Heiden & Kaufman (2011) FMCAfam 478

FEDERAL MAGISTRATES COURT OF AUSTRALIA
HEIDEN & KAUFMAN [2011] FMCAfam 478
FAMILY LAW Competing parenting applications allegations of mental health issues allegations of violence towards mother and children by father risk of violence impact of fear of violence extremist beliefs of father. Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 61DA(1), 61DA(2), 65DAA, 65DAA(1), 65DAA(2), 65DAA(4), 65DAA(5)(e), 67N, 69ZN, 69ZO(a), 69ZX, Division 12A Evidence Act 1995, s.140 Federal Magistrates Act 1999 Marriage Act 1961 Farmer v Rogers [2010] FamCAFC 253 Allesch v Maunz (2000) 203 CLR 172 Jones & Dunkel (1959) 101 CLR 298 Browne v Dunn (1893) 6 R 67 (HL) Goode & Goode (2006) FLC 93 286 Marvel & Marvel [2010] FamCAFC 101 U & U (2002) 211 CLR 238 Mabo v Queensland [1988] HCA 69; (1989) 166 CLR 186 (8 December 1988) Minister of Immigration v Teoh (1995) 183 CLR 273 Bennett & Bennett [2001] FamCA 462 Pitkin & Hendry [2008] FamCA 186 Dylan & Dylan [2007] FamCA 842 Mazorski & Albright [2007] FamCA 520 Johnson (2007) FLC 93 344; [2007] FamCA 1235 R & R: Childrens Wishes [2000] FamCA 43 Re David (1997) FLC 92 - 776 MR HEIDEN Respondent: MS KAUFMAN PAC 3161 of 2009 Judgment of: Hearing dates: Date of Last Submission: Harman FM 14 & 15 April 2011 15 April 2011
Heiden & Kaufman [2011] FMCAfam 478
Cover sheet and Orders: Page 1
Delivered at: Delivered on: REPRESENTATION Counsel for the Respondent: Solicitors for the Respondent: ORDERS (1)
Parramatta 15 April 2011
Ms Smith Parker Kissane & Gibson
In accordance with paragraphs 1 to 5 of the Minute of Orders sought by the Independent Childrens Lawyer, Exhibit ICL3. In addition I note the final paragraph of that minute and I make the following further orders. Any communication of written form forwarded by Mr Heiden to the children, in accordance with the above orders, shall be in the English language and not otherwise. I restrain both parties from making any application in any court exercising jurisdiction under Family Law Act 1975 other than the Federal Magistrates Court, Parramatta, such application to be listed before me. In the event that any proceedings are instituted by either parent no subpoena is to be filed by either parent without leave of the court. I otherwise discharge the Independent Childrens Lawyer with the courts thanks. I dismiss all outstanding applications from responses and remove all issues from the list of cases awaiting hearing. Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
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IT IS NOTED that publication of this judgment under the pseudonym Heiden & Kaufman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA PAC 3161 of 2009

MR HEIDEN
Applicant And
MS KAUFMAN
Respondent
REASONS FOR JUDGMENT

1. These are proceedings involving competing applications for parenting orders by the parents of two children being Mr Heiden, who is the applicant father in these proceedings, and Ms Kaufman, who is the respondent mother. The proceedings relate to the future care arrangements for their two children, [X] born [in] 2005 and who is accordingly shortly to turn six years of age and who I shall refer to throughout these reasons as [X] and [Y] born [in] 2007 who is three and a half years of age. The parties have been engaged in litigation before this court for some little time. The proceedings were initially commenced on an application filed by Mr Heiden on 8 July 2009. An amended initiating application was subsequently filed on 1 December 2009 and prior to trial a further amended application had been filed although, to some extent, the applications filed and relied upon by each of the parties is not of such relevance as might have otherwise been the case, particularly in the case of Mr Heiden with respect to whom the relief effectively sought by him is set out in paragraph 60 of his most recent affidavit filed in these proceedings on 15 March 2011.
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The parties to the proceedings have also had the benefit and assistance of an Independent Childrens Lawyer who was appointed late in the proceedings but who has assisted in material being produced to the court by way of subpoena and has participated substantially in crossexamination and testing of evidence during the course of these proceedings. The matter has a somewhat lengthier history than many cases before the court. That arises largely out of the circumstances of the separation of these parents and matters which have arisen since their separation. At the time that the first application was filed by Mr Heiden in July 2009, being nearly two years ago, Mr Heiden had no knowledge of the whereabouts of Ms Kaufman. That remains the case. As a consequence, an application was made for substituted service and after a number of mentions, an order was ultimately made in the nature of a Commonwealth information order so that information was provided to the registry by Centrelink which enabled service to be effected upon Ms Kaufman. Since being served, Ms Kaufman has participated in the proceedings and has been legally represented. At the time the proceedings were commenced, Mr Heiden was legally represented but has, during the course of the matter, had Legal Aid funding withdrawn, an appeal refused and, as a consequence, has had to conduct these proceedings on a self-represented basis. That is with one small exception. When these proceedings commenced yesterday, and having occupied now two days of hearing, Mr Heiden had made an application to be assisted by a person who was described as a law graduate and due to undertake practical legal training in New South Wales. It was sought that this person would assist in the nature essentially of a McKenzie friend. Leave was granted for that to occur but as a consequence of a separate judgment delivered at the conclusion of the matter yesterday, that McKenzie friend, Mr A, has been removed from the proceedings and has taken no further part. The reasons for that are contained, as indicated, in a separate judgment. The issues between these parties have occupied a number of court events. The matter had first come before the court on 3 August 2009
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on which date Mr Heiden appeared in person and indicated that due to a miscommunication between he and his then solicitors, who have been the subject of some criticism by Mr Heiden and his former McKenzie friend, that his solicitor was not in attendance and the proceedings were, accordingly, adjourned to November. 10. In November the proceedings were further adjourned for the purpose of the father filing an amended application which was to seek, amongst other things, a location order. The matter next came before the court on 31 March 2010 when a Federal Magistrate made an order pursuant to s.67N of the Act and, as a consequence of that, information as previously indicated was provided, was released in May of 2010 and personal service effected shortly thereafter. On 7 June 2010, a solicitor appeared on behalf of Mr Heiden, there was no appearance on that date by Ms Kaufman. The proceedings were accordingly adjourned. On 3 August both parties appeared and were represented. On that date, the matter was listed for an expeditious trial, listed on 27 and 28 January 2011, although those dates ultimately were vacated at the request of the parties. The proceedings came back before the court on 28 October 2010 following a divorce which had occurred between the parents but as to which there would appear to now be some controversy as to notice. On that date, an order for the appointment of an Independent Childrens Lawyer was made and the proceedings were otherwise adjourned for further mention and directions and the hearing dates which had been fixed in the matter vacated. On 8 December 2010, the proceedings were further adjourned at the request of Mr Heiden who was then, for the first occasion in the proceedings, entirely self-represented and that adjournment was not only at Mr Heidens request but to permit him to make an application and pursue an appeal to the Legal Aid Review Committee. That appeal was ultimately dealt with although unsuccessful. As a consequence, when the matter then returned before the court on 8 February 2011, the
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present hearing dates of 14 and 15 April 2011 were fixed. The matter otherwise has not had any substantial court events since that time other than a compliance check.
The evidence
16. In these proceedings, each of the parents has filed affidavit material. Each has filed more than one affidavit and in the case of Ms Kaufman, there are two affidavits relied upon, they were a primary trial affidavit and portions of an earlier affidavit principally relating to a number of annexures relied upon. Mr Heiden has relied on each of the affidavits that have been filed by him in the proceedings. In addition, Mr Heiden had sought during the course of the hearing yesterday to adduce oral evidence from two witnesses who had, on Mr Heidens submission, not previously been available to swear affidavits as they had been out of the country. Leave was granted to Mr Heiden to adduce oral evidence from each of those two witnesses. That had occurred after submissions and a brief adjournment and a consideration of the Full Courts recent decision in Farmer v Rogers [2010] FamCAFC 253. In that case, the Full Court made clear the courts power, ability and indeed responsibility to manage proceeding under both the relevant provisions of the Federal Magistrates Act 1999, as summarised and set out by the Full Court in paragraph 198 and which provisions of course predate the second aspect which gives the court case management responsibility, the authority being Division 12A of the Act. In that regard, whilst ordinarily evidence is to be given in proceedings by affidavit and in this case certainly directions were made for evidence to be given in that fashion and not otherwise, I was conscious that the court particularly exercising its powers under the Federal Magistrates Act 1999, under which it is constituted rather than the Family Law Act 1975, has an obligation to deal with matters in a fashion that is as informal as possible, although as the Full Court commented in the authority to which I have referred, Farmer v Rogers, informality does not mean that the proceedings are conducted in a
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fashion that does not otherwise comply with the principles of procedural fairness (see natural justice). 20. The principles in Division 12A and, in particular, s.69ZN provide for the courts management of proceedings in a fashion that will at all times whilst actively directly controlling and managing the conduct of proceedings, prioritise the childrens best interests as the paramount consideration. Section 69ZQ goes on to provide the principles that must be followed by the court and in particular sub.s.(a) thereof which requires that the court decide which issues require full investigation. In this case, there are a number of issues touched upon by the evidence that was suggested to be called from each of these witnesses and that was only elicited in any material sense following an opportunity afforded to the Independent Childrens Lawyer to speak with each of those witnesses but which, whilst not substantially in dispute, would certainly be perceived by Mr Heiden, who is disadvantaged I accept by conducting these proceedings on his own behalf, as a failure to be heard. On that basis and whilst wholeheartedly accepting that this court constituted under the Federal Magistrates Act 1999 has the power under that legislation, let alone the Family Law Act 1975, to manage or limit the giving of oral evidence or examination that such witnesses should be entitled to be called. That particularly flows also from the decision of the High Court and in particular the judgment of Kirby J in Allesch v Maunz (2000) 203 CLR 172 as referred to in paragraph 243 of the Full Courts decision in Farmer v Rogers that: It is a principle of justice that a decision maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as indispensable requirements of justice. It is a rule of natural justice or procedural fairness. It will be imputed into statutes creating courts and adjudicative tribunals. Indeed it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 5
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On that basis, as indicated, and whilst I accept that which was put by the Independent Childrens Lawyer, who had obtained at least a skeletal brief of evidence that would be led by each of those witnesses, that those witnesses should be permitted to be called and particularly as: a) It would not, as is otherwise the courts obligation in managing the proceedings, cause the proceedings to be unduly delayed or complicated; Ms Kaufman is legally represented in these proceedings and is, accordingly, much better advised in relation to procedural matters and also in a position to provide instructions with the opportunity that has subsequently been provided to obtain those instructions following the oral evidence of each of the witnesses; and The appearance of fairness in the regard must weigh in favour of Mr Heiden.
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In any event those witnesses have given their evidence and it now forms part of the evidence before the court, although as events have transpired it has not taken the matter any substantial distance. There are some aspects of the evidence in this case which are not in dispute. Chronologically at least the parties agree that: a) b) c) Ms Kaufman is presently 25 years of age; Mr Heiden is presently 32 years of age; The parties met and were married in accordance with an Islamic ceremony on the day of their meeting, [date omitted] 2004; The parties were subsequently married in accordance with the provisions of the Marriage Act 1961 on [date omitted] 2004; There are the two children of the relationship as referred to and; Finally these parties separated on 7 July 2008 at which date Ms Kaufman left the then matrimonial without any notice or pre
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warning to Mr Heiden and doing so unilaterally and taking with her each of the two children of the relationship. 27. Since that time there is no dispute between these parents that there has been no face to face time or indeed communication between either of these two children, [X] and [Y], and their father. At the time of separation [X] was a child who was not quite three years of age. At the time of separation [Y] was some eight months of age and, accordingly, is unlikely to have any recollection of his father of any meaningful nature. And it is not a criticism of Mr Heiden, simply a reflection of the reality of the cognitive ability and retentive ability of a child of that age. That is also consistent with Ms Kaufmans evidence which would suggest that that is so. The parties are substantially at issue in relation to a number of matters predominantly focussed around: a) Allegations of Ms Kaufmans mental health both in the past and at present; and Of far more importance and significance, issues of violence, risk of violence or the impact of fears or concerns of violence or other actions by Mr Heiden to or towards Ms Kaufman and/or the children, and the impact that those allegations would have upon these parties.
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Each of the parties in addition to swearing their affidavits have been cross-examined and at length by the Independent Childrens Lawyer. Mr Heiden as the applicant was cross-examined first in these proceedings. Mr Heiden was questioned regarding a number of convictions for assault, being two convictions which were entered it would appear in February of 2009. Indeed, those convictions were not disclosed in the evidence of the parties, although they were inferentially referred to in Ms Kaufmans evidence which annexed a copy of a final Domestic Violence Order which had been made in 2008, and which had referred to attending court to give evidence in proceedings involving Mr Heiden at the Local Court at [omitted] in February of 2009.
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Subsequently tendered into evidence were documents, Exhibit ICL1, from the New South Wales Police Service relating to those convictions and disclosing two convictions for common assault, as it is usually referred to. Whilst that was not referred to at all by Mr Heiden in his evidence he readily conceded that he had been convicted. However, in relation to those convictions a number of aspects of the evidence were concerning. Firstly, Mr Heiden indicated clearly that he had been legally represented, had pleaded not guilty, the matter had proceeded to a final defended hearing in which he had given evidence and it was following that forensic determination by the learned State Magistrate that a conviction was entered on each of the charges. Secondly, notwithstanding that, Mr Heiden continued to assert that he had never hit or threatened Ms Kaufman at any time at all during their relationship, including as alleged with respect to those convictions. Mr Heiden was steadfast both in his evidence and submissions that he would, if he could have afforded it, appealed those decisions, as he felt that the outcome and the entering of the convictions was neither fair nor just. When questioned by the independent childrens lawyer with respect of the same issues Mr Heidens evidence was somewhat less satisfactory. He indicated, when asked to concede that he had been convicted of assaults upon his wife as follows: But I have never done anything against the children so I dont see how it is relevant. I havent done anything. Ms Kaufman has a sensitive body. Any small hit will leave a mark on her body. I dont know how it happened.
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The above was a reference to the bruises that were the subject not only of Ms Kaufmans evidence and her statements to the police at the time, but also her statements to her doctor whom she had consulted the day after the alleged assaults and as subsequently found to be proven by the State Magistrate. The doctor had also prepared a report, handwritten as it might be, that was annexed to Ms Kaufmans material and admitted into evidence, as well as Ms Kaufmans having given evidence that there was photographic recording of bruises some days after the event, taken by the police after she had been to them and made her complaint.
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Overall I am satisfied Mr Heidens evidence was less satisfactory than Ms Kaufmans. I am not satisfied that Mr Heiden was always entirely frank or honest in his answers. And indeed at times I found him to be quite evasive and in a most self serving fashion. Aspects of Mr Heidens evidence I do accept unreservedly and they include, for instance, a line of questioning that was put to Mr Heiden by Ms Kaufmans counsel to the effect as follows: Ms Kaufman undertook the vast majority of daily care for both of the children? - Yes. She did. She was an excellent mother.
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That is so notwithstanding that the case that has been presented by Mr Heiden and I make full and appropriate adjustment for the fact that Mr Heiden has not been legally represented and has not at any time been particularly ably assisted by any person in these proceedings, but must be reflected that his case has otherwise been substantially critical of Ms Kaufmans and her capacity to care. That of itself creates some difficulty. In closing submissions Mr Heiden had indicated that if an order were made for the parents to have equal shared parental responsibility and for him to have face to face time and involvement with the children that that would alleviate Ms Kaufman of some of the parenting burden that she presently experiences, and which in Mr Heidens case she is ill suited to meet. Mr Heiden has been consistent throughout the case in asserting that Ms Kaufman cannot care for these children without assistance. I am not satisfied on the evidence as a whole that this is so. There are a number of issues arising from the very submission put by Mr Heiden as to equal shared parental responsibility and any interaction between these parents and the impact that this would have of a negative nature upon Ms Kaufman rather than the positive assistance that it is suggested to represent. Other significant issues that arose in these proceedings related directly to the evidence of violence given by Ms Kaufman and as evidenced by the Local Court convictions and the final Domestic Violence Order previously made but now expired, but also to a number of underlying issues relating to Mr Heidens belief system.
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I also have a number of issues with respect to Mr Heidens evidence not only based upon the fact that a number of his responses in evidence were anything but frank, and at times somewhat evasive, or seeking to rely upon documents or materials of others which clearly he adopts and embraces but does not seek to adopt or embrace for the purpose of establishing his own beliefs before this court to the extent that they are relevant, but also as there are a number of matters that he has simply left out of his evidence. The most significant of those relates to the assertion that Ms Kaufman suffers from, has always suffered from since and predating the relationship between these parents - some form of major depressive illness, requiring of psychiatric intervention. Ms Kaufman, for her part and I will return to her evidence shortly has been frank and candid regarding those issues. However, it is asserted again in his affidavit material, during cross-examination and in closing submissions by Mr Heiden, that Ms Kaufman is not in a position as a consequence of her depression and underlying mental health problems to: a) Provide a healthy environment for the children or at least not to do so without both parents being involved in their lives; To provide appropriately for herself without ongoing psychiatric support and assistance and medication; or To make informed decisions of a rational basis for these children.
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The difficulty I have with that is that Ms Kaufman does not seek to hide from the fact that in 2006 she sought out and received some assistance for her mental health. The full details of that are not clear, for though Mr Heiden had subpoenaed material from the hospital at which Ms Kaufman had stayed on that occasion and issues have arisen regarding its inspection, particularly by the McKenzie friend, it has not been sought to place any of that material before me. I have explained to Mr Heiden, at the beginning of the proceedings, at the conclusion of the proceedings, and during them, that any material that is in the subpoenaed documents is not viewed by me unless and until a request is made, by him, for me to do so by tendering same.
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I have made clear that this is the form of tendering material and that though any material contained in documents produced, such as from the [B] Hospital under subpoena, are business records and prima facie admissible as such as an exception to the hearsay rule under the Evidence Act 1995, that they must be tendered to be read. Notwithstanding the repeated suggestions to Mr Heiden in that regard and doing all but leaving the bench to place the document in his hand and cause him to tender it, it has not come before me. I can only infer from that, that there is nothing in the document by reference to a Jones & Dunkel (1959) 101 CLR 298 inference that would support any criticism of Ms Kaufman as levied. Indeed, Ms Kaufman was not cross-examined on those issues or, indeed, many other issues that were relevant and germane to her case or the determination of these proceedings generally. In contradistinction to those issues, it transpired in the crossexamination of Mr Heiden, that he had, during 2010 and, indeed, during the time that these proceedings were before the court and before me and being listed for hearing, not less than four involuntary admissions of a psychiatric nature to [B] Hospital. It transpired from that which was being led by Mr Heiden in his own case, in response to questions in cross-examination, that he was on a community treatment order following his last discharge from hospital. Those matters were not in any way placed into evidence by Mr Heiden and when it was put to him, during his cross-examination, that I had some difficulty in accepting why that material was not before me, he had simply indicated that it was as a consequence of his not being legally aided or represented and that he didnt appreciate that it was relevant. It beggars belief to suggest that to lead evidence as a fundamental tenet of his case as to Ms Kaufmans mental health and having had a period of hospitalisation as a consequence of same in 2006, that it would not dawn upon a litigant, intelligent as I wholeheartedly accept that Mr Heiden is, that his own mental health history, far more recent and as a recent as less than six months ago, would be relevant. That is not to suggest that there is anything that arises from any of those admissions which is relied upon by me in making the orders that I will ultimately
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make in this matter today, but simply that it impacts upon credibility and that, as events have transpired in this case, becomes a major and fundamental issue. 51. Another disturbing aspect of the evidence relates to the belief system espoused by Mr Heiden. Mr Heiden was born in Libya but is of Palestinian background and had spent a substantial period of his life, prior to arriving in Australia, in Palestine. I am conscious that Mr Heiden had, in relation to a number of matters put to him, suggested that in relation to, for instance, the viewing of videos over the internet that depicted suicide bombings, car bombings and executions, that these were things he viewed to inform himself of what was happening in the world and that, indeed, the type of violence as was viewed by him and its significance in this case, is more the extent to which it was viewed voluntarily or otherwise by Ms Kaufman and/or these children, that that was as a symptom and a consequence of the background that he had come from in Palestine and the violence that had surrounded him in his earlier life. I am fully conscious of the issues surrounding Al-Nakba and the impact that this has had upon the entire Palestinian diaspora. I am conscious that this may have had some impact, although Mr Heiden has not sought to lead more specific evidence than that referred to above, upon his belief systems and how he views the world at present. One thing I am clearly satisfied of, and as I have indicated to Mr Heiden during his cross-examination and during submissions and which I will again make clear in these reasons is that this is not a case, whatsoever, about Mr Heidens religious beliefs but, indeed, his deeper and broader belief system. Portions of the evidence by Ms Kaufman and as to which Mr Heiden was cross-examined at some length suggested that he, and at times also Ms Kaufman, had engaged in duas or prayers or calls upon Allah for a certain outcome to occur. It was suggested in Ms Kaufmans evidence that such duas had occurred in relation to each of their children, both while she was pregnant and carrying them and after their birth, that they would, as the parents of these children, be rewarded and brought great honour by the children dying prior to puberty and/or by going forward as shahid or martyrs in the cause of Islam.
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That is not in any way, again I emphasise, a criticism of the religious beliefs espoused, practised or otherwise of either of these parents at any time, but the concern with respect to those issues arises not so much as to those duas having been pronounced and I accept that they were but the manner in which they and the general attitude Mr Heiden demonstrates towards such issues of violence in the exterior secular world, upon his credibility generally. When first asked by counsel for Ms Kaufman whether he had, indeed, ever pronounced the dua seeking or praying for one of his children or either of them to die before attaining puberty, his response was, I cannot recall. I say a lot of duas. When asked whether he could have, his response was, Im not sure. I could have. I do that a lot. When he was asked more specifically did he ever make such a dua, his response was, Its possible. I dont think I did. I really cant remember, but I dont see why its important. When asked in relation to his views as to whether either of his children would bring him great glory, dignity or happiness by being shahid or martyrs in the cause of Islam, his response again, by reference to a draft constitution for an organisation to which he belongs, [H], which espouses some great affirmation of the importance of shahid, again Mr Heidens answers were less than frank, disingenuous and, I am satisfied, untrue. He suggested in response to such a question that he understood what shahid meant; it meant to be a martyr in the cause of Islam. He expressed his belief that if a person dies as a martyr, then that is a great honour for themselves and their family. When asked if he would be proud to be the father of a shahid or whether he had ever expressed the view that he would be so proud his response, somewhat enthusiastically, was, For sure. When that was returned to in crossexamination by the Independent Childrens Lawyer the responses were not dissimilar. Indeed, in questions that I had put during an interruption of the Independent Childrens Lawyers cross-examination regarding the same topic, as to whether he desired that either of his children should become shahid or whether he would have any pride in them if the same
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happened, noting that portions of the draft constitution tendered in evidence of the organisation to which I have referred, places some importance upon it and noting that that draft constitution also suggests that the State of Islam is already at war with Israel and, accordingly, there is a war readily available in which these children could be martyred, Mr Heidens responses was, again, less than frank. 61. He ultimately conceded that, as a topic and as a hypothetical consideration, if his children decided for themselves that they wished to martyr themselves in such a fashion, that, What can I do to stop them? If there was fighting he would let them fight. How old would they need to be to decide that? 18, maybe 20. Would he be proud of them if they did so, again his answer, For sure. Having given that evidence, Mr Heiden then retreated somewhat, to say, I do not want to hurt my kids. I dont want them to be suicide bombers. They are just supplications, something every Muslim does. I am not satisfied that that is, in fact, a correct statement or that, indeed, Mr Heiden is in a position to speak for all of Islam. Certainly I am not, but I do not profess to do so. Mr Heiden did that by answer, notwithstanding that whenever questions were put otherwise of a nature that would suggest, or at least seek to find, some basis or some explanation for his belief system regarding the desirability of a number of violent acts occurring, his response was, I dont know. Im not a scholar. That is not for me to say. That also attached to the concept of apostasy. One of the paragraphs of the draft constitution of the organisation [H], Article 7C, provides for a penalty of execution in the case of apostasy or a person leaving the faith. When asked if he agreed with that proposition and supported it, particularly noting that Ms Kaufman has indeed left the faith, Mr Heiden was anything but responsive. Ultimately, his response was twofold, to indicate that it was not his belief, it was in the draft constitution of the organisation of which he was a member, an organisation which he supports and to which he makes donations, prepares and distributes pamphlets and the like, and secondly, to justify it or explain it on the basis that, Well, there is execution in other places, such as the United States. Indeed, there are executions in a great many countries, and the purpose of this case is not to determine
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the rightness or wrongness of policies of execution, but certainly the explanation given by Mr Heiden that execution occurs in the United States is not yet, at least so far as I am aware, for a person renouncing their faith. 64. The fact that Mr Heiden could not bring himself to concede that this would create some sensitivity for Ms Kaufman, bearing fully in mind that she is aware of the views that Mr Heiden expresses through the draft constitution and other documents, and through his discussions with her during their relationship, and the fact that she is fully aware of the position he would likely hold and the views he would express regarding her having renounced his faith, and as a consequence, it would appear from Ms Kaufmans evidence, not being supportive of directly, at this point in their lives, engaging these children in and instructing them in or raising them in the Muslim faith, again is a matter that does no great credit to Mr Heidens sensitivity or generally with respect to his evidence. In contradistinction, I am satisfied that Ms Kaufman has done her best, whilst attending by video link for the purpose of these proceedings and being cross-examined, to be frank, honest and truthful. Ms Kaufman was cross-examined with respect to a number of issues relating to violence that had occurred in the relationship. Immediately prior to separation, and on 6 July 2008, Ms Kaufman has given detailed evidence regarding assaults upon her by Mr Heiden. They were reported to the police. She sought medical assistance and treatment. She left the home the day following those assaults, and on her evidence, at the first safe and available opportunity, and with the assistance of the Department of Human Services Ms Kaufman gave evidence in response to questions put to her by the Independent Childrens Lawyer regarding those matters. When she was asked why she had left on 6 July, Ms Kaufman indicated, He had bashed me and raped me the day before and I couldnt cope any more. He had done it in front of the children and I just couldnt take it any more. When asked where the children were, Ms Kaufman had answered that the children had been in the lounge room where, indeed, she and
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Mr Heiden had been when the incident referred to had commenced. She indicated she had been bending over, playing with her son, and that Mr Heiden had then commenced to kick her, slap her and punch her. The daughter had been sitting on the couch, watching a DVD when she had begun to be slapped. 69. Whilst describing these events Ms Kaufman became visibly distressed. When I had asked Ms Kaufman if she could show me by slapping her hands together how hard she says she was slapped, she became more distressed and indicated that she couldnt do that, she couldnt bring herself to do it, but indicated again she had been slapped to the face. She suggested, and went on, that she was punched, kicked repeatedly, dragged into the bedroom and sexually assaulted. The detail given by Ms Kaufman in her police statement suggests that Mr Heiden had sat upon her with his knees on her shoulders and placed his penis in her mouth before he had then engaged in vaginal intercourse with her, ejaculating inside of her, before rolling off her and going to sleep. When Ms Kaufman was asked if she had screamed during these incidents, she indicated that she had not, she had not said anything, and that she had been endeavouring to not make a fuss so as to not alert the children to what was happening and cause them further distress. During the course that these events were occurring in the bedroom, it was suggested that her daughter remained watching a DVD in the lounge room and her son remained also in the lounge room, he then being a child not yet able to walk or talk. Ms Kaufman gave a detailed description of her injuries: bruises to her thighs, arm, face and ears. She attended the police, she attended a doctor. Forensic evidence was taken in the form of photos and the like. Ms Kaufman was asked by the Independent Childrens Lawyer how many times she had been assaulted. She had replied, More times than I can remember, many times. When asked when the assaults had begun, she had indicated it was hard to say, that it started by just poking me in the chest, then slapping me and pushing me, and then more and more, and worse and worse, and more often.
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It was suggested that while she was pregnant with the first of these two children, she was beaten, including being kicked repeatedly while on the ground, including in the stomach. It was suggested that on one occasion, again while she was pregnant, and while she was cooking a meal for 16 men who had been invited to the home by her husband, that Mr Heiden had taken a pot of boiling water and tipped it across her arm, scalding her. She indicated that she had not been to a doctor or the police but had gone and had a cold shower to deal with the injury. The manner in which Ms Kaufmans evidence was given was detailed, compelling, and I accept it. I accept that Ms Kaufman was assaulted in the manner that her evidence dictates on 6 July 2008. I accept Ms Kaufmans evidence that that was not the only occasion on which she was assaulted. It is suggested in submissions by Mr Heiden that he has never done anything to hurt his wife and he has never been anything other than a good father and good husband. To the extent of being a good husband and the assertion that he has never done anything to harm his wife, I simply do not accept that, and indicated to Mr Heiden in submissions that as the evidence sat, particularly in relation to the Local Court convictions, that I would have some difficulty accepting that proposition. No response was provided. Again, Mr Heiden has not cross-examined Ms Kaufman with respect to any of her specific detailed allegations of assault and family violence. This is a case in which one is not left to struggle with the quandary of behaviour that is described but which does not all fall within the narrow definition presently contained within s.4 of the Act. Family violence is described in the legislation, and so defined as: conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the persons family that causes that or any other member of the persons family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
75.
76.
77.
78.
I am satisfied that family violence is established in this case within the section 4 definition. Lest I am wrong in that regard, I note in any event that s.60CC sub.s.(3)(m), as well as s.65DAA sub.s.(5)(e), permit the Court to take into account such other matters as the Court considers
relevant. In that regard, I am satisfied that the behaviours complained of by Ms Kaufman, which go well beyond physical assaults, which could not be other than included within the s.4 definition, but extends to and includes matters such as: a) Control of all finances, including holding her keycard. That much is corroborated to some extend by Mr Heidens own affidavit evidence that suggests, in the first affidavit filed by him in the proceedings when he was legally represented, that the only communication he had had with Ms Kaufman immediately after separation on 7 July 2008 was a conversation whereby Ms Kaufman requested that he take her keycard and withdraw the rent that was then due from her bank account. Accordingly, there can be no controversy that this was a circumstance as alleged by Ms Kaufman which was so. That Ms Kaufman was required to dress in a particular fashion, wearing a najib or a burqa, however so described, and so that she was entirely covered and to show no part of her person, and also to behave in such a manner when around males other than her husband such that she would be segregated from and not communicate with any of those persons. That again is consistent with Articles 113 and 114 of the draft constitution of the organisation which is an exhibit in these proceedings; and: That Ms Kaufman was not permitted to leave the home other than with her husbands permission or to have people attend at the home other than with his consent and approval.
b)
c)
79.
The evidence given by Ms Kaufman continued in similar vein regarding issues of violence. But her evidence also touched upon the same issues that Mr Heiden has talked about and which Ms Kaufman had given evidence of in her affidavit material, being the views held by Mr Heiden, the reciting of duas, with respect to a desire for one or both of the children to be taken as maryts before puberty, taken in the sense of death, and so that both parents could honourably enter heaven. Those are matters that, in my mind, have no connection with the faith of either of these parents at any point in time. They are matters that are simply an issue of psychological or emotional fragility for
80.
Ms Kaufman. And potentially, and to the extent that I am satisfied that Mr Heiden has a genuine desire, and a genuine acceptance that violence such as perpetrated by other individuals in videos and as described in pamphlets that he has referred to in his own evidence, the execution of non-believers, the execution of captives and hostages in Iraq and in other circumstances, and the carrying out of suicide bombings is acceptable. There is no basis in the Koran, or in any other belief system that is fundamentally based in rational logic or human compassion that would make such actions explicable. 81. Ms Kaufmans evidence is that not only would Mr Heiden watch these executions and suicide bombings, predominantly by accessing a particular website named by her, but that she would be required to watch these with him, and that if she did not she would be physically attacked, punched, slapped and kicked. That she would cry whilst watching them as they were so disturbing, and if she did so cry that Mr Heiden would slap her face; that the younger of two children, [X], would also watch these videos with her father. Her father would sit her on his lap, would watch the videos with her. If she became distressed he would slap her; that he would have her singing along, singing the Jihadi song that accompanied each of the videos, and that she, even after separation continued to sing the song, although some months after it no longer spoke of them. Perhaps the most concerning aspect of the matter is the potential impact which one can infer upon [X], not only of those videos, but the other behaviours by her father towards her mother. In that regard I return to the submission put by Mr Heiden that he has been at all times a good father. It is suggested that [X] said to her mother after separation that she remembered her mother being hit by her father and talked of that for some months after separation had occurred. I accept that this was so, and that being the case, find it very difficult to accept the submission put that nothing has ever been done by Mr Heiden to these children. Whilst I whole heartedly accept he is not a parent who has abused his children in any physical or sexual sense, the proposition cannot possibly stand or stand the test of logic. Ms Kaufmans evidence also was clear in relation to her mental health. She conceded that she had had a number of issues arising from her
82.
83.
childhood, and her parents and their treatment of her and her interaction with them, which had caused her to seek out counselling and to need it at the early parts of her relationship with Mr Heiden. She made clear that at this point in time she continues to see a counsellor, a psychologist on a weekly basis, continues to take medication, has been diagnosed with post traumatic stress disorder and generally finds some real comfort and assistance from the support that she receives from psychological counselling and medication. 84. Otherwise, however, another disturbing and troubling aspect of Ms Kaufmans evidence is that she, if faced with having to deal with matters from her past relationship with Mr Heiden, has some real difficulty. She expresses anxiety, fear and being scared. She expressed, when asked questions regarding the efforts she could make to have the children have an appreciation of, not only their Islamic faith, from their fathers perspective, but also their fathers Arabic and Palestinian culture, that she would like, for instance, to teach her daughter, [X], to cook Arabic food, but that she is not in a position yet to do that, as she, herself, whilst she enjoys Arabic food and enjoys cooking it, has not, since separation, been able to bring herself to do so, without flashbacks and other emotional disturbance. Otherwise, Ms Kaufmans evidence, that in preparing for and leading up to this hearing, and the prospect of dealing with the hearing itself and the possible orders that might be made by the court, that she has experienced trouble sleeping. When she slept she has had nightmares that have awoken experiences of disassociation, flashbacks and involuntary vomiting on a daily basis. They are all, in my mind, clear and manifest incidences of the impact that interaction with, the potential for interaction with, or the potential for her childrens interaction with Mr Heiden will have upon this parent into the future. Overall, as would be clear from the above, I am satisfied that where there is dispute and controversy between the evidence of Mr Heiden and Ms Kaufman, that I would prefer the evidence of Ms Kaufman, and I accept it in its totality. There has been no serious challenge to her evidence. Again, I accept that this is in the context that Mr Heiden is self-represented, and certainly today, when he has cross-examined Ms Kaufman, has been self-represented.
85.
86.
87.
However, the concerns that I have in relation to Mr Heidens evidence, as I have previously referred to, are that he has been evasive in answering matters that I am satisfied he is clearly aware and not of assistance to his case, and that he has been clear to focus issues of criticism upon Ms Kaufman, which more recently, and perhaps more relevantly can be, focuses of criticism upon him. These matters do him no credit at all. Overwhelmingly, the Browne v Dunn (1893) 6 R 67 (HL) inference that must arise from the absence of any cross-examination on the relevant portions of Ms Kaufmans case, particularly regarding domestic violence, even though Mr Heiden is self-represented, cannot, in my mind, be overlooked. They were simply avoided, and in his own evidence entirely denied. But then somewhat insulting and puerile attempts made to minimise, or legitimise anything that did occur. At one point in time, Mr Heiden gave a demonstration of stroking from his shoulder to his elbow, as demonstrating that this was the manner in which he had physically chastised his wife on the few occasions that she had needed it. And the evidence, to which I have already referred, that the slightest touch, because this woman was delicate of body, would leave bruises, even though he suggested that he had never engaged in any activity that could possibly have caused bruises, notwithstanding his convictions for same by a Local Court of New South Wales. For all of those reasons I am perfectly satisfied that there has been domestic violence perpetrated in these proceedings, which will have profound impact, no doubt, upon the outcome of the matter.
88.
89.
90.
Issues in dispute
91. I wish to, again, emphasise that this is not a case in which either Islam or the political beliefs of the organisation to which the father belongs, so described by its website, its draft constitution as tendered into evidence, is at all relevant. Each of these parents, during their relationship, engaged in the Islam faith. For the entirety of their relationship with each other they both were devout practitioners of Islam. Indeed, the evidence adduced orally
92.
today by two witnesses, in Mr Heidens case, being a husband and wife who are friends and associates of Mr Heiden, would suggest, if I was to accept their evidence and to some extent I do that indeed, during the relationship and their knowledge of this couple that Ms Kaufman was the more devout of the two. That is suggested certainly by Dr Js evidence, on the basis that as a recent convert she perhaps had lacked direction, had not engaged the subtlety and nuances of the faith that would have applied had she been brought up in it, rather than having come to it later in life. 93. However, his evidence is telling in a number of respects: firstly, he is very clear in the fact that he has never engaged in a conversation with Ms Kaufman, and accordingly inference is the highest that I can place his statement that she was more strict, or rigorous, or perhaps more fundamental in her interpretation of Islam and practice of it. Secondly, Dr J had clearly indicated two matters which I find most peculiar in his evidence: firstly, he indicated he had never been introduced to Ms Kaufman by her husband, being his friend, Mr Heiden. That, in my mind, would suggest perhaps some cogency to the suggestion that Mr Heiden was, in fact, the more ardent subscriber to inflexible practices of faith. It is, of course, Ms Kaufmans evidence that requiring such practice to be entirely veiled, to be entirely separated from males, to not raise her voice or speak with or in the presence of other males etcetera was part of Mr Heidens control of her and, indeed, part of his general character rather than something she voluntarily ascribed to. Secondly, Dr J, did not at any point suggest that Mr Heiden had raised any concern or criticism other than on one occasion when he had suggested that Ms Kaufman was reading certain books which gave her dangerous ideas. That is something Mr Heiden had referred to in his evidence and, indeed, in relation to an earlier separation of the parties, albeit very brief, in 2005 when it was suggested that Ms Kaufman had left a letter for him explaining why she had left and whilst Mr Heiden had not gone into any detail in his affidavit and, in fact, had declined to do so, in cross-examination indicated that Ms Kaufman had suggested, as a consequence of these same dangerous ideas, that she was of the view that Mr Heiden was no longer a good Muslim. He suggested the letter had indicated that he was not following the correct Islamic faith;
94.
that she had got to know another group that he had issues with and that she was, as a consequence of the influence of that group whom his evidence suggested was causing troubles in their relationship, had said that his faith and his practice of faith was not correct. 95. That is consistent with Ms Kaufmans evidence, which I accept, that she had been, whether cajoled or compelled by Mr Heiden to engage with [H], that by early 2005 and on a subsequent occasion a few months after that, she had formed the belief that their views were extreme and that they were contrary to her understanding of Islam. Indeed, that is probably to the extent that Islam has any relevance at all to this group or not; an issue not for this court to examine but for Mr Heiden to examine as to whether that group and its ideologies, which would appear to be largely stimulated and reflective of hate and a lack of appreciation or respect for human dignity or life, are reflective at all of the teachings of the prophet. They are not the issues in dispute and to the extent that matters arise from membership of that group or otherwise, it is in relation to the views that have been expressed, the views that are held and the denial by Mr Heiden that he holds such views in circumstances where I am anything but impressed or accepting of his denials.
The Legislative Framework

96. The Full Court has been clear in cases such as Goode & Goode (2006) FLC 93 286 and Marvel & Marvel [2010] FamCAFC 101 that the legislative framework that the Family Law Act 1975 now provides and has done since 2006 should be followed in all cases and this is so irrespective of the beliefs that is adhered to by each of the parties. A starting point is the proposals raised by each of the parties but the court is not, as the High Court made clear in U & U (2002) 211 CLR 238 bound by those proposals. In this case, as I have indicated, Mr Heidens proposals are largely set out in paragraph 60 of his affidavit. He seeks to be able to see the children on a weekly basis, to raise the children in the Islamic faith, to admit the children to an Islamic school. He goes so far as to indicate he is prepared to pay the extra cost to see that this is possible that is, to say, notwithstanding that for the nearly three years since separation child support has not
97.
been paid and, indeed, Ms Kaufman to her credit, has indicated she would prefer not to receive it. 98. Mr Heiden also seeks that Ms Kaufman and the children be compelled to return to the Sydney area to live; that Mr Heiden would then pay child support and that the children also spend school holiday time with him. In addition to that, it is sought that there be a period of six weeks at the end of each calendar year for the children to accompany Mr Heiden to Palestine to visit relatives and family members and engage in their culture. I hasten to add, it is not suggested for one moment that engaging in their Palestinian culture, a rich culture which is ancient and predates the establishment of the present state of Israel, is in any way a negative for these children. But as I have indicated, I am conscious that AlNakba is very much to the forefront of that which is asserted and believed by Mr Heiden. Accordingly, that is of some concern in relation to Mr Heidens relationship with the children, not their engagement in the Palestinian culture. The proposals that are put by the Independent Childrens Lawyer, and consistent with and ultimately adopted by Ms Kaufman, are as set out in Exhibit ICL3. It provides that the there be sole parental responsibility with Ms Kaufman, that the children live with her, that the children remain subject to an airport watch-list order, as they presently are on an interim basis and until the age of 18 years and that the only communication that occur between the children and father be by written form. Having considered and identified the parties proposals, I am required to turn to s.60CA of the Act and to be reminded that the childrens best interests must at all times be the paramount consideration. I am then required to turn to and consider the objects and principles set out in s.60B of the Act. The objects and principles are largely consistent with portions of the International Convention On The Rights Of the Child, not all of which have yet been enacted into domestic law, but cases such as Mabo v Queensland [1988] HCA 69; (1989) 166 CLR 186 (8 December 1988)
99.
100.
101.
102.
103.
and Minister of Immigration v Teoh (1995) 183 CLR 273 make clear are the basis, whether enacted in domestic legislation or not, to inform legislation which does touch upon the same subject matter. 104. In any event, the objects and principles are clear in their terms and provide that the court should endeavour to make orders that will ensure that the best interests of children are met by: a) Ensuring the children have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests; Protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence; Ensuring the children receive adequate and proper parenting to help them achieve their full potential and; Ensuring that parents fulfil their duties and meet their responsibilities concerning care, welfare and development of children.
b)
c)
d)
105.
The principles underlying the objects are set out in sub.s.(2) and deal with the childs right subject to it not being contrary to their best interests to know and be cared for by both of their parents, to spend time on a regular basis and communicate on a regular basis with both parents and other people significant to their care; that parents should share duties and responsibilities for the care of the children; parents should agree about future parenting and the children have a right to enjoy their culture, including a right to enjoy their culture with people who share that culture. I am then required to turn to s.61DA and to determine whether the presumption of equal shared parental responsibility applies and if it does apply, whether it is rebutted. Sub.s.(1) of s.61DA provides for the presumption. Sub.s.(2) provides two circumstances in which the presumption does not apply, being circumstances where the court is satisfied that a parent has engaged in abuse of the child or another child who is a member of the household, or family violence. As indicated and would be apparent from the above, I am satisfied and I have found that family violence has occurred. I am satisfied that
106.
107.
absent any finding made specifically by me, based on the evidence of these parties, that I would be entitled to find that the presumption does not apply based on the findings already made by the Local Court Magistrate in giving rise to the two convictions which are not in dispute. Section 69ZX of the Act allows and permits the court to have regard to transcripts and outcomes of previous proceedings in such manner as the court considers appropriate. Based on the findings I have made I am satisfied afresh of family violence. 108. Lest I am wrong in that regard, I am satisfied, in any event, that the presumption would be rebutted in accordance with sub.s.(4) in that I cannot be satisfied that it is in the best interests of these children for their parents to continue to have equal shared parental responsibility for reasons that I will expand upon shortly. As the presumption does not apply, I am not mandated to consider equal or substantial and significant time as provided by s.65DAA sub.ss (1) and (2). However, nothing precludes me from considering such time arrangements should I wish to do so. In any event, in determining any time arrangement to be ordered, as dealt with in sub.s. (4), I am required to consider the dual test of reasonable practicality as set out in sub.s.(5) and the test of what is in the childrens best interests as set out in s.60CC. Dealing firstly with reasonable practicality, although that is a somewhat unusual course, as has been remarked by the Full Court and perhaps more eloquently stated by Murphy J in Pitken & Hendry [2008] FamCA 186 the most usual course would be to consider matters of reasonable practicality as part of the s.60CC considerations. However, in this case, I am satisfied that I can adequately dispel any serious consideration of equal or substantial and significant time by having regard to reasonable practicality. Whilst it is raised in Mr Heidens the orders proposed by Mr Heiden in his affidavit filed 15 March 2011 that he seeks an order that the children and their mother be required to return to live in the Sydney metropolitan area, I am not satisfied that I can or should make that order, irrespective of any other order that I might make.
109.
110.
111.
112.
Firstly, that is an issue that has been added to these proceedings with an absence of procedural fairness to Ms Kaufman by being included as a subparagraph of a paragraph in Mr Heiden's affidavit in support of his application and at a time when the proceedings had already listed for hearing and the issues to be determined clearly defined. To that extent I am satisfied that Mr Heiden would require leave to seek such relief. And in the circumstances no application has been made, nor would any be granted. In any event, even if such application were properly before the court, I am satisfied by reference to authorities such as the Full Court's decision in Bennett & Bennett [2001] FamCA 462 that I have no power to make an order compelling Ms Kaufman to live anywhere other than as a function of making parenting orders. I have not been asked at any time previously in these proceedings to disturb Ms Kaufman's present place of residence, wherever that may be, that is not known to Mr Heiden or, indeed, to the Court. On the basis that these parties live, as I understand it, interstate from each other, I can be satisfied that these parents live too far apart for any time arrangement that provided for equal or substantial and significant time to be practical. That is, without even having to have regard to the parents' current or future capacity to implement that arrangement or the complete absence of any current or future capacity to communicate with each other or resolve difficulties, there is no dispute on the evidence between these parties that there has been no communication or, at best, two voice mail messages left by Mr Heiden on Ms Kaufman's mobile phone, now changed, in the nearly three years since separation. Similarly in the proceedings there is no real explanation by Mr Heiden as to the delay in his commencing proceedings. Clearly there was an apprehended domestic violence order in force for a period of 12 months which precluded Mr Heiden contacting Ms Kaufman by any means whatsoever including through third parties and save through legal representatives. Mr Heiden was, when these proceedings commenced, legally represented and there has been no explanation as to why he did not take more immediate action to commence proceedings. That aside, however, I am satisfied that it would not be reasonably practical in the event that I was either wrong as to the non-application
113.
114.
115.
of the presumption of equal shared parental responsibility or if I were to consider substantial and significant time or equal time of my own volition that it could not work and could not be in the interests of nor of benefit to these children, having regard to the evidence before me. 116. In dealing with s.60CC I am required to consider the primary considerations of the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. There are a number of particularly significant issues that relate to the primary considerations. Firstly, as remarked Carmody J in Dylan & Dylan [2007] FamCA 842, the primary considerations are not more important than the additional considerations. Indeed, there are circumstances in which the additional considerations may well not only inform the primary considerations but outweigh them. Secondly, the primary considerations are not ranked in any order of priority. Accordingly, notwithstanding much current misinformation in popular debate there is no prioritization of the benefit to a child of having a meaningful relationship with a parent over and above the child's protection. Indeed, such an argument is a nonsense. The Act of by its own description does not prioritise or suggest that there should be any prioritisation. Secondly, the first of the primary considerations, first chronologically and in no other manner, is the benefit to the child of having a meaningful relationship with both parents. It is thus clear that there must firstly be found to be a benefit and, secondly, that the focus is not upon one parent's relationship with the children but both parent's relationships. In many cases, and I find that this one, those relationships are inextricably linked with the child's best interests and indeed each parent's relationship with the child is interlinked with the others. In this case I am satisfied and the evidence does not in any way suggest any other possible finding that these children have a meaningful and important relationship with their mother, Ms Kaufman. I cannot be satisfied that the children presently have a meaningful relationship with their father, Mr Heiden. That is so as the youngest of these two children, [Y], was about eight months of age at the time of separation
117.
118.
119.
and has otherwise not seen, spoken with or had any time with his father. Accordingly, I am satisfied he would have no recollection of his father other than as a concept. He is no doubt aware that he has a father. Ms Kaufman indicates that he is so aware and I accept that. He would be aware of that from discussion with others at day care which he attends but specific knowledge of his father such as to find that he presently has a meaningful relationship is absent. 120. Secondly, I am satisfied that the findings that I have made with respect to family violence and other behaviour including engaging the elder of these two children, [X], in watching videos of executions and suicide bombings at the very least is suggestive that the child's relationship with her father would have had some difficulty at the time that it was terminated. A relationship as described by Brown J in Mazorski & Albright [2007] FamCA 520 is meaningful when it holds true and genuine importance to both the child and the parent. I wholeheartedly accept that Mr Heiden's relationship with his daughter and indeed his son is meaningful and important to him and I don't for one moment, as was conceded in submissions on behalf of Ms Kaufman, doubt his love for his children. Now whether I have some significant concerns regarding his insight and his ability to appropriately engage and parent his children accepting as I do Ms Kaufman's evidence that [X] at least was sat upon her father's knee being taught to chant enthusiastically and joyously over the death and mutilation of other human beings, whether of the Islamic faith or otherwise is of no concern either to me or to the Koran, to chant songs and to otherwise engage and be trained by a parent for that after all is the activity that was being engaged in at that time. The parenting and education of [X] to hate and to accept as appropriate and normal such abhorrent and completely vile behaviour irrespective of whom it is performed by or which historical injustices or present circumstances may give rise to such desperate actions is manifestly inappropriate. This child is so far removed from those aspects of what I accept from Mr Heiden's evidence is part of his perception of his Palestinian heritage and culture and the legacy of Al-Nakba that she need not and should not be exposed to such behaviours or even at that age aware that they occur.
121.
122.
123.
That is also to leave aside the evidence that I accept about the Duas being pronounced with respect to each of these children. I struggle to understand how a parent could possibly derive any joy from the thought of a childs death, let alone enter into a prayer or plea to have a child taken from them when so many parents in so many societies, including the present day Palestine - the very society from which Mr Heiden derives experience that pain. I accept the present and historical injustices to which that community has been subjected for I accept his evidence that indeed the Palestinian community is subjected to substantial injustices including an inflated and unacceptable rate of infant death whether by malnutrition or other avoidable causes, let alone warfare. How that he could wish for his child to be taken from him when so many of the people from his culture do not desire to have their children taken but they are taken anyway again beggars belief and causes me to have some real concern about Mr Heiden's parenting. But in any event, the primary consideration of the benefit to the child of having a meaningful relationship with both parents, in my mind inherently attaches to the very basis of Mr Heiden's case. He asserts that Ms Kaufman is a person who is psychologically or psychiatrically ill or unstable. He suggests that this has nothing to do with him. That whilst Ms Kaufman asserts that her diagnosis of post traumatic stress disorder relates at least in some small part to her relationship with Mr Heiden, that he is not to blame in any fashion. That may be so. Whether he is to blame as the causer of symptoms or otherwise in my mind is largely irrelevant. What is abundantly apparent from Mr Heiden's own case, let alone Ms Kaufman's concession in her case, is that she is a woman of particular vulnerability. She has had through no fault of her own, I hasten to add, but perhaps through the fault of those seized of her care, a poor start to life which has predisposed her perhaps to some fragility at least emotionally. She has experienced counselling in relation to that and in accordance with her evidence is presently taking medication, having weekly psychological counselling and other supports and has demonstrated through her evidence the impact that even having to face the consequence of these proceedings has upon her function. In those circumstances, noting that this parent has been the sole parent, and again that is not through Mr Heiden's choice or actions but simply a reality, for nearly three years, being nearly all of [Y]'s life and half of
124.
125.
[X]'s life, to suggest that her fragile existence should be impeded or in any way prejudiced cannot be countenanced. 126. Because the Act does not focus upon Mr Heiden's meaningful relationship with the children even if I were to accept that there is one or in the foreseeable future any prospect of one being developed or maintained but upon the benefit to these children of a meaningful relationship with both parents, and I am satisfied that any attempt to move forward or to attempt to engage in the establishment of a relationship, and it would not be meaningful for a very long time, between these children or either of them and their father, would have the effect of undermining potentially, but I accept in reality, the meaningful relationship that presently and already exists between these children and their mother. As such, this case whilst not involving any allegation of direct alleged abuse of these children by their father, (although I am satisfied certainly that the behaviours complained of by Ms Kaufman in her evidence which I accept would fall within the definition at least potentially of child abuse as set out in s.4 of the Act, as abuse includes an assault of a child which is an offence under the law or a person involving a child in a sexual activity), there is at least the beginnings of that in what is described by Ms Kaufman in the actions of 6 July 2008 but I am not required to make any specific findings in that regard and accordingly I do not. But whilst this case is absent any allegation of direct physical or sexual abuse by Mr Heiden of either of these children, and again absent the suggestions by Ms Kaufman regarding [X] being slapped when she doesnt respond joyously or is upset by the video she has been made to watch of executions and the like, it is in my mind analogous to case in which there is a real issue as defined by the Full Court in Johnson (2007) FLC 93 344; [2007] FamCA 1235 of an unacceptable risk. I have already made findings that there has been family violence. I am satisfied that if Ms Kaufman were to come into contact with Mr Heiden, that there would be I am satisfied an unacceptable risk that there would be an assault upon her. More importantly, I am satisfied that there is an entirely unacceptable risk that having to deal with any arrangement for time, let alone direct physical
127.
128.
129.
130.
contact between these parents (as Mr Heiden had suggested in his questioning of Ms Kaufman that some third party may be able to facilitate changeover) would so undermine Ms Kaufman and her psychological and emotional health as to pose an unacceptable risk not only to her functioning but as a consequence her meaningful relationship with the children and her care of these children their health. Such a test as is often referred to, requires a sliding scale or the Briginshaw scale. 131. The Briginshaw scale now is codified in s.140 of the Evidence Act 1995 and I am satisfied to the extent that I have expressed the concern as to an unacceptable risk to Ms Kaufmans psychological functioning and accordingly capacity to parent these children if she were required to engage in any arrangement with Mr Heiden that: a) Such risk is established to a sufficient and requisite level as to constitute an unacceptable risk that I am not prepared to take; and The benefit that would be derived or potentially derived by these children of such engagement would be wholly outweighed by the potential detriments to them, particularly the impact upon their mother, and importantly, the risk of these children being exposed to denigration of their mother and/or a flight risk.
b)
132.
An important issue again arises from Mr Heidens evidence regarding apostasy and the fact that Ms Kaufman has left and abandoned the Islamic faith to which he continues to adhere. A glimpse of the attitude towards that is gained from perhaps the only helpful aspect of the evidence of Ms E who had indicated, in response to the closing questions put to her by the Independent Childrens Lawyer, that faced with the reality that Ms Kaufman had left and abandoned the faith and would not bring up these children in the faith that the children really would be better off living with their father. That is again consistent with Article 118 of the draft constitution of the [H] organisation of which Mr Heiden is an adherent, which makes clear that if a child has a parent who is not of the faith that the child must live with the parent who is of the faith and I wholeheartedly accept that the constitution and its portions which were in evidence before me reflect the views that a genuinely, firmly and to his death held by Mr Heiden.
133.
134.
In those circumstances, I cannot be satisfied that the first of the primary considerations is made out. Again, lest I am wrong in that regard I am satisfied that there remains a need to protect these children from at least psychological harm and from being exposed to family violence as I am satisfied has occurred in the past or neglect; a term not defined within the legislation but which I am satisfied would at least have the potential to arise or a term that would potentially be applicable to that which would arise in the event that Ms Kaufman, as I am satisfied she would be, would be so psychologically undermined and interfered with as a consequence of any orders which imposed a time arrangement. In relation to the additional considerations, I note the following: a) Views:The only evidence I have of the childrens views is the evidence of Ms Kaufman that the youngest of these two children, [Y], does not remember his father. [X] in the early stages of separation remembered her father but in the negative context of perpetrating violence against her mother and generally being angry and that in more recent times whilst provided with a framed photograph of her father, has chosen not to have it on display. Ms Kaufmans evidence is that neither of the children has expressed a desire to see their father or speaks of him. I do not place any great weight upon that as suggesting these children have an adverse view in relation to their father but simply that they will not by references to cases such as R & R: Childrens Wishes [2000] FamCA 43 suffer a negative or adverse reaction in the event that they were deprived of the opportunity to commence a relationship. The nature of the childrens relationship with each parent and any other person. There is no suggestion that either of these children have any engagement with extended family. Ms Kaufman is largely disengaged from her extended family and Mr Heidens extended family resides in Palestine. Whilst it is a large extended family, there is no suggestion that they have ever had any engagement or involvement with these children. The childrens relationship with their mother is, at present, excellent and she is their primary and sole parenting figure and has been for some three years, which in the case of [Y] is nearly all of his life. I am
135.
b)
satisfied that there is not presently an enduring relationship of any nature between the children and their father. c) Willingness and ability of each of the childrens parents to facilitate a close and continuing relationship. Ms Kaufman is criticised as she is clearly not willing to promote, facilitate or encourage a relationship between these children and their father beyond a familiarity with him through photographs and correspondence which she concedes. However, whilst sub.s.(c) is often referred to as the friendly parenting consideration, it is a consideration which must be dealt with in a context. If a parent for reasons which are wholly unreasonable, wholly focused upon their own needs, spiteful or otherwise, expresses no desire or willingness to facilitate or encourage a relationship with the other parent that is a matter for which that parent can and rightly should be criticised see cases predating the amendments such as Re David (1997) FLC 92 776. However, in this case, I am faced with a litigant and a parent, Ms Kaufman, whose evidence I accept as having been repeatedly assaulted and raped by the other parent, to expect her to do other than to react as she has by taking herself and concealing herself and the children in a place of safety and in circumstances of safety and thereafter in the context of her being diagnosed with post traumatic stress disorder being concerned and moved to the point of physical if not emotional or psychological illness by contemplating the thought of the childrens engagement with their father, is entirely reasonable. The likely effect of any change in the childrens circumstances. Change is not always a negative. Change can be a dramatically positive experience for a child. In this case, however, I am not satisfied that any change to the present arrangement would be positive. It would expose these children to the risk of losing the only carer they have ever known; that Mr Heiden on his own evidence concedes that these children have always been primarily parented and cared for by their mother notwithstanding his criticisms that she didnt always do so as well he would have liked or as well as she could have if she was not unwell at the time, without even having to turn my mind to a finding as to why she may have been psychologically depleted at different points in
d)
the relationship and has since separation been their sole carer, I am not prepared to balance the potential negatives particularly flowing from the impact that would arise in relation to Ms Kaufmans relationship with the children and her capacity to parent them against the tenuous and very experimental potential benefits. e) Practical difficult and expense. I have previously dealt with these parents live in different States. Mr Heiden does not know and will not know at the conclusion of these proceedings Ms Kaufmans address or the name by which she and the children are now known. Indeed, they are not known to the court nor has the court sought to obtain that information. The capacity of each of the parents to provide for the childrens needs, including emotional and intellectual needs. I have no doubt that Ms Kaufman is perfectly able to, has and will continue to meet these childrens physical, emotional and intellectual needs. I have real concerns for the reasons I have expressed above as to Mr Heidens capacity to do so. That is in no way connected with his faith or his membership of the group to which I have referred. It is connected with the underlying dysfunction in his view of the world which has no basis in Islam at all. It has a basis in whatever disturbance he finds in a cultural or other perspective from the consequence of Al-Nakba and otherwise represents a most destructive and hateful view of the world, and I am not prepared to have that imparted to these children in the circumstances Ms Kaufman has described had already commenced before [X]s third birthday. g) The maturity, sex, lifestyle and background of the children. These children are incredibility young, vulnerable, and in need of the best parenting they can receive and adequate protection of their childhood. I am satisfied that the matters to which I have referred as engaged in by Mr Heiden would deplete these childrens innocence and their healthy, safe childhood and that any exposure of them, or more particularly Ms Kaufmans exposure to having to engage in arrangements with Mr Heiden, would undermine her psychological functioning in a fashion
f)
which I am satisfied is not presently undermined, and to the extent that it is problematic is supported and addressed, in a manner that would be detrimental to these children. h) Clearly the children are not of an Aboriginal or a Torres Strait Islander background. However, their culture, in connection with the above paragraph is of some relevance. Whilst it is regrettable that these children cannot, as Mr Heiden has expressed continuously they should have the benefit of having, an engagement and a real, deep, profound relationship with both parents. That is not a right of a parent, and indeed, it is a right of a child consistent with the objects and principles of the legislation and the International Convention on the Rights of the Child, but tempered against it being found to be in their best interests. And in this circumstance I am conscious that safety must outweigh any potential benefit that these children would have from being exposed to the deep, rich and profoundly ancient culture of Mr Heidens Palestinian heritage. The attitude to the child and the responsibilities of parenthood demonstrated by each parent. This is largely dealt with by the above findings, but I am appalled by the evidence that I accept of Ms Kaufman as to Mr Heiden engaging in seeking to encourage and inculcate in these children an acceptance of violence as a means of resolving any issue, particularly violence that is engaged against non adherers to a particular belief system and by people in acts of faceless and nameless violence. Any family violence involving the child or a member of the childs family. My findings with respect to the above are manifest and must outweigh any potential benefit of attempting a relationship. And I accept that there is a potential benefit but that is all there is for these children having an engagement with their father, let alone a meaningful relationship which would be many years away and surrounded by so many difficulties and problems that it would be difficult to image that point would ever be reached. Any family violence order. There is none although one has previously existed but is now expired.
i)
j)
k)
l)
Whether it would be preferable to make orders that will least likely lead to the institution of future proceedings. I am satisfied that any order that I made today, whether it is against Mr Heiden or against Ms Kaufman, will be appealed. Each has made such clear in their evidence. I cannot avoid what these parties wish to do in relation to exercising their appeal rights. However, I can be satisfied that the orders that I make must be sustainable, must meet these childrens best interests and will most likely avoid future conflict and future issue between these parties. I am satisfied that if I made any order which attempted to instigate a regime of time between these children and their father that: i) It would not be focussed upon endeavouring to develop a meaningful relationship but would be, at least in the short term, be best described in the terminology of the care jurisdiction as identification contact; and Would be attended by so many difficulties that they must crush the potential benefit that could possibly arise, although I am not at all satisfied would arise in reality or to the extent that the relationship began to develop would not necessarily be a healthy, functional or meaningful relationship.
ii)
136.
For all of those reasons, I am satisfied that the orders proposed by the Independent Childrens Lawyer are by and large the only orders that I can make that will adequately, appropriately or properly address these childrens safety, these childrens primary care and placement in their mothers care and protect and preserve the one meaningful relationship these children presently have with a parent, being the relationship they have with Ms Kaufman which I am satisfied would be dramatically undermined and put at risk by any other order.
I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of Harman FM Date: 20 May 2011

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

HEIDEN & KAUFMAN [2011] FMCAfam 478

Heiden & Kaufman [2011] FMCAfam 478

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Parramatta 15 April 2011

Ms Smith Parker Kissane & Gibson

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FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA PAC 3161 of 2009

REASONS FOR JUDGMENT

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The Legislative Framework

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