Upload
familylawdirectory
View
219
Download
0
Embed Size (px)
Citation preview
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
1/39
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 1999Marriage Act 1961
Farmer v Rogers [2010] FamCAFC 253Allesch v Maunz(2000) 203 CLR 172Jones & Dunkel(1959) 101 CLR 298
Browne v Dunn (1893) 6 R 67 (HL)Goode & Goode (2006) FLC 93 286Marvel & Marvel[2010] FamCAFC 101U & 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 273Bennett & Bennett[2001] FamCA 462Pitkin & Hendry [2008] FamCA 186Dylan & Dylan [2007] FamCA 842Mazorski & Albright[2007] FamCA 520
Johnson (2007) FLC 93 344; [2007] FamCA 1235R & R: Childrens Wishes [2000] FamCA 43Re David(1997) FLC 92 - 776
MR HEIDEN
Respondent: MS KAUFMAN
PAC 3161 of 2009
Judgment of: Harman FM
Hearing dates: 14 & 15 April 2011
Date of Last Submission: 15 April 2011
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 1
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
2/39
Delivered at: Parramatta
Delivered on: 15 April 2011
REPRESENTATION
Counsel for the Respondent: Ms Smith
Solicitors for the Respondent: Parker Kissane & Gibson
ORDERS
(1) 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.
(2) 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.
(3) I restrain both parties from making any application in any court exercising
jurisdiction underFamily Law Act 1975 other than the Federal Magistrates
Court, Parramatta, such application to be listed before me.
(4) 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.
(5) I otherwise discharge the Independent Childrens Lawyer with the
courts thanks.
(6) I dismiss all outstanding applications from responses and remove all
issues from the list of cases awaiting hearing.
(7) 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.
IT IS NOTED that publication of this judgment under the pseudonymHeiden
& Kaufman is approved pursuant to s.121(9)(g) of the Family Law Act 1975
(Cth).
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 2
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
3/39
FEDERAL MAGISTRATES
COURT OF AUSTRALIAAT PARRAMATTA
PAC 3161 of 2009
MR HEIDENApplicant
And
MS KAUFMANRespondent
REASONS FOR JUDGMENT
1. These are proceedings involving competing applications for parenting
orders by the parents of two children being Mr Heiden, who is theapplicant father in these proceedings, and Ms Kaufman, who is the
respondent mother.
2. 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.
3. The parties have been engaged in litigation before this court for somelittle 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.
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 1
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
4/39
4. 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 cross-
examination and testing of evidence during the course of these
proceedings.
5. 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.
6. 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.
7. At the time the proceedings were commenced, Mr Heiden was legallyrepresented 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.
8. 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.
9. The issues between these parties have occupied a number of courtevents. The matter had first come before the court on 3 August 2009
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 2
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
5/39
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.
11. 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.
12. 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.
13. 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.
14. 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 beenfixed in the matter vacated.
15. 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
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 3
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
6/39
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.
17. Mr Heiden has relied on each of the affidavits that have been filed byhim 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.
18. 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.
19. 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
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 4
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
7/39
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 alltimes whilst actively directly controlling and managing the conduct of
proceedings, prioritise the childrens best interests as the paramount
consideration.
21. 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.
22. That particularly flows also from the decision of the High Court and in
particular the judgment of Kirby J inAllesch 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 oneexercising 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 sucha 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 ofjustice. 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 opportunitybefore his banishment from Eden.
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 5
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
8/39
23. 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;
b) 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
c) The appearance of fairness in the regard must weigh in favour of
Mr Heiden.
24. 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.
25. There are some aspects of the evidence in this case which are not in
dispute.
26. Chronologically at least the parties agree that:
a) Ms Kaufman is presently 25 years of age;
b) Mr Heiden is presently 32 years of age;
c) The parties met and were married in accordance with an Islamic
ceremony on the day of their meeting, [date omitted] 2004;
d) The parties were subsequently married in accordance with the
provisions of the Marriage Act 1961 on [date omitted] 2004;
e) There are the two children of the relationship as referred to and;
f) Finally these parties separated on 7 July 2008 at which date
Ms Kaufman left the then matrimonial without any notice or pre
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 6
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
9/39
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 ofthese two children, [X] and [Y], and their father.
28. 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.
29. 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
b) 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.
30. Each of the parties in addition to swearing their affidavits have been
cross-examined and at length by the Independent Childrens Lawyer.
31. 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.
32. 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 LocalCourt at [omitted] in February of 2009.
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 7
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
10/39
33. 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.
34. 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.
35. 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.
36. 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. Idont know how it happened.
37. 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.
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 8
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
11/39
38. 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.
39. 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.
40. That is so notwithstanding that the case that has been presented by
Mr Heiden and I make full and appropriate adjustment for the factthat 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.
41. 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.
42. 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.
43. 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.
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 9
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
12/39
44. 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.
45. 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;
b) To provide appropriately for herself without ongoing psychiatric
support and assistance and medication; or
c) To make informed decisions of a rational basis for these children.
46. 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 atwhich 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.
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 10
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
13/39
47. 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 theseproceedings generally.
48. In contradistinction to those issues, it transpired in the cross-
examination 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.
49. 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.
50. 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
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 11
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
14/39
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 systemespoused by Mr Heiden.
52. 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.
53. I am fully conscious of the issues surrounding Al-Nakba and the impact
that this has had upon the entire Palestinian diaspora. I am consciousthat 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.
54. 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 goingforward as shahid or martyrs in the cause of Islam.
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 12
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
15/39
55. 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.
56. 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.
57. 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.
58. 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], whichespouses some great affirmation of the importance of shahid, again Mr
Heidens answers were less than frank, disingenuous and, I am
satisfied, untrue.
59. 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 cross-
examination by the Independent Childrens Lawyer the responses were
not dissimilar.
60. 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 shouldbecome shahid or whether he would have any pride in them if the same
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 13
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
16/39
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 thatevidence, 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.
62. 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.
63. 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
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 14
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
17/39
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 ofdirectly, 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.
65. 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.
66. 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.
67. 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.
68. When asked where the children were, Ms Kaufman had answered thatthe children had been in the lounge room where, indeed, she and
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 15
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
18/39
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.
70. 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.
71. When Ms Kaufman was asked if she had screamed during these
incidents, she indicated that she had not, she had not said anything, andthat 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.
72. 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.
73. 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.
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 16
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
19/39
74. 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.
75. 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 whichshe was assaulted.
76. 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.
77. 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 thatcauses 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.
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 theCourt to take into account such other matters as the Court considers
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 17
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
20/39
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, therecan be no controversy that this was a circumstance as alleged by
Ms Kaufman which was so.
b) 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:
c) 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.
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.
80. 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 aresimply an issue of psychological or emotional fragility for
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 18
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
21/39
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 towatch 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.
82. 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 andtalked 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.
83. 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
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 19
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
22/39
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.
85. 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 childrensinteraction with Mr Heiden will have upon this parent into the future.
86. 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.
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 20
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
23/39
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.
88. 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 ownevidence entirely denied. But then somewhat insulting and puerile
attempts made to minimise, or legitimise anything that did occur.
89. 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.
90. 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.
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.
92. Each of these parents, during their relationship, engaged in the Islam
faith. For the entirety of their relationship with each other they bothwere devout practitioners of Islam. Indeed, the evidence adduced orally
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 21
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
24/39
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 placehis 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.
94. 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 herdangerous 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 theletter had indicated that he was not following the correct Islamic faith;
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 22
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
25/39
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 theFamily 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.
97. 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, notwithstandingthat for the nearly three years since separation child support has not
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 23
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
26/39
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 paychild 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.
99. 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 Al-
Nakba 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.
100. The proposals that are put by the Independent Childrens Lawyer, and
consistent with and ultimately adopted by Ms Kaufman, are as set outin 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.
101. 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.
102. I am then required to turn to and consider the objects and principles set
out in s.60B of the Act.
103. 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)
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 24
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
27/39
and Minister of ImmigrationvTeoh (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 andprovide 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;
b) Protecting children from physical or psychological harm from being
subjected to or exposed to abuse, neglect or family violence;
c) Ensuring the children receive adequate and proper parenting to
help them achieve their full potential and;
d) Ensuring that parents fulfil their duties and meet their responsibilities
concerning care, welfare and development of children.
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 bestinterests 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.
106. 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.
107. As indicated and would be apparent from the above, I am satisfied andI have found that family violence has occurred. I am satisfied that
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 25
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
28/39
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 responsibilityfor reasons that I will expand upon shortly.
109. 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.
110. 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.
111. 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.
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 26
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
29/39
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 inBennett & 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 disturbMs Kaufman's present place of residence, wherever that may be, that is
not known to Mr Heiden or, indeed, to the Court.
113. 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.
114. Similarly in the proceedings there is no real explanation by Mr Heiden as
to the delay in his commencing proceedings. Clearly there was anapprehended 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.
115. 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
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 27
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
30/39
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.
117. There are a number of particularly significant issues that relate to the
primary considerations. Firstly, as remarked Carmody J inDylan &
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.
118. 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.
119. 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 twochildren, [Y], was about eight months of age at the time of separation
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 28
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
31/39
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 wasterminated.
121. 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.
122. 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.
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 29
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
32/39
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 havetheir children taken but they are taken anyway again beggars belief and
causes me to have some real concern about Mr Heiden's parenting.
124. 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.
125. 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 simplya reality, for nearly three years, being nearly all of [Y]'s life and half of
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 30
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
33/39
[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 theforeseeable 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.
127. 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.
128. 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.
129. 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.
130. More importantly, I am satisfied that there is an entirely unacceptable riskthat having to deal with any arrangement for time, let alone direct physical
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 31
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
34/39
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
b) 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.
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.
133. 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 byMr Heiden.
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 32
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
35/39
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.
135. 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 asR & 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.
b) 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
Heiden & Kaufman [2011] FMCAfam 478 Cover sheet and Orders: Page 33
8/3/2019 Heiden & Kaufman [2011] FMCAfam 478
36/39
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 iscriticised 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,