Gilchrist and Karim (No.2)

[2017] FCCA 3065

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILCHRIST & KARIM (No.2) [2017] FCCA 3065

Catchwords:
FAMILY LAW – Parenting – Rice & Asplund.

Legislation:

Family Law Act 1975 (Cth)

Rice v Asplund (1979) FLC 90-725

Applicant: MR GILCHRIST

Respondent: MS KARIM

File Number: ADC 2460 of 2013

Judgment of: Judge Young

Hearing date: 22 November 2017

Date of Last Submission: 22 November 2017

Delivered at: Adelaide

Delivered on: 22 November 2017

REPRESENTATION

Counsel for the Applicant: Ms Dixon

Solicitors for the Applicant: A K Reeves & Associates

Counsel for the Respondent: Ms Smith

Solicitors for the Respondent: Joseph Ramsay Sanders Lawyers

ORDERS

1. That father file and serve an Response with 14 days of the date of this order and that thereafter the he shall stand as the applicant in these proceedings.

2. That the mother file and serve a Reply within a further 14 days of that date and she shall stand as the respondent in these proceedings.

3. That paragraph 3 the orders made on 21 April 2016 recommence and continue as follows;

   (i)Order 3 (b) commencing 13 January 2018; and

   (ii)Order 3 (c) commencing 14 July 2018.

4. That the matter be adjourned to 28 February 2018 at 9.30am for further consideration .

5. That the Initiating Application filed by the mother on 29 May 2017 *26 April 2017 be otherwise dismissed.

Notation: Order 5 has been amended pursuant to Rule 16.05(2)(g) of the Federal Circuit Court Rules2001 to correct filing date from 29 May 2017 to *26 April 2017.

IT IS NOTED that publication of this judgment under the pseudonym Gilchrist & Karim (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2460 of 2013

MR GILCHRIST

Applicant

And

MS KARIM

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This is an application by the mother to reopen orders made by this court on 21 April 2016.  Those orders were consent orders and they concerned four children:  W, who is nine, X, who is eight – apparently those children are commonly called W and X or X and W; it was not clear from the submissions – and Y who is seven and Z who is six. 

2. The orders were, as I say, made by consent, and provided that there be shared parental responsibility, the children live with the mother and spend time with the father on a graduated scale building up to at the end of this year overnights from Friday to Sunday in alternate weekends with changeover at a children’s contact centre.

3. On 26 April 2017, that is a year later, the mother made an application to the court to revoke the father’s time orders, and also seeking permission to be able to remove the children from the Commonwealth for the purposes of travel.  Both parties, as I understand it, are originally from (country omitted).  The mother’s application of 26 April did not make any time proposal for the children to spend time with the father; in other words, it was simply to revoke his time.

4. The affidavit in support of that application was quite brief. The most significant allegation it made was that the father had threatened to kill the mother and had threatened to kill the children. The mother alleged that the father said that in the context of telephoning her and asking her for sex and her refusal prompted his threats to kill.  There are other statements in her supporting affidavit such as, at paragraph 13:

   “The father is (omitted) and I am (omitted).  In (country omitted) the two groups want to kill each other and will kill children.  The (omitted) men also want to kill (omitted) woman.”

5. The affidavit did not go much beyond generalities of that nature.  There were no particulars in the affidavit in support of the alleged threats to kill – dates or circumstances and so on.  Notwithstanding the deficiencies of the drafting in the supporting affidavit, that affidavit resulted in a suspension of the time the children spent with the father. 

6. The father brought a contravention application – I am not sure if there was an order suspending the time but the mother certainly ceased permitting the children to spend time with the father – which was heard by me on 14 July. 

7. The parties gave evidence and were cross-examined over the course of that hearing.  The allegations that I have referred to were raised by the mother again in an affidavit, and in addition she made allegations such as the child Z, who was the youngest child, was almost run over by a car due to the father’s lack of care. 

8. When the mother gave evidence, I made comments in the ex tempore judgment about the unsatisfactory nature of the mother’s evidence.  I said that I was unable to reach any conclusion about the car incident because her evidence was not given in a manner which I could really understand.  It was incoherent.  The alleged threat to kill was examined in more detail and there were contemporaneous documents from a childcare centre where the mother had communicated her reasons for ceasing the children’s time or refusing to bring them to the contact centre. 

9. I concluded essentially because of the absence of any complaint at that time consistent with the mother’s evidence that her evidence given before me was untrue about the threats to kill.  I found the contravention by the mother proved.  The mother’s initiating application was adjourned to today for a Rice & Asplund hearing.  She filed further affidavit material, presumably in an attempt to bolster her application, particularly in view of my finding that the threat to kill mentioned in her original supporting affidavit contained allegations that I found to be positively untrue. 

10. The further affidavit relied on by the mother was filed on 30 October and contains some further allegations.  I will read one of them. In   paragraph 5, the mother reports the children saying that on a visit with the father (the children speaking are not identified):

    They also said their dad had taken them on the bus and just taken them to the shops, and then the father lost Y in (omitted).

11. That is the paragraph in its entirety.  As there is no further complaint about that, I assume Y, if he was lost, was retrieved.  It was submitted by counsel for the mother that that allegation was one factor that would justify reopening the issues in this case for reconsideration. 

12. I will go through the factors that were outlined by counsel apart from that matter.  The first point was that Z had been almost run over. 

13. I was unsatisfied that anything like that had happened.

14. The second point submitted by counsel was the paragraph I have just read was said in itself to justify reopening this case.  I found that submission a little short of astonishing. 

15. The mother’s affidavit also annexes a document which appears to be something recorded by the school chaplain, a Ms P.  It is headed and dated 22 September 2017, “Visit with Dad”.  I will read the entirety of it:

    W feels upset because she doesn’t like going on the bus to the city.  They go to (omitted), then get McDonald’s or KFC for lunch.

16. W, by the way, being one of the two older girls – W and X.  “W” and “X” are not the names that appear in the order.

17. W, who is actually W is nine years old.  I will continue:

    W feels upset because she doesn’t like going on the bus to the city.  They go to (omitted), then get McDonald’s or KFC for lunch.  W worries because dad says he hasn’t got enough money to buy things for them.  W finds it difficult to talk to dad and is not excited about the visits.  She would rather be at home with mum. 

18. X, who is X, is eight years old:

    X doesn’t like the visits with dad.  She doesn’t like going on the bus to the city and walking around the shops.  X doesn’t like talking to dad and is afraid of him.  She is not looking forward to the next visit and would rather be home with mum.  X likes lunch and that she has a choice of what to eat.  She worries about the visits and thinks about it a lot in her head, especially the day before.

19. Y, who is the seven-year old who is reported as saying:

    Y doesn’t like having the visits with dad, doesn’t like the bus trip into the city.  He doesn’t like food at lunchtime because it’s sweet and he just wants to stay at home with mum and eat normal food. 

20. Handwritten under that typed statement is this:

    I, Ms P, have recorded the above on behalf of Ms Karim–

    that is the mother –

    because of her English language skills, and in my role as school chaplain at (omitted) School, (omitted).

21. The document is signed by Ms P.

22. There is no affidavit from Ms P.  There is no explanation about the circumstances in which this statement is recorded.  There is no reference as to why it was recorded on behalf of the mother.  It is a very unsatisfactory document and it raises as many questions as it answers.  It is entirely consistent with the children being primed to go to the school chaplain and make these complaints, some of which are quite trivial.  The fourth point that was referred to is paragraph 15 of the mother’s affidavit.  I will read it.  She says that she forced the children to go to the contact centre on 21 October:

    But when we got there, W asked to speak to the man who was doing the handover service.  He agreed to do so so they went off to the side and spoke in English.  I could not hear or understand everything that was being said but they spoke for about 10 to 15 minutes.  I believe the man was trying to convince her to go on the visit with her father but she did not want to.  I heard her say to the man, “The father always lies”.  The man told W to give her father a chance, but she replied, “We have given him many chances.”  In the end, the other children went on the visit with their father, but W did not go.

23. It is said that that evidence justifies a reopening of these orders.  I disagree.

24. The fifth point was that there is a reference in the affidavit to the fact that the children see their father’s other children from another relationship. These children live in Melbourne.  The mother makes various complaints about what she understands happens when the children meet the father’s other children.  Consistently with the drafting of earlier affidavits, there are no particulars about when these events took place or what the children may have told the mother.

25. I will read the paragraph:

    Furthermore, the children do not like the father’s other children and whenever the father has had them together, he has made my children and myself look after his other children who are always very naughty when they are in the father’s care and they are very nasty and, in particular, his oldest child, A, is always kicking my children.  Also when the father is with his other children, he is always speaking in (omitted), and my children, who are (omitted), do not understand the (omitted) language.  I do not understand why he does not just speak English.

26. I find the drafting of that paragraph quite unsatisfactory for the reasons I have given.  In conclusion, the mother makes no proposal whatsoever for the children to spend time with the father.  I think I can infer from that that she does not intend that the children spend any time with the father.  Her counsel said that what she wants is for the children to be spoken to by a family consultant, presumably, and for the children to express wishes, bearing in mind the children are nine, eight, seven and six. 

27. It seems to be then assumed that the children will say they do not wish to spend time with the father and court orders will be made suspending the father’s time.  That, I infer, is the mother’s intention.  I found the application and the supporting evidence to be very unsatisfactory.  My real concern, and I am unable to make a finding about this, is that the evidence, however deficient, really indicates a determination of the mother to remove the father from these children’s lives.  Her conduct throughout this proceeding since the application to suspend time on the allegations which I found were untrue suggests that that may be her agenda. 

28. As long as she thinks that by continuing to make these applications on such flimsy grounds that this court is likely to suspend the children’s time with the father she may continue making applications.  In my view, there is nothing that I have heard today to suggest that she has a realistic assessment of the importance of these children having a relationship with their father.  I am not satisfied that there is any material before me which merits a reopening of this case.  The application is dismissed.

29. The mother has recently had another child. The father is the father of that child as well. The mother has not informed the father of the child’s name. He proposes to seek orders about that child. Accordingly he will become the applicant in relation to that child once he amends his Response accordingly.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 8 December 2017