Heiden & Kaufman [2011] FMCAfam 478

8/3/2019 Heiden & Kaufman [2011] FMCAfam 478

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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


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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).



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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.



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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



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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.

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



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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.

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



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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 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.



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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



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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 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.



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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.



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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.



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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.



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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



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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 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.



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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



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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 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



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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 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



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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.

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.



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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



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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



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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



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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.



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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



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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;



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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



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)



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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



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.



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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



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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



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.



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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



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[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



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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.



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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



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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,

Heiden & Kaufman [2011] FMCAfam 478

Documents

Transcript of Heiden & Kaufman [2011] FMCAfam 478