by follow-up video calls – not phone calls, video calls – so that is reinforced with the child. That could be
I see? useful, as well.
Thank you.
MR HADDOCK: And just thinking about the commencement of time, the question I had for you was this. If we’re looking at a situation where this man is a stranger to [Y] – and focusing on [Y] – and we’re looking at starting time and then potentially stopping it, what’s the advantage to [Y] of having to start time with the potential of stopping it as opposed to not starting time with the father? What’s the benefit, did you say, sorry?
Yes. What is the advantage to her of starting and potentially stopping as opposed to not starting? The – the advantage to her would be still the opportunity to actually meet this person and form an opinion and/or develop a relationship with that person. So my suggestion would be that it’s not only supervision, but also – of supervised visits or contact, if that was to happen, but also separate support for her where she could talk through what had happened, how she felt about it, and then, supported by that particular individual, basically work her way through how she was feeling, how she was responding, or whatever, to – to draw some conclusions for herself.
[45] T 143.
Ms G acknowledged that one possible outcome would be that after seeing a family therapist on a number of occasions, Y herself (although only approximately 9.5 years old) could make a decision herself not to attempt to start seeing her Father:[46]
And so, consequently, one of the outcomes of that exploration could be, couldn’t it, that [Y] says no. “I’ve explore it, and the answer is no”? The – the therapy would need to be designed and developed around encouraging the child. So on a – on a costs and benefits or a pros and cons with the – the therapist introducing the – the potential for a positive outcome in the context of this safe environment that the child would be in, and also allowing the child to know or at least have some information that, if it wasn’t a comfortable experience for her over time – so not immediately, because young children will often jump on the immediate – over time, then it could be discontinued, and I would suggest that the importance of the individual therapist is to help the child work through that – that particular process. The supervision is basically about the parent and the child interacting with each other without the supervisor…
[46] T 146.
In further exploration of “risks and benefits” regarding both the process and possible outcomes regarding reintroduction, the following exchanges between Ms G and Counsel for the Mother should be noted:[47]
[47] T 147, 148 & 149.
And that that is an informed choice? That’s an informed choice, but I – also based on the fact that this child is still only very young. So there would need to be support from other members of the family around trying this particular approach.
And would it be the case that you would recommend this same process for [X] and [Y], or only [Y]? [X] presented as much more independent. She is very articulate. She did mention and it’s in the report – I can’t tell you exactly where – that, at some stage, she would probably wish to meet again with the father, if only to have closure and/or the opportunity to – to develop a relationship with the father.
Yes. So what she said at paragraph 94 was – she stated that, in the future, she might consider some interaction to get closure, then no further contact? That’s what she said, yes.
…
But it was about getting closure on the relationship to be able to move on without the relationship? That’s the way that she – she presented it, yes.
And so, at 16, you’re comfortable with that decision, but, for [Y], at nine, you’re saying she can’t make that choice? Not without the – the opportunity to spend some time with the father, if that is possible, and/or without – well, with supportive counselling, as well, to help her work through that process.
…
So doesn’t that place [Y] sort of between that proverbial rock and a hard place? It – it does, your Honour. However, [X] has expressed that, although she’s very concerned she would be willing to accompany [Y] to a meeting with the father. So, to me, that suggests she’s not totally against the idea herself, that – that – she – she has obviously thought about it and would consider that, if she felt sufficiently anxious about it, that she could accompany her to ensure her safety, if nothing else.
…
Seems a range of contradictions. I understand that that’s what we deal with, but still? It does. It – it – it does. I – to me, it suggested that [X] was not necessarily as reluctant to meet with the father as she might have presented, in other words, around closure, that there, in her mind, could still be the opportunity to have a more positive contact than just meeting with the father to get closure for herself.
But it is all still predicated upon her anxiety for her sister about spending time with her father? That’s correct, your Honour, yes.
…
She stated that [Y] was shocked when she was informed that [Mr Yulay] was not her biological father. [X] stated her impression that [Y] would not be safe to spend time with [Mr Zahir]. She stated that she would accompany [Y] to any meetings, stating, “I wouldn’t feel comfortable.”
? That’s correct.
Now, I have interpreted that as she would put her own wishes secondary to [Y]’s protection; have I misinterpreted that? No, you haven’t. That – that was the impression that she gave.
All right. Now, your report discovered that [Y] was most closely bonded within her family to [X]; that’s right, isn’t it? Yes. That’s what she said.
…
Right. So we’re talking about a fairly close-knit little family? Absolutely.
…
HIS HONOUR: So would it be going too far to say that the opportunity to explore the father-daughter relationship takes precedence over all else? I believe so, your Honour. I believe that opportunity would be useful for the – for the child so that she can explore it, form her own opinions
At nine and a half? Nine and a half. It would be difficult. That’s one of the reasons I suggested a prolonged period of time, because, as a child that age, she is going to be influenced very much by the primary caregiver, the sister, because that’s her go-to person, and even the stepfather, because he seems to have very frequent input into the – into the family, as well.
There was brief consideration specifically regarding the fact that the Father was absent from the children’s lives for five years from 2014. Thus:[48]
HIS HONOUR: Well, on that score, the five-year absence: what’s the significance of that, where someone literally, for want of a better description, vanishes from the family to the other side of the world? What’s the significance of that, particularly from the perspective of the children? Well, the – the – the children, your Honour, the – the second child was a baby at – at the time. So it didn’t have – she, I beg your pardon – didn’t have a father figure at all. [X], on the other hand, had some knowledge of the father that – that vanished. So she would only have been – I can’t remember how old she was at the time, but she was only fairly young herself. So I – my – my impression is that – that they then moved onto this new relationship. So the father has been this person who has been not there at all. But the relationship with a father figure has developed with the stepfather over time.
…
So he was still MIA, so to speak? Yes, absolutely. Absolutely, and that would lead to questions, particularly with [X], as to where he was and why he was absent, because she did have some knowledge of him prior to his leaving the country.
And does that have any significance – that is, his absence. Does that have any significance – and, if so, what – in the attempt to re-establish a relationship with [Y]? You know, will she ask, “Well, you weren’t around. Why?” “I was back in [Country B] doing stuff”? Working, yes. Yes. So the impact on her – I – again, I – I feel that if any consideration to the father spending time with – well, [Y] in particular, it is around this building of a relationship that was not able to happen at the time because – not because the father left the country, but more around circumstances that led to him leaving the country and not having contact, without going into too much detail.
But you would accept, would you not, that going to another country is not – for, you know, five years is not a usual response to – you know, in sort of most Family Law matters. I know that there are particular circumstances here, and that [Country B] is the cultural and family heritage – all those sorts of things. But just sort of fleeing, you know? It – it is unclear – or for me it was unclear as to why the father hadn’t returned previously. The information that he provided was that his preferred country of residence is [Country B], so he would have stayed there had he not had information around the family violence that was reportedly or allegedly occurring in this new relationship with the – the – the mother – between the mother and the stepfather.
[48] T 150 & 151.
Some of the comments of Ms G here, I confess, seem to be a little strained, particularly that the focus seemed to be on the reason why the Father was absent from the girls’ lives for so long, rather than on the foundational fact that he simply absented himself from their lives and did so without explanation or warning of his departure.
I need only further remark that the Family Consultant’s evidence (in the Report and orally), in my view, placed too much emphasis upon the possibility of a relationship between Y and her Father to the extent that that possibility took precedence over all else. The relevant “risk assessment” relating to that possibility in the light of the Father’s long absence from the children’s lives, in my view, was cursory at best. Indeed, given the Court’s protective responsibilities under the Act, unfortunately in my view, there was insufficient attention paid to the wide range of potential risks for Y, her sister, and her Mother should any attempt be made to introduce Y to her Father.
Fairly, Ms G did acknowledge some risk of the Mother being re-traumatised if an attempt was made for Y to start to spend time – even supervised time – with the Father. And X’s comments regarding her protective action towards her younger sister were remarkable. They showed clear insight regarding her concerns but selfless, perhaps almost sacrificial, care for her sister. By this I simply mean that notwithstanding her clear and consistent view that she did not wish to see or spend time with her Father (but might do so for some sort of “closure” when she is older) she would put aside her own fears, anxiety and antipathy to ensure that Y was safe should she spend any time with her Father.[49] Such self-sacrifice was little short of heroic.
[49] See Family Report, par.94.
Supplementary Evidence of the Family Consultant
As a matter of procedural fairness, the Court raised with Ms G a further proposition in relation to the introduction of supportive therapy/counselling for the child Y when she is slightly older, perhaps 12, with a view of possibly commencing a relationship with the Father, and requested her comments on this proposition. The Family Consultant’s response did not take her oral evidence or Report any further.
I remind myself of the following, now quite long-standing, principles, which are regularly referred to in various Full Court decisions noted, and also by me.
1.In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully I adopt her Honour’s comments. Brown J said:[50]
[50] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68]. See also comments by later Full Court decisions in Slater v Light (2013) 48 Fam LR 573.
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
2.Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined various other points of reference. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[51]
[51] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks. The same remarks of Brown J in Mazorski v Albright were also endorsed by the Full Court in Sigley v Evor (2011) 44 Fam LR 439 at [131] – [136].
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, 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 quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
3.In addition to these comments, it is useful to recall some earlier comments by the High Court in AMS v AIF. In that case, Kirby J observed that there is, in parenting cases that involve relocation, a “large element of judgment, discretion and intuition.”[52] In my view, the same sagely simple comment applies essentially to all parenting cases, irrespective of whether or not there is an application regarding “relocation.”
4.In the same case, Hayne J said (internal citations omitted):[53]
[204] The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order - usually an order that says yes or no to some application. "[A] complicated mass of human experience has to be reduced to the simplest possible terms." Because the problems are human problems, because they are as varied and complicated as they are, the legislature speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
[205] Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be "best" for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
[52] AMS v AIF (1999) 199 CLR 160 at p.211 [150].
[53] AMS v AIF (1999) CLR 160 at p.228 [204] & [205]. Of course, the comments by both Kirby & Hayne JJ are in a legislative context different to that which operates today. Accepting that qualification, respectfully, their Honour’s comments, in my view, are nonetheless important and apposite to the matters currently before the Court.
Respectfully, the comments of Hayne J are especially apposite in almost all parenting cases. They apply, and are particularly relevant, to the matter currently before the Court given its “complicated mass” of human problems from which the Court has to fashion Orders that are in Y’s best interests.
Finally, I note in particular the following from the Full Court’s decision in McCall v Clark, at [121] – [122] (italicised emphasis in original; underlined emphasis added):[54]
[121] In coming to our conclusions we accept as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.
[122] In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
[54] McCall & Clark (2009) 41 Fam LR 483 at [121] – [122].
Consideration and Disposition
A comment or three on matters of evidence before consideration of the legislative “pathway” need to be made.
First, accepting that, for a significant part of the litigation, the Father was a self-represented litigant, he maintained quite a severe prejudice against the Mother, among other things, arising from a historical incident involving her and her Husband in the Country C in 2015, and the Court throughout the litigation.
Secondly, a large number of the Father’s complaints arose from what he plainly perceived to be racist slights towards him. This racial lens often tended to distort his view of a great many things. Certainly, from the Court’s perspective, his comments about the alleged racism he saw, perceived or felt directly or indirectly from or by the Court, are without foundation. They are offensive and should not have been made.
Thirdly, for all of the slights he complained about or felt, unfortunately he showed a remarkable lack of insight into (a) his complete absence (with little explanation other than to look after his mental health) from the children’s lives for five years, commencing in 2014, and (b) his astonishingly cruel emails to the Mother and/or to her family over much of the time of his 5 year absence from 2014. His regular refrain that he was simply stating “facts”, and/or that he (and by assumption only, the Mother) had since “moved on” (when plainly he or they had not), were unconvincing and generally problematic. These matters also showed a significant lack of insight.
Fourthly, the Father’s only explanation for him leaving the children and returning to Country B was essentially so that he could attend to some rather unspecified and unidentified mental health issue. In some circumstances, this extreme course may be both understandable and commendable. However, here, in the absence of any relevant evidence, (a) the absence was for a very long period of time, (b) the absence left the Mother solely responsible for two young children, and (c) the only communication during this period from the Father was essentially callow, abusive and cruel to the Mother and/or to her family. The length of the absence and the lack of information regarding it are crucial. It is difficult to consider it as anything other than an abandonment of the children for a very significant time and during a critically formative period in the children’s lives. It is therefore also difficult not to see it as an abrogation of parental responsibility.
It should also be recalled that in the Family Report (par.50), the Father is recorded as saying that his preferred place of work and home is Country B. His oral evidence was generally to similar effect.
Fifthly, the Father’s unconstrained and often crudely insulting correspondence to the Court in recent times (Exhibits MTA 1-3) were also matters of very significant concern. They showed poor judgment, lack of insight and a basic inability to restrain his emotional state, despite being informed by the Court on numerous occasions of the severity and inappropriate nature of his correspondence. His fierce, personal attacks on the ICL were also very concerning and showed similar lack of prudence, lack of emotional control, and much else besides. They perhaps increased in intensity after his unsuccessful attempt to have the ICL recused from the proceeding.
In short, in my view, the Father’s evidence was troubling and quite problematic on multiple fronts for the reasons noted. In the light of the matters recorded, a particular and very troubling issue not addressed by him concerned what level of confidence the Court could have that, at some unspecified time in the future, without warning or explanation (as he did between 2014 and 2019), he might not again simply return to Country B and leave the Mother and his daughters alone and unsupported.
Finally, as a matter of evidence, I accept the Mother’s evidence, limited as it was. She has solely cared for the children for a significant number of years. By any and all accounts, even acknowledged by the Father, the children are doing extremely well academically and in all other respects. This must be greatly to the Mother’s credit. I accept the Mother’s (and her Husband’s) evidence regarding the accidental nature of the single and passing physical contact between them in 2015.
Turning then to the considerations in s.60CC of the Act, summarily I note the following. Absent any other indication, I should be taken to follow sequentially the considerations in s.60CC(3).
X’s views about her Father are clearly recorded in the Family Report. She does not currently wish to see or spend time with her Father, but may do so in the future for the purposes of “closure.” Her position in relation to accompanying Y, should her sister ultimately see or spend time with her Father, was and is heroic and significantly protective. In many ways, it speaks loudly of X’s views and concerns about the Father.
As for Y, at par.128 of the Family Report, she confirmed that she does not know much about her biological Father. For a significant part of her life she had regarded Mr Yulay as her Father, and still largely regards him as such. In the same place in the Report, she commented that she has no desire to see her Father, the Applicant.
There is no question that each of the girls has a close relationship with their Mother. The views of the girls effectively discloses and confirms their lack of relationship with the Father. In X’s case, for the reasons given earlier and especially in the light of her age, her views about the problematic relationship with the Father should be given very significant weight. Likewise her protective stance in relation to her sister Y should likewise be given significant weight. It reflects a significantly problematic relationship with the Father, and in my view, equally so should any attempt be made to introduce Y and her Father. The risk of further trauma (and re-traumatisation) for both the Mother and for X is a significant consideration, both under s.60CC(3)(b) and other under s.60CC(2)(a), (b) and (2A).
For the purposes of s.60CC(3)(c), (ca) and (i), the most significant matter to consider here is the Father’s unexplained departure from Australia in 2014 and his absence from the lives of the children for the following 5 years, and equally so since his return to Australia in 2019. In effect, in reality, and in every other respect, he is a complete stranger to Y.
In relation to sub-paragraph (d) (and somewhat in relation to sub-paragraph (e)), the only observations that are possible here are significantly problematic and highly speculative. This is simply because of (i) X’s opposition to spending any time with the Father, (ii) X’s protective disposition towards her sister, and (iii) Y’s lack of relationship and knowledge about her Father. Added to these factors, as previously observed, is the complete unknown as to whether there is another risk at some time in the future of the Father simply disappearing from the children’s lives.
Somewhat rhetorically, the Court needs to pose and consider the question: why would(or should) the Court risk sanctioning the attempt to commence a relationship between Y and the Father in circumstances where (i) Y has stated that she does not wish to see her Father, (ii) X and her Mother fear being re-traumatised by attempting to commence a relationship with the Father, (iii) if such attempt commenced, Y could simply refuse to proceed with that process, and (iv) if the process of introduction proceeded, there remains the further potential risk of the Father unexpectedly and without explanation leaving the family again and returning to Country B, his preferred place of work and living.
Regarding questions or matters of “capacity” under s.60CC(3)(f), in my view the evidence points clearly to there being no issues in this regard for the Mother. However, on the largely unchallenged evidence before the Court, there are historically, and currently, immense issues and questions regarding the capacity of the Father to provide for the children in any relevant respect.
Again on the evidence before the Court, and for the reasons already set out, the same problematic arises regarding the children for the purposes of s.60CC(3)(g) and the Father. No such issues arise from the Mother’s perspective. Given that the Mother is also from Country B, I do not see that any cultural or lifestyle issues arise in this regard. No such matters were raised by the girls. Again I note, on the one hand, how well the girls are doing in every respect, and on the other, as a result of the Father’s long-time absence from their lives, how antipathetic the girls are from having anything to do with him.
True it is that the Mother failed to obtain recently a domestic violence Order against the Father once she learned of his relatively recent return to Australia. There are significant mutual, but mostly by the Mother against the Father, historical allegations of domestic violence. Some comments by X of her vague recollection when she was a young child, perhaps somewhat support the Mother’s account. Certainly the Father’s bitter, hostile and cruel correspondence to the Mother and her family, attest to the complete breakdown of any co-parenting relationship – historically and the complete destruction of such up until the present time.
In my view, the Orders sought by the Mother, supported by the ICL, are strongly in the girls’ best interests. As difficult as it is to make such Orders, to be terribly repetitive, actions have consequences. The Father’s complete absence from the lives of his children for 5 years has effectively eroded any solid ground upon which it might be possible to establish any relationship with Y. To do so would risk significantly re-traumatising the lives of the Mother and of X. Both girls – X and Y – clearly and firmly opposed seeing or spending any time with their Father. He is a complete stranger to Y.
The Father’s recent very hostile conduct towards the ICL, and towards the Court, did not assist his case at all. To this effect, the following emails to the Court should be noted:
13 January 2022
Dear Associate, HH and all parties,
Thank you very much for your email. Please see below my responses which are all FACTUAL:
1) I am increasingly frustrated by the back and forth of communications on this matter. I am tired, sick and suffering anxiety about the pattern of actions aimed at frustrating me. This email could have been sent in September 2021, but no, you people decided to ignore it. When i followed up in December 2021, i received an email from you telling me a lie, that as a self representing applicant, i am not discriminated against and i have the same rights as lawyers in the issue of subpoena.. When I show you evidence that your position is wrong, you now continue your actions to frustrate me further. My statement to you and HH is that, if your plan is to wear me out, then you are succeeding. Because I am worn out!
2) Regarding the matter that HH requests i be formally cautioned on risks i run by continually making slanderous, bordering on libelous accusations against ICL. My response is:
a) The undeniable fact remains that i, [Mr Zahir] made a formal application against the ICL accusing her of being a RACIST, a CRIMINAL and lacking morals. If HH is not aware of this, he should check the court records. There is no reason that i cannot refer to the factual information that i indeed filed an application in court against the ICL, [Ms T] claiming that she is all i have said, a RACIST and a criminal. On what basis is that fact slanderous?
b) Doesn't this statement attributed to HH make him PREJUDICED against me? a position he has taken throughout this case? ICL is a qualified lawyer, if she wants to sue me, why cant she go ahead? Will HH's position make any difference or stop her from suing me if indeed she wants to? Is HH now officially showing his face as an advocate or lawyer for the ICL?
c) On the 2nd of September 2021 when i made it clear i will be filing an application for the ICL to be discharged, HH yelled at me, and disrespectfully attacked me making comments to ask how dare i make such accusations against the ICL. HH can refer to court audio for the evidence. His Honour Judge Neville had not given himself the opportunity to even wait till he read my formal application and the evidence I will present. He decided even before my evidence was submitted to yell at me and attack me for daring to accuse the ICL. Would I have ever won the case, I knew I would never! HH Judge Neville was already prejudiced against me and i had no chance. Why will Judge Neville continue in this prejudice?
d) Throughout this case, i have watched silently as Judge Neville yells and belittles me in court. I have observed silently that he never does that to the white self represented people. On one occasion, i listened in admiration as Judge Neville engaged a lady, i believe her name sounded like "[Ms U]" in a dialogue that lasted about 30 minutes. The lady kept providing the same responses to HH's questions and he kept repeating himself so the lady could answer in the expected way. HH was very lovely and kind, and i wondered why he was always rude and disrespectful to me in similar circumstances when i did not give the responses he wanted (just like that woman [Ms U]). Personally, as a general rule, i respect the authority vested in people to do their jobs, but i have strong opinions on people who treat other people based on the colour of their skins. It does not matter if one is the Prime Minister, Supreme court judge, or President. if you treat [people of colour] horribly because you believe yourself to be a white supremacist, i have zero respect for you. Only people with no common sense treat people differently based on the colour of their skins The court is the last place i expect to see that, unfortunately it is always on display.
e) Similarly on same September 2nd 2021 (i believe), HH was was asking me questions. The document he should be referring to was what ICL submitted (draft consent minute). However his associate had made a mistake and not provided him with that. I obviously could not immediately answer his questions becuase he was looking at a different document. Instead of blamining his Associate for not giving him the required documents, he began to yell at me. Something he does not do to white self represented people. My message to you HH is clear, you may get away with disenfranchising me, but ONE DAY, you will be exposed by someone with more resources to investigate you, and all you have achieved in your career will be destroyed. I am a little fly, destroying me will give you nothing! maybe temporary happiness. But in the end, you all will be exposed! One day, it will happen.
f) I have observed the court protect WHITE children even when the lowest risk exists. i have been in court and witnessed white children being protected by court orders without even any proper evidence of risk to the children. This court ignored my request for my children to be placed on Airport watchlist for over 15 months under the excuse of covid and that borders are shut. Even though i kept on saying more than 500,000 Australians had been given exemptions to travel overseas, HH continued to ignore me. The lives of my [coloured] children do not matter to this court. Like always, white supremacists use whatever means they can get to harm [people of colour] and their children, and sometimes they enlist the help of weaker [people of colour] members of the [people of colour] community. In this case where a weak party to the case has presented them with an opportunity to destroy my [coloured] children, this court has done nothing but enjoy the task of making sure my children are put at risk! Hopefully, one day, it will be your own family members!
3) With respect to question that "HH requests that the Applicant please explain why the Court would grant leave to issue a subpoena to the Department of Home Affairs when one has already been directed to that Department. The subpoena to the Department Home Affairs was issued on 19 May 2021 and documents were produced shortly thereafter"
My response is that this question makes no sense. The wording in the ICL subpoena request is different from the wording in mine. The documents provided in a subpoena are dependent on the wording of the request.. What i am requesting is not the same as what was previously requested by ICL so it does not make sense for this question to be asked if the two request documents are read. Secondly, the ICL is not my lawyer. I do not depend on her to make my case. I have stated time and time again, that the ICL does not want what is best for my children. I have accused her of being a RACIST, and a CRIMINAL, who is working against the interest of my children, her clients. That accusation is in an application i have filed in the courts (please refer). I do not expect her to make any case to advance the interest and safety of my children. As the applicant, i make and request for materials that advance my interest and will not depend on someone i have accused of being a racist and a criminal especially when the request she made is different from what i am making.
Of course, as HH is acting as if he is the advocate for ICL, he can continue on his position and do whatever he likes. The constitution grants him that power.
Kind regards,
[Mr Zahir]
…
22 February 2022
Judge Neville,
You write to me asking me to give reasons for the subpoena. I respond to tell the individual will not provide any information unless he is subpoenaed.
Armed with that information you pull one of your stupid white supremacist tricks that you stupid racists use in court to ask that I let him produce an affidavit first.
Fool! If he could provide an affidavit, then why will I need a subpoena?
You have not had enough of me when you tell and try to intimidate me in court, you just have to make sure I am unable to provide any useful evidence.
A man of such dishonor, being referred to as "your honour?" . Nonsense!
Keep going with your racist behaviours. One day you will be exposed to the whole world.
[Mr Zahir]
…
23 February 2022
I wish Judge Neville to note that no Judge using racist white supremacist tactics can force a lawyer on me. Idiot!!!
Any lawyer who demonstrates to me that he/she is intended to harm my case will not have the opportunity to represent me.
Any lawyer is required to deminstrate that he/she is going to use his best skill & expertise to serve my best interest. A stupid moronic Judge like Neville who uses racist & white supremacist tactics can do whatever he wants except force his stupid orders of representation on me.
Idiotic Judge Neville thinks he is better human because he uses white supremacist tactics?. Stupid idiot!!!
[Mr Zahir]
Respectfully, the Father needs assistance to help him see the import and impact of his actions – which have nothing at all to do with the Court or the ICL – upon his children. Absenting oneself from the lives of one’s children, and remaining absent from them for years, without any other communication or support, has clearly had dire consequences. “Re-entry” to their lives is neither easy, straight-forward, nor automatic. Nor is it something the Court should force upon otherwise flourishing children. To state the obvious: such a course would be, on any view in the light of the evidence, immensely disruptive to the children (and in X’s case, likely traumatising), and similarly so for the Mother. Further, the volatile conduct displayed by the Father does not give the Court much faith or confidence in his parental capacities, or his ability to approach the Mother and the children in an appropriate and supportive manner. “Support” in any relevant or consistent sense or practice by the Father to the children and the Mother, has essentially been absent since he left Australia in 2014.
In time, if a gentler, less antagonistic and more conciliatory, approach to the Mother, and equally a less entitled approach towards the children, were to be adopted by the Father, it might be that the girls will seek him out. Ultimately, this is a matter where very significant, gentle and patient “bridge-building”, over quite some time, is required. In my view, given the poise and maturity of the girls, the first move in any rapprochement with the Father should come from them. As indicated in the Family Report, there is currently, and which is likely to remain, very significant resistance if any “spend time with” arrangements were to be “imposed” upon them by the Court. Put another way, and in the light of the Full Court’s comments in McCall v Clark at [121] – [122] cited earlier in these reasons, there are, in my view, so many unknowns in the evidence, and in the risks of attempting to start any relationship between Y and her Father, that they strongly outweigh any possible benefits to the girls, Y in particular. Accordingly, an Order should be made that the children are only to spend time with the Father in accordance with their wishes.
Regarding the Order sought by the Mother to have the children removed from the Watch List, it is important to note the following: (a) by consent, the Mother has sole parental responsibility for the children, which she has had by default since the Father left Australia in 2014, (b) as has already been noted, the children are doing exceptionally well in the Mother’s care, (c) the only alleged incident of any risk is a historical event from 2015 involving the Mother and her Husband, which has been denied/explained by both parties involved, and (d) there is no evidence of any other incidents to substantiate the Father’s generalised allegations of risk. The Court has no doubt that the Mother will never intentionally, or negligently, place herself or the children in harm’s way. Accordingly, the interim Watch List Order made on 3rd November 2021, simply as a precautionary mechanism until allegations and evidence had been tested at the final hearing, will be discharged and the children removed from the Watch List.
Lastly, the injunction as sought by the Mother, and supported by the ICL, will also be made, however, only for a period of 2 years. This is in circumstances where the Father has displayed a history of conduct towards the Mother, the ICL, and the Court, which has been completely offensive, disparaging and anxiety-provoking for the Mother and the eldest daughter. The Court accepts the significant effect this has on the Mother, and her ability to focus on raising and parenting the children, which she has done exceptionally well thus far. Notwithstanding this, it is not in dispute that the Father has not made any attempt to contact the Mother or the children since his return to Australia some 2 and a half years ago. Thus, an injunction will be granted but only for the period of 2 years, for the purpose of ensuring protection of the Mother and the children, however, not in excess of what is required, particularly in circumstances where the Father has indicated that he will likely return to Country B should he not be permitted to commence time with Y.
For the reasons given, including the Court accepting the submissions by the Mother and the ICL, the Orders sought by the Mother, amended only to the extent indicated above in relation to the injunction, Watch List, and spend time with in accordance with the wishes of the children, should be made as being in the best interests of X and Y.
I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 29 July 2022
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