El Kazemde and Hanif

[2014] FamCA 452

FAMILY COURT OF AUSTRALIA

EL KAZEMDE & HANIF [2014] FamCA 452

FAMILY LAW – CHILDREN – Best interests – narrow dispute – father seeks that the mother be restrained from leaving Australia with the children and that she provide him with photographs and progress reports about the children – father’s application dismissed – previous findings that the father perpetrated family violence and sexual abuse – the parties agreed the children would reside with the mother and she would have sole parental responsibility for them – injunctions made precluding the father’s interaction with the children

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 60CG, 61B, 61DA, 62B, 64B, 65D, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 68B, 102PE, 102PF

A & A (1998) 22 Fam LR 756
El Kazemde & Hanif [2013] FamCA 197
Goode & Goode (2006) FLC 93-286
H & K [2001] FamCA 687
H & R [2006] FamCA 878
Hepburn & Noble (2010) FLC 93-348
Marriage of Sedgley (1995) 19 Fam LR 363
MRR v GR (2010) 240 CLR 461
Re Andrew (1996) 20 Fam LR 538
V & V [2001] FamCA 78

APPLICANT: Mr El Kazemde

RESPONDENT: Ms Hanif

INDEPENDENT CHILDREN’S LAWYER: KDB Holmes Solicitors

FILE NUMBER: SYC 8453 of 2007

DATE DELIVERED: 27 June 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Sydney

JUDGMENT OF: Austin J

HEARING DATE: 2 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Mr O’Brien

SOLICITOR FOR THE RESPONDENT: Taylor & Scott

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: N/A

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: KDB Holmes Solicitors

Orders

1. Any and all former orders relating to the following children (“the children”) are discharged:

   (a)       C, born … 2003;

   (b)       F, born … 2003; and

   (c)       G, born … 2005.      

2. The mother shall have sole parental responsibility for the children.

3. The children shall live with the mother.

4. Pursuant to s 68B of the Family Law Act:

   (a)The parties are restrained from causing or permitting the children to spend any time or communicate with the father.

   (b)The father is restrained from entering upon or approaching within 100 metres of:

   (i)The mother’s residence; and

   (ii)Any school attended by any of the children.

5. Pursuant to ss 102PE and 102PF(1)(c) of the Family Law Act, this suppression order prohibits the publication or other disclosure of any information which tends to reveal or identify the locality of the residence of the mother and the children until the youngest child attains his majority.

6. Pursuant to s 68B of the Family Law Act, the father is restrained from procuring any information, or copies of any document, from the Court’s manual or electronic file (SYC 8453/2007) that tends to disclose the locality of the residence of the mother and the children.

7. The parties shall forthwith take all necessary steps to remove the children’s names from the Airport Watch List, and leave is granted to furnish a sealed copy of these orders to the Australian Federal Police to facilitate implementation of this order.

8. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

9. Any and all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym El Kazemde & Hanif has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8453 of 2007

Mr El Kazemde

Applicant

And

Ms Hanif

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. Many years ago these proceedings were initiated between the applicant father and respondent mother to determine appropriate parenting arrangements for their three children. The eldest two children are twins, now aged ten years, and the youngest child is aged nine years. One of the twins is female and the other two children are male.

2. The prominent features of the litigation were the mother’s allegations against the father of his violent treatment of her and his sexual abuse of the children. Because the evidence pertaining to those allegations was so plentiful and so significant to the outcome of the proceedings, it was separately evaluated in May 2013 (see El Kazemde & Hanif [2013] FamCA 197).

3. Findings were then made that the father had committed family violence upon the mother, and further, he had committed acts of sexual impropriety on and with the female child. In addition, it was found the children and the mother remained at unacceptable risk of suffering further harm by reason of their subjection or exposure by the father to abuse and family violence.

4. Despite those findings, as recently as March 2014, the father informed the Family Consultant he still wanted the children to spend substantial amounts of time with him.[1] Whether the risk of harm he posed to both the children and the mother was capable of amelioration, which would permit the children’s retention of relationships with him in some form or other, was therefore expected to be the issue for determination in this hearing. However, the scope of the parties’ dispute narrowed enormously in recent weeks.

   [1] Family Report, para 12

5. The father abandoned his former proposal. He accepted the children would have no relationship with him. Instead, he filed an Amended Application on 13 May 2014, shortly before the final hearing, proposing only that:

   (a)The mother be restrained from taking the children outside Australia; and

   (b)The mother be compelled to periodically provide him with recent photographs of the children and reports about their academic and medical progress.

6. There was consequently no dispute about the mother’s core proposal for her to have sole parental responsibility for the children, for the children to live with her, and for the children to have no interaction of any sort with the father. The mother’s proposal to that effect was contained within her Amended Response filed on 16 May 2014.

7. In view of the narrowness of the ultimate dispute, the Independent Children’s Lawyer sought and was granted leave to withdraw from the proceedings.

The evidence

1. The father relied upon his affidavit filed on 13 May 2014.

2. The mother relied upon her affidavit filed on 16 May 2014 (excluding paragraphs [8]-[38]) and the Family Report dated 14 March 2014.

3. The father submitted the Family Consultant was biased against him and, with the consent of the mother, tendered a letter from his former wife directed to that issue.[2] I do not accept it as a proven fact, but even if the Family Consultant was biased against the father, such bias was irrelevant to the outcome of the proceedings because of the truncated nature of his final proposal, about which the Family Consultant had nothing to say. In any event, neither party eventually wanted to cross-examine the Family Consultant so her evidence can safely be accepted as correct.

   [2] Exhibit F1

Legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.

6. In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of children – primary considerations

Section 60CC(2)(a)

1. The children have not seen the father since May 2010 and have not spoken to him by telephone since April 2011 (see El Kazemde & Hanif [2013] FamCA 197 at [3]). The mother and children currently live inter-state at an undisclosed location in hiding from the father.[3]

   [3] Family Report, para 6

2. The Family Consultant conferred with the children in March 2014. The twins were uniformly critical of the father and their apprehensive demeanour was consistent with their criticism of him,[4] whereas the youngest child has no independent memories of the father – either positive or negative.[5]

   [4] Family Reports, paras 49-50, 56-58, 81

   [5] Family Report, paras 64, 81

3. The nature of the children’s presentation, together with the mother’s adverse reaction to the possibility of the children’s observation in the company of the father, inclined the Family Consultant against such an observation.[6] The children and the father were therefore not seen together.

   [6] Family Report, paras 9-11, 25, 31, 33-34, 81

4. The father believed the Family Consultant’s decision not to observe the children in his company was ill-conceived,[7] and so did his former wife,[8] but I do not accept the efficacy of their opinions. Even if, as the father believes, the mother has aligned the children with her and deliberately contaminated the children’s attitudes about him, the children would likely have been emotionally disturbed by being forced to submit to his company. There is no doubt the children’s filial relationships with the father have markedly deteriorated over the last few years because there has been a complete embargo upon any interaction between them. That fact is uncontentious, even though the father contends there was no valid basis for it.

   [7] Family Report, paras 15, 80

   [8] Exhibit F1

5. The father lacked any and all insight when he remonstrated with the Family Consultant that if the children were re-introduced to him they would spontaneously demonstrate their true love for him and reveal the mother’s wickedness.[9] Many years ago in Country S the children were spontaneously joyous when reunited with the father (see El Kazemde & Hanif [2013] FamCA 197 at [53]-[55]), about which the father informed the Family Consultant,[10] but that occurred when they were very much younger and they had only been separated from him for a period of months. Now they are considerably older and have been separated from him for years.

   [9] Family Report, paras 23, 80

   [10] Family Report, paras 15, 19

6. The conclusions are inevitable that the children do not presently have meaningful relationships with the father and, whatever be the nature of the residual relationships they individually retain with him, they currently derive no tangible benefit from them.

7. On the other hand, the children do have meaningful relationships with the mother and derive enormous benefit from them. Although the father was critical of the mother’s care of the children,[11] his acceptance they should continue to live exclusively with her was an unconditional acknowledgement of the children’s derivation of benefit from their relationships with her.

   [11] Family Report, paras 18, 21

Section 60CC(2)(b)

1. The former findings that the children and the mother remain at unacceptable risk of suffering physical or psychological harm by reason of their subjection or exposure by the father to abuse and family violence (see El Kazemde & Hanif [2013] FamCA 197 at [67]) remain as valid as ever.

2. The father’s attitude has not changed at all over the last year. When speaking with the Family Consultant he railed against those findings, still emphatically denying his violent treatment of the mother and misconduct with the children.[12] Although the father adduced no evidence about it during the final hearing, in final submissions he maintained his denials of misconduct in the face of the findings made at the former hearing in May 2013.

   [12] Family Report, paras 16-17, 22, 78-79

3. As was explained to the father, those findings were made on the available evidence according to the standard of proof prescribed for civil proceedings (see El Kazemde & Hanif [2013] FamCA 197 at [62]). These proceedings are finally determined on the basis of their accuracy and validity, even though he maintains the findings were erroneous. His persistent rebuttal of the findings only serves to demonstrate his lack of contrition. As was previously observed about the father, no reformation of his behaviour can be expected when he refuses to admit his past misconduct, expresses no contrition for it, and perceives no need for its modification.

4. There was no reasonable basis upon which orders could be fashioned which would simultaneously allow the restoration of the children’s relationships with the father and the preservation of their safety from the risk of harm posed by the father.

5. Even though not a consideration directly relevant to s 60CC(2)(b) of the Act, nor could orders be fashioned to satisfactorily protect the mother from the unacceptable risk of harm through family violence at the father’s hands (s 60CG(1)(b)).

Best interests of children – additional considerations

1. The most significant feature of the evidence pertinent to s 60CC(3) of the Act is the mother’s inability to cope with any order that would enable any form of interaction between her or the children with the father.

2. The mother still seeks out and receives medication and counselling for her anxiety over her former experiences with the father.[13]

   [13] Family Report, page 4, paras 28, 70, 82; Mother’s affidavit, paras 39-42, 55

3. When the mother attended upon the Family Consultant in March 2014 she was unable to contain her fear that she or the children would be exposed to the father. She shook uncontrollably and sobbed at the prospect. Arrangements had to be hurriedly made for the father to attend upon the Family Consultant on a different day.[14] The mother’s reaction was not feigned for forensic effect because the Family Consultant independently confirmed the mother becomes “virtually paralysed by fear” at the prospect of her and the children being found by the father.[15] The Family Consultant found the mother’s fear to be genuinely “all-consuming and debilitating”.[16]

   [14] Family Report, paras 10, 25-26; Mother’s affidavit, paras 50-53

   [15] Family Report, para 71

   [16] Family Report, para 82

4. The Family Consultant opined that:[17]

   If the children were ordered to spend time with their father it is likely that [the mother’s] emotional state would deteriorate to the point where she may be unable to function normally.

   [17] Family Report, para 83

5. The Family Consultant reached the conclusion:[18]

   What is in the children’s best interests is for them to continue the life they are currently leading with their mother, free of any anxiety that they may have to spend time with their father in the future. An order for no contact is likely to result in a marked decline in their mother’s stress and fear levels, which will in turn have a positive impact on the children.

   [18] Family Report, para 87

6. The Family Consultant therefore ultimately recommended:[19]

   …that the children have no contact with their father.

   [19] Family Report, para 91

7. A well recognised line of authority stipulates that a residential parent’s genuine fears about a risk of harm posed to the children by the non-residential parent may impinge so greatly upon the residential parent’s capacity and cause such disturbance in the residential household that all interaction between the children and the non-residential parent should be curtailed, even if the feared risk of harm is not objectively verifiable. Promotion of the child’s best interests in being cared for by a fully functional residential parent overrides any sense of injustice between the parties (see Marriage of Sedgley (1995) 19 Fam LR 363 at 371; Re Andrew (1996) 20 Fam LR 538 at 544-546; A & A (1998) 22 Fam LR 756 at 768-769; V & V [2001] FamCA 78 at [54]; H & K [2001] FamCA 687 at [36]-[38]; H & R [2006] FamCA 878 at [43]-[53]; Hepburn & Noble (2010) FLC 93-348 at [43], [49]-[64]).

8. The facts of this litigation and the Family Consultant’s opinions fall squarely within the ambit of those principles. The mother would simply be unable to cope with any form of interaction with the father, either by her or the children. She would collapse emotionally,[20] to the detriment of the children. The children are presently happy and making good academic and social progress in the absence of the father from their lives.[21] That progress should not be compromised.

   [20] Mother’s affidavit, paras 43-48

   [21] Family Report, para 76; Mother’s affidavit, para 58, Annexure P

Conclusions and orders

1. The former findings of “family violence” and “abuse” against the father necessarily mean the presumption of equal shared parental responsibility does not apply (s 61DA(2)).

2. As was agreed between the parties, the children’s best interests require them to live with the mother and for her to have sole parental responsibility for them.

3. The children’s best interests also require elimination of the father from their lives. That is achieved by orders that are prescriptive and enforceable. The orders are a combination of injunctions and suppression orders that preclude the father from ascertaining the whereabouts of the mother and children and, even if such information does come to his attention, preclude him from approaching the children and from attending upon or near to their home and schools.

4. While the father is understandably distressed at that outcome, he realises that once the children attain their majority they will be able to make their own decisions about with whom they associate. They may choose to seek him out when they are adults.

5. The father’s request for an order restraining the mother from taking the children outside Australia was misconceived. No such order is made as there was no evidentiary basis for it. The proposal was based on merely the father’s uninformed apprehension the children would not be returned to Australia if they are allowed to travel overseas.[22]

   [22] Father’s affidavit, paras 4-8

1. The mother holds dual citizenship in Australia and Country S.[23] She regards Australia as her home and the country of residence for the children. She has no current plans to take the children outside Australia, but foresees she may in future wish to take the children back to Country S to visit relatives. She said they would always return to live in Australia. I accept her evidence.

   [23] Mother’s affidavit, para 5

2. The father contended the mother is aware of a pending warrant for her arrest in Country S, which will be executed if she returns to that country, but the mother disavowed any knowledge of it. There is no evidence to prove the existence of such a warrant, but even assuming it exists and the mother really does know of its existence, it is highly unlikely she will voluntarily return to Country S with the children and risk her arrest. The father’s fears the mother will be arrested in Country S, leaving the children without any care and supervision, were therefore objectively groundless.

3. The mother now holds sole parental responsibility for the children so she will decide if and when the children travel outside Australia.

4. The mother sought an order removing the children’s names from the Airport Watch List. Such an order is made, since undischarged interim orders were made on 29 February 2012 restraining the parties from removing the children from Australia and placing the children’s names on the Airport Watch List.

5. The father’s request for the mother to provide him with recent photographs of the children not less than once every six months was opposed by the mother. She said she was fearful for the children’s safety and was worried the father may use the photographs to make enquiries within the Muslim community about the children’s whereabouts, which would lead to them being recognised and found. While that may be objectively unlikely, her reasoning was not spurious and, having regard to the mother’s fragile emotional state, the children’s best interests would be served by refusing the father’s application.

6. The father’s request for the mother to provide him with “Children Education” and “Children Health” progress reports at least once per year was also opposed by the mother. That application by the father is also refused.

7. Firstly, no such thing as a “Children Health” progress report exists. To order the mother to supply periodic reports to the father about the children’s medical condition would require her to compile them herself or commission them from treating general practitioners at her expense, merely for the father’s edification. Given the mother’s antipathy towards the father, an order to that effect would not be realistic and would invite contravention and further litigation.

8. Secondly, although the mother could periodically provide the father with school reports about the children’s academic progress, there are practical impediments. The reports would reveal the name of the schools attended by the children and thereby reveal the locality of their residence, unless the reports were redacted to remove all identifying features. The mother would also be obliged to send the reports to the father, because otherwise the father would need to know the name and address of the school to obtain them himself. If the mother was required to send redacted copies of the reports to the father the post marks on her letters may reveal the locality from which her mail was sent.

9. The mother voluntarily annexed redacted copies of the children’s 2013 school reports to her affidavit, which was filed and served upon the father for the purposes of these proceedings.[24] When asked about that in cross-examination the mother was shocked the reports had been disclosed to the father, even though her solicitor must have known that would be the consequence of annexure of the reports to the mother’s affidavit. Although logic would suggest that if the redacted school reports were supplied to the father once it can safely happen again, I accept the mother’s counsel’s submission that logic does not defeat or comprehensively answer the mother’s genuine fear about being located by the father.

   [24] Mother’s affidavit, Annexure P

10. I am satisfied that the orders set out at the commencement of these reasons promote the children’s best interests.

I certify that the preceding fifty three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 27 June 2014.

Associate: 

Date:  27 June 2014